November 13, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCELLUS R. WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment Nos. 02-05-0710 and 02-05-0711.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2005
Decided December 13, 2005
Remanded By Supreme Court July 12, 2007
Resubmitted October 5, 2007
Before Judges A.A. Rodríguez and C.S. Fisher.
Following a two-day trial, defendant was convicted of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b). He then entered a guilty plea to a separate indictment, which charged him with the second-degree offense of being a person prohibited from possessing a weapon, N.J.S.A. 2C:39-7(b). The trial judge sentenced defendant to a nine-year prison term with a five-year period of parole ineligibility on the conviction for violating N.J.S.A. 2C:39-7(b), and a concurrent four-year term on his conviction for violating N.J.S.A. 2C:39-5(b).
On appeal, defendant argued in Point I that the trial judge erred in denying his motion to suppress evidence. We agreed and reversed, without reaching the arguments contained in defendant's Points II and III. 381 N.J. Super. 572, 578 (App. Div. 2005). The State's petition for certification was granted, 188 N.J. 355 (2006), and the Supreme Court reversed our ruling on the suppression order and remanded the matter to us for consideration of the other issues raised by defendant in his appeal, 192 N.J. 1, 18 (2007), to which we now turn.
In his appeal, defendant raised the following arguments, which we did not address when the matter was first before us:
II. THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY (NOT RAISED BELOW).
A. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY AS TO THE STIPULATION ENTERED BY THE DEFENSE CONSTITUTED PLAIN ERROR BECAUSE THE JURY WAS DIRECTED TO ACCEPT THE STIPULATION (NOT RAISED BELOW).
B. THE TRIAL COURT COMMITTED PLAIN ERROR BY DIRECTING THE JURY TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (NOT RAISED BELOW).
III. THE NINE (9) YEAR BASE TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR BEING A PERSON WHO IS PROHIBITED FROM POSSESSING A HANDGUN WAS MANIFESTLY EXCESSIVE AND ILLEGAL.
A. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE SENTENCE FOR A CRIME OF THE SECOND DEGREE.
B. IMPOSITION OF A SENTENCE IN EXCESS OF THE PRESUMPTIVE SEVEN (7) YEAR SENTENCE FOR A SECOND DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN BLAKELY V. WASHINGTON.[*fn1 ]
We find insufficient merit in Point IIA to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we conclude that the trial judge's instructions during his jury charge that the jurors were to decide upon the defendant's "guilt or innocence" constituted plain error and warrants a new trial. Accordingly, we need not address the sentencing issues raised in Point III, although we would observe that because defendant was sentenced prior to the Court's decision in State v. Natale, 184 N.J. 458 (2005), and was given a prison term that exceeded the former presumptive term for violating N.J.S.A. 2C:39-7(b), we would have, if necessary, remanded the matter for resentencing on that aspect of the judgment of conviction.
Defendant's Point IIB is based upon the fact that twice during his final jury instructions, the trial judge advised the jury that it was to decide on defendant's "guilt or innocence." Early in the charge, the judge stated the following:
I remind you that the rulings that I made during the course of the trial concerning admissibility or limitation of evidence would be binding. You should . . . not speculate about anything that was not allowed to be admitted and to the extent that there w[as] a limitation placed upon the admissibility of any evidence, you should try to [adhere to] the scope of the limitation that was imposed . . . upon the . . . admission of the evidence, but under no circumstances should you believe that any of the rulings that I made should suggest how the case ought to be decided. That's for you to do and it is not my role to make factual determinations or to . . . ultimately . . . determine the guilt or innocence of the defendant. [Emphasis added.]
The judge correctly instructed the jury in numerous other areas, but then advised the jurors:
With respect to each of the charges of the Indictment, you will make -- you will have to make an independent assessment. You will be reviewing each of the charges that have been asserted and the defendant is entitled to have his guilt or innocence separately considered on each Count by evidence which is relevant and material to the particular charges based on the law as I will give it to you. [Emphasis added.]
When the jury returned its verdict, the judge asked the foreman whether the jury reached on each count "a unanimous decision as to innocence or guilt" (emphasis added); the foreman responded in the affirmative.
Defense counsel did not object to these instructions and, on appeal, defendant recognizes that to secure reversal on this ground, he is required by R. 2:10-2 to demonstrate to us that the judge's mistakes in the jury charge constitute plain error.
As compelled by the due process clauses of our Federal and State Constitutions, "the State bears the burden of proving beyond a reasonable doubt every element of an offense." State v. Medina, 147 N.J. 43, 49 (1996) (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed. 2d 368, 375 (1970)). The reasonable doubt standard, said the Court, "provides 'concrete substance for the presumption of innocence,' and reduces the risk of wrongful conviction." State v. Medina, supra, 147 N.J. at 50 (quoting Winship, supra, 397 U.S. at 363, 90 S.Ct. at 1072, 25 L.Ed. 2d at 375).
