August 1, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHARIFF INGRAM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Number 00-06-0764.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 2, 2007
Before Judges A. A. Rodríguez, Sabatino and Lyons.
Following a jury trial that he did not attend, defendant Shariff Ingram was convicted of felony murder, conspiracy, robbery, and theft. He appeals his convictions on numerous grounds. Although we find most of his arguments without merit, we reverse the convictions and remand for a new trial because the jury instructions on issues of accomplice liability did not adhere to the requirements of State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993).
This case arises out of a shooting and other events that took place in an apartment in Woodbridge on February 15, 2000. The apartment was situated within a complex of over a hundred units. The complex consists of several two-story walk-up buildings, each housing eight to ten units. The apartment where the shooting took place served as the residence of a man named Sean Taylor, whose sister actually leased it. Taylor apparently used the apartment to distribute narcotics.
Several facts are undisputed. On the evening of February 15, defendant drove two men to the apartment complex. At about the same time, another individual, Salaam Brown, drove a second vehicle to the scene. After the two vehicles arrived, the victim, Corey Maddox, was shot inside the apartment. At the time of Maddox's shooting, defendant was not present in the room. After the shooting, defendant drove back to Newark with the same two men he had taken to Woodbridge. Later on, defendant was paid a sum of money by Brown. Brown had been inside the apartment at the time of the incident. The following day, February 16, Maddox was pronounced dead at a local hospital. Shortly after these events, Brown himself was killed.
The remaining facts are substantially contested. We now summarize the relevant additional proofs offered by the prosecution and by the defense at trial.
Earlier in the day on February 15, 2000, Brown encountered Lynn Anthony Smith*fn1 on the street. Smith had met Brown three years earlier, and he knew that Brown was a drug dealer.
After their street encounter, Brown drove Smith home in his silver Mercedes. Brown asked Smith how to get to the Woodbridge Mall, allegedly because he needed money. Smith responded that he wanted to go to the mall with Brown in order to so some shopping. Brown temporarily left Smith, and returned to his residence about an hour later.
At that point defendant was sitting outside in his burgundy car, also waiting to go to the mall. Brown instructed Smith to travel with defendant. Defendant and Smith followed Brown to pick up Christopher Moore, another co-defendant, in Orange. According to Smith's testimony, during his ride in defendant's car they discussed going to the mall, but there was no discussion about guns.
Moore joined Smith in defendant's car, and the three of them proceeded to the Garden State Parkway. Brown also traveled the same route. Along the way, Smith noticed that there were two women in Brown's car.
At about 5:30 p.m., defendant pulled his car into the mall parking lot. Brown then arrived, still with the women. Defendant, Smith and Moore went into the mall, while Brown remained in the parking lot. Ten minutes later, the three men came out of the mall. By this point, the two women were out of sight. Brown told them that he needed to go to the apartments across the street in order to pick up his money. Defendant, Smith and Moore then followed Brown to the apartments. The four men were admitted to the building by another person who was arriving at the same time.
Smith contends that he was the last person up the stairs. When he entered the apartment, Smith saw Brown, wearing a black trench coat and holding an old "military type gun." This allegedly was the first time that Smith saw the gun that was used to shoot Maddox. Smith also noticed Moore in the apartment, along with the two women (who he later learned were Fatima Harris and Jasminé Hampton*fn2 ), as well as two other men situated on the floor. Moore, Smith, Brown, and defendant all had rags on their faces. Smith did not see defendant, but assumed that he was in the kitchen because defendant had been ahead of him on the stairs.
While in the apartment, Smith observed that Moore also had a gun and was asking about the money. The gun was an automatic, "probably" a nine-millimeter caliber. Moore pointed his gun at another man, who was a little taller than him, and directed him into the bedroom.
Moore went into the bedroom and Smith assisted him in removing a metal safe. The safe was a few feet high and wide. Smith held the door open while Brown took the safe and left the apartment with it. According to Smith, this whole process took about three minutes. Loud and continuous music played the entire time.
When Smith and Brown got outside, the women were already in the Mercedes. They popped open the Mercedes' trunk for Brown to put the safe in it. Defendant was already in his own car. Smith got back in the car with defendant and Brown returned to the apartment. Smith and defendant then waited for Moore, who came down with Brown about five minutes later.
Smith claimed that, during the entire episode at the apartment, he did not possess a gun. He also claimed that he never saw or heard anyone get shot.
