On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal presents three questions for disposition: first, whether, in those instances in which lesser-included offenses are already charged in the indictment, a trial court nevertheless must instruct the jury that accomplices may have a different state of mind than principals and, thus, may be liable only for the lesser-included offense; second, whether the prosecutor misstated the applicability of the statutory affirmative defense to felony murder; and, finally, whether, when a defendant voluntarily absents himself from trial, it is error for the trial court to instruct the jury that the defendant's absence, standing alone, may be considered evidence of consciousness of guilt.
On February 15, 2000, defendant, Shariff Ingram drove two of his co-defendants, Lynn Anthony Smith and Christopher Moore, to the Woodbridge Mall. Salaam Brown separately drove in his own car, carrying two women passengers. After visiting the mall, Brown stated that he needed to go to the apartments located across the street to pick up some money. Both cars drove to the apartment complex, and all occupants entered the apartment building.
When the four men got to the apartment, they had covered their faces and Brown and Moore were openly carrying firearms. Three men were present in the apartment - Corey Maddox, Appolon Noel, and Jihad North. They were ordered to lie on the living room floor and were bound with wire. A safe was located, and Brown and Smith took the safe out of the apartment and placed it in the trunk of Brown's car. Ingram, who had left the apartment by the time Brown and Smith walked out with the safe, was sitting in his car. Brown returned to the apartment, where Moore had remained. Shortly thereafter, Noel heard a gunshot and a sound he later described as Maddox's gasps. Brown and Moore returned to the cars. Brown left in his car with the two women. Ingram, Moore and Smith left in Ingram's car. Noel was able to untie himself, and, once free, he saw Maddox lying on the floor with a gunshot wound to his head. Someone called for emergency assistance and police responded. Maddox was taken to the hospital and died the next day. Later that day, Brown gave Smith eight hundred dollars, Ingram four or five hundred dollars, and Harris one thousand dollars. When Smith learned that someone was killed during the robbery, he confronted Brown and Moore, and they both confirmed that "we did it."
In time, police investigators focused on Ingram. On April 20, 2000, Ingram provided an oral statement. He claimed Brown had asked him for assistance in "picking up some money in Woodbridge." Ingram also claimed that he never entered the apartment because when he looked into the apartment he saw people with rags covering their faces. Ingram acknowledged that Brown paid him four or five hundred dollars which he assumed was for the favor of going with him to Woodbridge. Ingram asserted that he did not know about the death of Maddox until the day of his interview by the prosecutor's office.
Ingram, Moore and Smith were charged with conspiracy, robbery, and first-degree felony murder, among other crimes. Brown was murdered within two weeks of Maddox's murder.
On October 21, 2002, the trial court held a status conference in the case prior to jury selection, which was scheduled for two days later. Ingram was present at the conference and was informed by the trial court that Smith had pled guilty and would testify at the upcoming trial. Ingram failed to appear for jury selection on October 23, and counsel was ordered to try to locate him. Ingram was not located and the trial was conducted in his absence. Because Ingram was not present, the trial court initially instructed the jury that it was not to consider his absence as probative of any fact or issue. Later, however, the trial court determined that a flight charge was appropriate because it was "satisfied that if one voluntarily walks away from a trial[,] it is fair and proper for a jury to be instructed that they may draw an inference of consciousness of guilt."
The State made reference to Ingram's absence in its summation, stating that as a result of this absence, the jury could "infer a consciousness of guilt." It also described Ingram as "a man on the run" who was "fleeing from this prosecution because he is afraid of your verdict." The trial court charged the jury that: "If you find that the defendant, fearing that he would be convicted of the charges contained in the indictment, purposely failed to appear at this trial, then you may consider whether this failure to appear together with all the other evidence in this case is an indication or any proof of his consciousness of guilt."
After two days of deliberations, the jury returned guilty verdicts against Ingram on all counts. Moore was acquitted of all charges. Ingram was arrested in Pennsylvania approximately one week later, and was sentenced to thirty years imprisonment without the possibility of parole.
Ingram appealed, and in an unpublished decision, the Appellate Division vacated the convictions and sentence and remanded the cause for a new trial. Focusing largely on the claim that the jury had been improperly instructed concerning the lesser-included offense culpability by accomplices, the panel concluded that 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). The Appellate Division did not reach the other issues presented on appeal.
The Supreme Court granted the State's petition for certification and Ingram's cross-petition for certification. 192 N.J. 598 (2007).