In Medina, the Court thoroughly canvassed the subject and concluded that trial courts in this State should thereafter be required to charge every criminal jury with the following definition of reasonable doubt:
The government has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is necessary to prove only that a fact is more likely true than not true. In criminal cases, the government's proof must be more powerful than that. It must be beyond a reasonable doubt.
A reasonable doubt is an honest and reasonable uncertainty in your minds about the guilt of the defendant after you have given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have.
Proof beyond a reasonable doubt is proof, for example, that leaves you firmly convinced of the defendant's guilt. In this world, we know very few things with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced of defendant's guilt, you must give defendant the benefit of the doubt and find him not guilty. [State v. Medina, supra, 147 N.J. at 61.]
We are mindful that the trial judge here instructed the jury by using the language required by State v. Medina, but, as we have observed, the judge also at times erroneously described the jury's task as deciding defendant's "guilt or innocence."
In State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003), which was decided two months before the jury was charged in the case at hand, we held that a jury charge that uses the phrase "guilt or innocence" to describe the determination a jury is required to make is erroneous and inconsistent with an accused's presumption of innocence. As we then held,
A jury is asked to consider the evidence and determine whether a defendant is guilty beyond a reasonable doubt. If the jury concludes that the State has not carried its burden of proof, it returns a verdict of not guilty. A verdict of not guilty is not synonymous with innocence; innocence connotes a person free from blame. A not guilty verdict simply means the jury found that the State did not carry its burden of proof. [Ibid.]
Even though the trial judge in State v. White had provided the jury with a reasonable doubt charge consistent with that required by State v. Medina, as here, we nevertheless concluded that "[t]he injection of the concept of innocence . . . may tend to reduce the State's burden of proof because of the starkly different choices presented to the jury." Ibid. As a result, we directed that "the use of the term 'guilt or innocence' should be avoided in the future." Ibid.
The State relies on our more recent decision in State v. Vasquez, 374 N.J. Super. 252, 264 (App. Div. 2005) (internal quotes and emphasis omitted), where defendant asserted that it was erroneous for the trial judge to instruct the jury that "defendant is entitled to have his guilt or innocence separately considered on each count by the evidence that's relevant and material to that particular charge, based upon the law as I will [now] give it to you." Like the matter at hand, defense counsel in Vasquez failed to object. We then reiterated what we held in White: "[j]uries should always be instructed to determine whether or not the State has proved guilt beyond a reasonable doubt, and never instructed to decide whether a defendant is 'guilty' or 'innocent.'" Id. at 265. However, we also held in Vasquez, without elaboration, that there was "no likelihood that the judge's misstatement affected the jury's verdict in this case." Ibid.
The State argues that we should follow the harmless-error approach adopted in State v. Vasquez. Vasquez, however, is distinguishable by the fact that the mistake deemed harmless there was made three times here -- a fact which served to increase the severity of the harm and the likelihood that the jury was misguided by it. Moreover, we decline to follow Vasquez because a description of the jury's function in a criminal matter as choosing between the defendant's guilt or innocence strikes at the constitutional guarantee of the presumption of innocence and entitlement to the imposition of the reasonable doubt standard on all aspects of the offenses charged.
Moreover, as has been consistently held, errors in jury instructions in criminal matters are ordinarily regarded as "'poor candidates for rehabilitation' under the plain error theory." State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Simon, 79 N.J. 191, 206 (1979)). And specifically, in State v. Medina, the Court held that "[a] jury instruction that fails to communicate the State's burden to prove guilt beyond a reasonable doubt is not amenable to harmless-error analysis and requires reversal." 147 N.J. at 50 (citing Sullivan, supra, 508 U.S. at 278-81, 113 S.Ct. at 2081-83, 124 L.Ed. 2d at 189-90).
Here, the trial judge gave the Medina instruction quoted earlier but he preceded and succeeded those unimpeachable instructions with an erroneous description of the jury's function as deciding on defendant's "guilt or innocence." We are not prepared to assume that the jury adhered only to the Medina charge and ignored the erroneous portions of the judge's charge. Because the jury could have interpreted the content of the Medina instructions in the manner in which the judge mistakenly interpreted it for them -- as a decision between guilt or innocence -- we are satisfied that the erroneous portions of the charge were "clearly capable of producing an unjust result." R. 2:10-2.
Accordingly, we reverse the judgment of conviction and remand for a new trial.