Brown and defendant each drove from the scene in their respective vehicles. Defendant drove Smith and Moore, and Brown drove the two women. According to Smith, when Brown reached the Parkway, he began to drive erratically. Defendant was driving normally. Eventually, Smith lost sight of Brown's Mercedes.
Defendant dropped Smith off when they returned to Newark. According to Smith, this was the last time that he saw defendant.
Smith then went to the Livingston Mall. When Smith got back home to his cousin's apartment, Brown, Moore, and the two women were there. Brown then apologized for what happened that day and gave Smith $800. The stolen safe was also there. Smith claimed that he did not know at that point that anyone had been shot. Two days after the incident, Brown gave Smith a brand new leather jacket with $500 in the pocket.
About four days after the incident, Smith heard that someone had been shot. He asked Brown about it, to which Brown allegedly responded: "yeah, we did it. I have nothing to lose.
I got to pay for these lawyers. I'm not going back to jail . . . ." Moore was also present during the conversation. When Smith started to argue with Brown, Moore interceded, allegedly saying, "nothing we could do about it now, we did what we do so f*** it . . ."
The State also presented testimony from Appolon Noel, who was present in the apartment during the shooting. Noel was a sound recording engineer who knew Sean Taylor as a client. He was aware that Taylor was a drug dealer. Noel met the victim, Maddox, at Taylor's apartment in Woodbridge.
By Noel's account, when he arrived on February 15, 2000, the apartment was occupied by a pair of black twin males*fn3 that he had seen before, along with Taylor and Maddox. At the time, Taylor and Maddox were recording music. After 2:00 p.m., Taylor left with one of the twins. Then Maddox went to the mall and picked up two young women.
Noel was looking for a tape recording in the apartment bedroom when a male came in, holding a gun between eighteen inches and two feet long in his hand. Noel described the gun-wielding man as being about his height, a bit bigger, black, in his upper twenties, and wearing a dark hood with a scarf covering his face to his mouth. The gun looked to Noel to be old-fashioned and longer than a regular handgun, but was not a machine gun. The gun appeared black on the front end and brown in the back. The intruder told him to get down on the floor. He then grabbed Noel's arms and put them behind his back.
Noel was then taken out into the living room, where he saw Maddox laying on the floor. Noel also saw three other individuals, one next to the window, another near the kitchen and the third in the kitchen. The women were not there when he came out. Noel was told to lay on the living room floor.
While laying on the floor, Noel heard the footsteps of one or two people, who seemed to be looking for money. A music recording was playing in the living room. One man tied Noel up in speaker cable, with his arms tied to his feet behind his back.
Maddox told the intruders there was no money on the premises. The music then stopped. Noel heard a female voice and at least one other male voice in the apartment. However, he could not see them because he was face down with his eyes closed. The music started up again and the television went on. Noel then heard a gunshot from behind him. The shot was followed by silence, a draft of air, and then a scratching, scraping sound.
Noel managed to untie himself and get up off the floor a few minutes later and found Maddox shot. Maddox had been face down before and after the shooting. Noel moved him in an attempt to assist him and put a towel on his head. Noel realized that the scratching sound he had heard was Maddox struggling to breath through the blood. Noel called Taylor to inform him of the situation, but he did not call 9-1-1. In any event, police arrived at the scene about fifteen to twenty minutes after the shooting.
The State also moved into evidence at trial a transcribed statement that defendant had give to the prosecutor's office on April 20, 2000. Defendant advised in his statement that he was twenty-nine years of age at the time of these events and was living in Newark. Defendant stated that he knew Brown because he was a cousin of his girlfriend. On the day of the shooting, Brown asked defendant's assistance in picking up some money in Woodbridge. Defendant consequently led Brown to the Woodbridge Mall in his girlfriend's burgundy Saturn automobile. Brown followed in his grey Mercedes. Defendant noticed that there were two women in the Mercedes back seat. After spending some time at the mall, defendant and Brown left, and then drove across the street into an apartment complex to collect Brown's money.
The door to the apartment was left open for them. Defendant contented, contrary to Smith's testimony, that he was the last one up the stairs. According to defendant, he never actually went into the apartment because when he looked into the apartment he saw people with rags covering their faces. Instead of entering, he went back downstairs to his car. He started it up, and talked to one of the girls outside for about five minutes before the other girl came downstairs as well. About twelve minutes later, the other men came out.