HELD: When a defendant is charged as an accomplice and lesser-included offenses already are charged in an indictment, the trial court comprehensively must charge the jury on the elements both of the lesser-included crimes and of accomplice liability. Nevertheless, the failure to so separately charge the jury here did not constitute reversible error. The prosecutor did not misstate the applicability of the statutory affirmative defense to felony murder. In these circumstances, it was error for the trial court to instruct the jury that the defendant's voluntary absence from the trial could be construed by the jury as evidence of consciousness of guilt, and that error mandates a new trial.
1. The State argues in its petition for certification that the Appellate Division erred in determining that the trial court should have charged the jury in accordance with the mandate of Bielkiewicz. That case holds that when a prosecution is based on the theory that a defendant acted as an accomplice and the accomplice is charged with a different degree offense than the principal or lesser-included offenses are submitted to the jury, the court has an obligation to carefully impart to the jury the distinctions between the specific intent required for each offense. In these circumstances, where the indictment substantively charged Ingram with both the greater-included offense of robbery and the lesser-included offense of theft, and the trial court properly instructed the jury in respect of each, the evil Bielkiewicz seeks to guard against -- that is, that the jury could have found that one or more of the defendants were guilty of robbery while also finding that one or more were guilty only of the lesser-included offense of theft --does not pose the same risk. The Court therefore concludes that it was not reversible error when the trial court instructed the jury on the elements of the offenses of robbery and theft, together with the elements required for accomplice liability, without also specifically including the language from the Model Jury Charge on accomplice liability where the jury is instructed as to lesser-included offenses. (pp. 16-20)
2. Ingram claims that, as a matter of plain error, the State misrepresented the legal defense to felony murder and the trial court erred in failing to correct the prosecutor's misstatements. N.J.S.A. 2C:11-3(a)(3) provides that in any prosecution for felony murder in which the defendant was not the only participant in the crime, it is an affirmative defense that the defendant (a) did not commit the homicidal act or in any way solicit or aid the act; (b) was not armed with a deadly weapon; (c) had no reasonable ground to believe any other participant was armed with a weapon; and (d) had no reasonable ground to believe that any other participant intended conduct likely to result in death or serious physical injury. The Court's review of the State's summation in respect of the statutorily authorized affirmative defense to felony murder compels the rejection of defendant's challenge. Taken as a whole, the State's summation fairly stated the elements of the statutory affirmative defense to a felony murder charge. (pp. 20-24)
3. Ingram's final contention is that the trial court erred in instructing the jury that it could consider Ingram's voluntary absence from trial as evidence of flight, that is, evidence of consciousness of guilt. It is clear that flight of an accused is admissible evidence of consciousness of guilt. To trigger a flight charge, however, there must be circumstances present and unexplained which reasonably justify an inference that the departure was done with a consciousness of guilt and pursuant to an effort to avoid detection, arrest, or the imposition of punishment. A flight charge should not lie when a defendant absents himself from trial unless separate proofs are tendered to sustain the claim that the absence was designed to avoid detection, arrest, or punishment. Many different motives may lie behind a defendant's voluntary absence from trial, not all of them congruent with a consciousness of guilt. Thus, because in many instances its probative value will be substantially outweighed by its devastatingly prejudicial effect, in the main a defendant's voluntary but unexplained absence from trial, without more, should not give rise to a jury charge that his absence constitutes evidence of consciousness of guilt. The Court therefore concludes that the trial court erred in determining that Ingram's voluntary absence from trial, without more, was sufficient to justify instructing the jury that it could consider that absence as demonstrating consciousness of guilt. And, the Court cannot conclude that the error was harmless beyond a reasonable doubt. The State presented substantial proofs that Ingram's co-defendant, Moore, who appeared at trial, had carried a weapon into the apartment and was in the apartment when Maddox was shot. Nonetheless, the jury acquitted Moore of all charges, while it convicted Ingram. On the whole, the improper instruction and the equally improper argument it fostered were clearly capable of producing an unjust result. (pp. 24-33)
The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part, and the cause is REMANDED to the Law Division for a new trial.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and HOENS join in JUSTICE RIVERASOTO's opinion. CHIEF JUSTICE RABNER did not participate.
The opinion of the court was delivered by: Justice Rivera-soto
This appeal presents three questions for disposition. First, we address whether, in those instances in which lesser-included offenses are already charged in the indictment, a trial court nevertheless must instruct the jury that accomplices may have a different state of mind than principals and, thus, may be liable only for the lesser-included offenses. Second, we determine whether the prosecutor misstated the applicability of the statutory affirmative defense to felony murder. Finally, we consider whether, when a defendant voluntarily absents himself from trial, it is error for the trial court to instruct the jury that the defendant's absence, standing alone, may be considered evidence of consciousness of guilt.
We conclude that, when a defendant is charged as an accomplice and lesser-included offenses already are charged in an indictment, the trial court comprehensively must charge the jury on the elements both of the lesser-included crimes and of accomplice liability. We emphasize that a trial court nevertheless separately should charge the jury that when a principal and an accomplice are charged with the same crime, they may possess differing mental states and, hence, different levels of culpability. Nevertheless, in the circumstances presented here, we find no reversible error in the failure to so separately charge the jury. We further conclude that, in the circumstances presented, the prosecutor did not misstate the applicability of the statutory affirmative defense to felony murder. Finally, we conclude that, in these circumstances, it was error for the trial court to instruct the jury that the defendant's voluntary absence from the trial could be construed by the jury as evidence of consciousness of guilt, and that such error mandates a new trial.
Because the challenges in this appeal are limited to the propriety of the State's summation or the legal sufficiency of the jury charge, the specific facts giving rise to this appeal, in large measure, do not inform the issues presented. However, for context, we note the following abbreviated version of the facts, followed by a more robust presentation of the portions of the State's summation and the trial court's jury charge at issue.
On February 15, 2000, defendant Shariff Ingram drove two of his co-defendants, Lynn Anthony Smith and Christopher Moore, to the Woodbridge Mall; Salaam Brown separately drove his own car, carrying two women passengers, Fatima Harris and co-defendant Jasminé Hampton. Once there, Smith, Moore and defendant entered the mall. When they returned to their car, Brown stated that he needed to go to the apartments located across the street to pick up some money. Both cars drove to the apartment complex, and all of the occupants exited their cars and entered the apartment building en route to the apartment of Sean Taylor, a known drug dealer. They traveled in two groups: the women, Harris and Hampton, entered the apartment building in the company of Corey Maddox, a returning occupant of the apartment, while the four men -- Brown, Moore, Smith and defendant -- later gained access to the building by following on the heels of someone else who rightfully had access.
By the time the four men arrived at Taylor's apartment, they had covered their faces, and Brown and Moore openly were carrying firearms. Present in the living room of Taylor's apartment was Maddox, along with Harris and Hampton; Appolon Noel, a sound engineer who worked with Taylor, was in one of the bedrooms looking for a music recording and Jihad North also was in a bedroom.*fn1 At gunpoint, Moore and Smith ordered Maddox to lie down on the floor. Either Moore or Smith found Noel in a bedroom, ordered him to join Maddox on the living room, and bound him with speaker wire. Moore and Smith then asked where the money was; Maddox claimed there was no money on the premises. Moore and Smith went into another bedroom, found North, and ordered him to lie face down on the bed. While in that bedroom, Moore opened a closet, discovered a safe and carried it back into the living room. Brown and Smith then took the safe out of the apartment and placed it in the trunk of Brown's car. Defendant, who had left the apartment by the time Brown and Smith walked out carrying the safe, was sitting in his car; Harris and Hampton were standing next to Brown's car. Smith joined defendant in his car. Throughout, Noel, with his eyes tightly shut, lay face down on the living room floor, near Maddox.
Brown returned to the apartment, where Moore had remained. Shortly after Brown returned to the apartment, Noel heard a gunshot, followed first by quiet, then by a rush of air, and finally a sound he later described as Maddox's gasps. Brown returned to his car. He, Harris and Hampton left in Brown's car, while defendant, Moore and Smith left in defendant's car. In time, Noel was able to untie himself and, once free, he saw Maddox lying on the floor with a gunshot wound to his head. He telephoned Taylor, explained what had occurred, and wrapped a towel around Maddox's head. Someone other than Noel called for emergency assistance and the police, and later an ambulance, responded. Maddox was taken to the hospital, but died the next day.
Later that day, Brown gave Smith eight hundred dollars, defendant some four or five hundred dollars, Hampton seven hundred dollars, and Harris one thousand dollars. A few days later, Brown also gave Smith a leather jacket with five hundred dollars in one of the inside pockets. When Smith learned that someone was killed during the robbery, he confronted Brown and Moore. Brown responded, "yeah, we did it. I have nothing to lose. I got to pay for these lawyers. I'm not going back to jail -- you know." Moore too stated that "nothing we could do about it now, we did what we do so f**k it, you know what I mean."
In time, police investigators focused, among others, on defendant. On April 20, 2000, defendant provided an oral statement to the investigators. As summarized by the Appellate Division, he stated 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[ and he claimed] 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 ...