Moore then got into defendant's car. Defendant also saw Brown with the safe, which defendant perceived as white and about eighteen inches square. Defendant then attempted to follow Brown's car back to Newark, but failed to keep up with him because Brown was driving erratically.
In his statement, defendant contended that he had been unaware that anyone had been injured at the apartment. Defendant acknowledged that Brown paid him $400 or $500, which he assumed was for the favor of going with him to Woodbridge. Defendant had only seen Brown around a few times after the incident. He asserted that he did not know about the death of Maddox until the day of his interview by the prosecutor's office.
The State also presented a written statement that Hampton*fn4 gave the prosecutor's office on March 14, 2000. She had known Taylor and Brown before the incident. In particular, Hampton knew that Taylor was a heroin and cocaine dealer, and that he owned a business called Wild Eye Records. According to Hampton, Brown was mad at Taylor because he had allegedly said something that had led to one of Brown's friends being killed. Consequently, Hampton sensed that Brown had wanted to kill Taylor. Hampton and a friend of hers had arranged to meet with Maddox, who she knew was Taylor's brother and who she regarded as a rap star. Hampton hoped that Maddox would help her and her friend get their start in the music world. Toward that end, Brown had given Hampton $50 to record a music tape with Maddox.
Hampton recounted that on the day in question, February 15, she and her friend got up at 9:30 in the morning. They smoked some marijuana at a friend's house and then boarded a bus from Newark to Woodbridge, where Maddox and Taylor lived. Hampton had never been to the apartment before. Maddox came over and met them at the mall, and they walked around the mall for twenty minutes before heading to the apartment.
Upon arriving at the apartment Hampton was introduced to Noel, the music engineer. She then went to smoke a cigarette on the landing outside on the second floor. While outside she saw a man downstairs, who instructed her not to lock the door when she went back inside. She complied, sensing that the man was there for drugs or money, but that no one was going to get hurt. She did not know the man, but described him as having a burgundy Saturn.
When Hampton went back into the apartment, her friend went out to smoke while Maddox was rolling a marijuana cigarette inside. Hampton also saw some heroin in a black book bag inside the apartment. Hampton stated that she knew that her friend and Brown had been planning a robbery, but contended it was not until that moment in the apartment that she realized it was planned to happen that day.
A few minutes later, Brown entered the apartment. He yelled at Hampton to leave, which she did. Hampton's friend, meanwhile, jumped over the balcony outside. The two women met outside and ran down the street towards the mall. On their way to the mall, Brown picked them up in his Mercedes. He informed them that he had taken a safe from the apartment. The three of them went back to Newark. Although Brown told Hampton that he had tied up people in the apartment, he did not tell her that anyone had been shot.
Later that night at a hotel, Hampton learned that Brown had taken some heroin and marijuana out of the apartment, and was arranging to have his contacts sell it. The following day, Brown gave Hampton $700 and her friend, Fatima Harris, $1,000. It was not until the next day that Hampton allegedly learned that Maddox was dead. This revelation caused Hampton to question Brown about whether he had killed Maddox. Brown denied it and told Hampton to mind her own business.
At the time of her interview with the prosecutor's investigator, Hampton claimed to be pregnant with Brown's child. Brown had been killed within a week or two after the February 15, incident at the apartment. Hampton stated that she subsequently learned that Taylor had previously placed a $25,000 retaliatory "hit" on Brown and $10,000 "hits" each on Hampton and Harris for their involvement in the apartment robbery and Maddox's shooting.
Apart from these proofs, the State also presented testimony from several law enforcement personnel who were involved in the investigation into the February 15, 2000 incident. The witnesses confirmed that the Woodbridge apartment was a narcotics distribution center. They noted that although a gun had been found on a shelf in the bedroom closet, the firearm used to shoot Maddox was never recovered. A nine-millimeter spent cartridge was found near Maddox's body. An autopsy of Maddox confirmed that he had been shot once in the head with a handgun. The police also recovered marijuana, drug paraphernalia, and bullet fragments from the crime scene.
In June 2000, a grand jury indicted defendant, Smith, Moore and Hampton. The indictment charged the four defendants with conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2, (Count I); second-degree robbery, in violation of N.J.S.A. 2C:15-1 (Counts II to IV); burglary, in violation of N.J.S.A. 2C:18-2 (Count V); felony murder, in violation of N.J.S.A. 2C:11-3a(3) (Count VI); theft, contrary to N.J.S.A. 2C:20-3 (Count VII); and possession of a firearm for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count VIII).
After various pretrial proceedings, the trial court held a status conference on October 21, 2002, two days before jury selection scheduled for October 23. On that date, defendant, who was present in court, was informed by the judge that Smith had pleaded guilty. There was also a discussion on the record about the possible existence of a bench warrant for defendant's arrest on a matter in another county.
On October 23, 2002, the day of jury selection, defendant did not appear in court. It was also confirmed that day that there was a warrant out for his arrest in Essex County for his failure to appear at a different proceeding. The trial judge instructed counsel to attempt to locate defendant, and proceeded with the trial in defendant's absence. Because of the guilty pleas of Smith and Hampton, the sole indicted defendants left for trial were defendant and Moore.
Defendant again did not appear at trial the following day and his attorney was unable to locate him. In the meantime, the judge instructed the jury not to consider the absence of defendant one way or the other. By the last day of trial, October 29, 2002, defendant still had not been located. The last time his lawyer or anyone had seen him was on October 21, 2002 when he was in court for the status conference. The prosecutor had searched prison databases, but could not find him. Additionally, an investigator represented that he had checked the local hospitals and the state prisons and still had been unable to find defendant. Consequently, the judge determined that the jury should be told that they could make an inference of defendant's guilt if they thought he fled to avoid conviction.
Eventually, defendant was arrested in Warren County on November 7, 2002 four or five days after a bench warrant was issued following his conviction. Defendant again tried to flee at that time. During the course of his flight, he was shot in Pennsylvania. He subsequently pled guilty in Pennsylvania to fleeing and eluding.
Although defendant did not testify or appear at his trial, his counsel did present one defense witness, Hassana McRae. McRae had been living with Brown for about eight or nine months as of February 2000. Shortly after February 15, 2000, Brown came home one night and told McRae that he had robbed and murdered two people in Woodbridge. McRae testified that Brown also had identified two other individuals, one named Richardson and the other named Hock, as being involved in the robbery and shooting. Those individuals were not the subject of any other proofs.
After all of the proofs had been submitted, the State moved to dismiss the gun-possession charge, and to downgrade the burglary charge from second degree to third degree. The judge granted that motion. Counts III and IV of the robbery charge, alleging forcible injuries to Jihad North and to Noel, were also dismissed.*fn5 On the next day, October 30, 2002, the judge dismissed the burglary count in its entirety.
Following the jury charge, a verdict was returned on the second day of deliberations. Defendant was convicted of all counts of the indictment which had not been dismissed, namely conspiracy, robbery, felony murder and theft. Co-defendant Moore, however, was acquitted on all counts.
Defendant subsequently moved for judgment of acquittal and/or a new trial. The motion was denied.
On October 31, 2003, defendant was sentenced to thirty years on the felony murder conviction, with a thirty-year parole disqualification. The judge merged the conspiracy, robbery and theft convictions into the felony-murder conviction.
Defendant appeals, raising the following points:
THE COURT VIOLATED STATE V. BIELKIEWICZ WHEN IT FAILED TO CHARGE THAT ALTHOUGH THE PRINCIPALS COMMITTED ROBBERY, INGRAM MAY HAVE ACTED AS AN ACCOMPLICE ONLY TO A LESSER-INCLUDED OFFENSE. (Not Raised Below)
THE COURT ERRED IN PROVIDING THE JURORS WITH A FLIGHT CHARGE, BECAUSE THE PREJUDICIAL EFFECT OF THAT CHARGE OUTWEIGHED ANY PROBATIVE VALUE THE DEFENDANT'S FAILURE TO ATTEND THE TRIAL MAY HAVE HAD.
THE PROSECUTOR MISREPRESENTED THE LEGAL DEFENSE TO FELONY MURDER, AND THE COURT ERRED IN FAILING TO CORRECT THE PROSECUTOR'S MISSTATEMENTS. (Not Raised Below)
HINDERING APPREHENSION IS A LESSER-INCLUDED OFFENSE OF ROBBERY AS AN ACCOMPLICE, AND THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO PROVIDE THE JURORS WITH THE OPTION OF CONVICTING DEFENDANT OF THAT LESSER OFFENSE. (Not Raised Below)
We first consider the jury charge, and specifically defendant's argument*fn6 that the charge violated State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993) because it failed to advise the jury that they could find that even if the principals involved in the February 15 incident committed robbery and an associated murder, defendant, as an accomplice, could have possessed a less-culpable state of mind and be only liable as accomplice to theft, not robbery.
Defendant did not object to this aspect of the charge at trial. However, "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). See also State v. Fair, 45 N.J. 77, 93 (1965) (finding that "in the factual context of th[e] case that the trial court's failure to charge the jury on [a specific] issue sua sponte was nothing less than plain error requiring reversal").
Accordingly, although the plain error standard of R. 2:10-2 applies to our review of the charge, we must assure that a defect in the charge was not apt to have been consequential. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberation should take," the conviction is to be reversed. Id. at 290. Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.), certif. denied, 156 N.J. 387 (1998) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).
The prosecution's case against defendant was predicated on a theory of his liability as an accomplice to the robbery (and the associated fatal shooting of Maddox) that took place in the Woodbridge apartment while he was indisputably outside. The State did not allege that defendant physically took any money, drugs, or the safe from the premises, nor that he pointed or discharged any firearms. His role as an accomplice essentially stemmed from his involvement in driving Moore and Smith to and from the crime scene while guiding Brown to that location in Woodbridge, and his subsequent receipt of cash from Brown.
In cases such as this involving allegations of accomplice liability, the jury instructions must be particularly specific and thorough. First, it must be made clear to the jury that "[t]o render both defendants [the principal and the accomplice] guilty it is essential that they shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act." State v. Fair, supra, 45 N.J. at 95. Mere presence at the scene of the crime, however, is insufficient to render a defendant guilty. Ibid.
Second, where the proofs reasonably suggest that a defendant could be convicted of a lesser included offense than that a co-conspirator, the court should "make specific reference to those offenses in the context of its charge on accomplice liability." State v. Harrington, supra, 310 N.J. Super. at 278 (overturning a robbery conviction where the jury was not instructed that, even if it found that the principal was guilty of armed robbery, it could find the co-defendant guilty as an accomplice to second degree robbery). A failure to supply such guidance creates a "risk that the jury will compromise on a guilty verdict for the greater offense." Bielkiewicz, supra, 267 N.J. Super. at 534.
In Bielkiewicz, we considered circumstances in which the co-defendant had been convicted as an accomplice to murder, but the jury charge had not made clear that even if the principal had taken the victim's life purposefully or knowingly, the accomplice could have had a lesser state of mind of recklessness, and thus be guilty as an accomplice to the lesser offenses of aggravated manslaughter, manslaughter or assault. Even though defense counsel in Bielkiewicz had not objected to that omission from the charge at trial, we held that the flaw nonetheless was reversible error because the charge "did not convey an accurate and complete understanding of these [accomplice liability] principles." Id. at 530. In particular, we found that the court failed to tell the jury that if it found the accomplice had the purpose to promote or facilitate an assault upon the victim, but did not share the principal's purpose to cause death or serious bodily injury, he should be acquitted of murder but could be found guilty of aggravated manslaughter, manslaughter, or assault. Consequently, the court's instructions could have given the jury the impression that if they found the principal guilty of murder they would be required either to acquit or also to convict the alleged accomplice of murder. [Id. at 534.]
We concluded in Bielkiewicz that the defect in the charge had the clear capacity to lead to an unjust result, even though defense counsel had not timely objected. We thus vacated the conviction and remanded for a new trial. Id. at 435. See also State v. Harrington, supra, 310 N.J. Super. at 278 (applying Bielkiewicz and reversing a conviction based on accomplice liability); State v. Jackmon, supra, 305 N.J. Super. at 289 (same).
Here, defendant was charged with conspiracy to commit robbery, robbery as an accomplice, felony murder, and theft. He claims that the judge should have instructed the jury that he could have been guilty of only hindering apprehension or theft even if the principals were guilty of robbery and felony murder. Pursuant to State v. Thomas, supra, the trial court had no obligation to instruct the jury on the related, but not lesser-included, offense of hindering apprehension. However, we agree with defendant that the accomplice charge relating to theft was incomplete and was not consistent with Bielkiewicz.
The trial judge explained to the jury on three separate occasions, twice in the courtroom and also in a written instruction supplied to the jury during deliberations, the legal standards guiding its task of assessing defendant's guilt on the charge of robbery. As the charge instructed, the burden placed on the State was to prove:
1. that Salaam Brown and or Christopher Moore committed the crimes of robbery and theft as [the court has] defined them.
2. that [defendant] did aid or assist them in committing the robbery and theft.
3. that [defendant's] purpose was to promote or facilitate the commission of the robbery and the theft.
4. that [defendant] possessed the same criminal state of mind that is required to be proved against the persons who actually committed the crimes.
Although the elements of theft and robbery were both appropriately defined for the jury, the charge did not specify those crimes in relation to the concept of accomplice liability. In particular, the charge omitted any guidance, as mandated by Bielkiewicz, that the jury could convict defendant only of theft even if the jury thought one or more of the other participants were guilty of robbery.
The court's jury instruction did track the first Model Jury Charge for accomplice liability. Model Jury Charge (Criminal), "Criminal Liability for Another's Conduct/Complicity - No Lesser Includeds" (1995). However, it did not provide the supplemental instructions included in the second accomplice liability charge designed for lesser included offenses. Model Jury Charge Criminal, "Criminal Liability for Another's Conduct/Complicity -Lesser-Includeds" (1995). This alternative portion of the charge was specifically designed "to address circumstances similar to those in State v. Bielkiewicz." Ibid. The comments with that charge indicate that the trial judge should tell the jury that
If, however, you find the defendant not guilty of acting as an accomplice of [the principle] on the specific crime(s) charged, then you should consider whether the defendant did act as an accomplice of [the principle] but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment.
Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his/her own state of mind and not on anyone else's. [Ibid.]
See also State v. Savage, 172 N.J. 374, 392-394 (2002) (approving a jury charge similar to the supplemental language in the model charge, although vacating the conviction because of apparent lingering jury confusion).
We can understand the trial judge's oversight in omitting the supplemental language in the alternative version of the model charge, given that it was not mentioned by trial counsel, and also because the charge conference focused upon other facets not germane to this appeal. Nevertheless, we are persuaded that the omission transgressed the holding of Bielkiewicz, and had the clear capacity to produce an unjust result. The omission could have had far-ranging consequences, for if the jury had acquitted defendant only of having the state of mind to aid a theft, rather than a robbery, there would have been no statutory predicate to convict him of the first-degree crime of felony murder. N.J.S.A. 2C:11-3a(3). Moreover, the jury submitted questions during deliberations about the significance of an individual's mere presence and also about the felony murder count, suggesting that it may have had some difficulty appraising defendant's level of culpability in the case. Moreover, the acquittal of Moore based upon the same proofs, although not consequential in itself, enhances our concern that the verdict as to defendant may have been inequitable.
For these reasons, we vacate the judgment of conviction and remand for a new trial, with appropriate instructions on accomplice liability consistent with Bielkiewicz and with this opinion.*fn7
Because we have remanded this case for a new trial on the accomplice liability issue, we need not reach the other issues presented on appeal. We do note in passing that we discern no merit in defendant's contention, expressed in Point III of his brief, that the prosecutor's misstatements in summation concerning the legal defenses to felony murder were unduly prejudicial. R. 2:11-3(e)(2). In any event, we are confident that such misstatements will not be repeated in a new trial.
As to the court's decision to allow proof of defendant's flight from the first trial to be considered circumstantial evidence of guilt, and to provide an accompanying instruction to the jury, we defer on addressing that issue. We do so in anticipation that a fuller record will now be presented to the trial judge on that issue. On remand, the record may be amplified concerning the circumstances of defendant's absence from trial, and whether his departure was prompted by fears about the outstanding bench warrant on other unrelated charges rather than a consciousness of guilt of the instant offenses. The remand may also consider the admissibility, under N.J.R.E. 404(b), of defendant's subsequent attempt to flee when he was discovered in Pennsylvania.
On remand, we suggest that the judge, in his discretion, may wish to conduct an evidentiary hearing under N.J.R.E. 104 to explore these issues more fully, consistent with State v. Mann, 132 N.J. 410, 423-24 (1993). The practical necessity to explain to a jury defendant's absence from trial will also be eliminated, since he presumably will attend the second trial. The trial judge will also have the opportunity on remand to consider more extensive briefing from counsel on the flight issue, including but not limited to the Supreme Court's recent opinion in State v. Williams, 190 N.J. 114 (2007) (addressing the probative value under Rule 404(b) of post-crime conduct as consciousness of guilt).
The convictions are vacated, and the matter is remanded for a new trial. We do not retain jurisdiction.