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).
The Court addresses the propriety of the State receiving the benefit of a missing witness, or Clawans, charge in this criminal case.
Alonzo Hill was convicted of first-degree robbery and related offenses for his role as an accomplice in the July 3, 2003 robbery of a Newark commercial establishment. According to the State's theory of the evidence, Hill was a knowing participant in the robbery even though he did not get out of the car in which he drove the other participants to Newark, he did not go inside the establishment, he did not touch items that were taken, and he never held the gun that was used during the robbery. According to the State, Hill's knowledge of the planned robbery when he transported the perpetrators to Newark, as well as his assistance in the escape, rendered him an accomplice to the crime committed by those conspirators. The jury heard differently from Hill, who claimed a lack of any prior knowledge about the robbery. He testified that his teenage nephew, N.G., and two companions never said anything in his presence about an intended robbery when Hill drove them to Newark and, further, that he first saw the gun that was used in the robbery when one of the young men was holding it as he ran from the building in which the robbery had taken place, chased by a group of angry men.
Hill did not call his nephew, N.G., as a witness at trial, claiming that he was no longer in touch with N.G. and believed he had moved to Alabama. In the jury's evaluation of the clashing evidence about an element of the crime, Hill's mental state or mens rea, the State received the benefit of a missing witness, or Clawans, charge, which was delivered by the trial court over the defense's objection. In determining whether the juvenile matter against N.G. had been concluded so that N.G. would not have been prejudiced by his appearance at trial, the following information was placed on the record. N.G. had pled guilty as a juvenile on August 5, 2003 and was sentenced to two years probation. The trial court reviewed the transcript of N.G.'s plea colloquy and then placed on the record that it found that N.G. had given testimony that Hill knew about the plan in advance.
The trial court was satisfied that N.G. would not have been prejudiced if he had testified at Hill's trial and found that there were sufficient grounds to support a Clawans charge. The court instructed the jury that it could infer, based on Hills' failure to call N.G. as a witness, that N.G.'s testimony would have been adverse to Hill's interests. At the conclusion of trial, the jury found Hill guilty on all charges. He was sentenced for the first-degree robbery conviction to seventeen years imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act. A concurrent five-year term was imposed for the unlawful possession of a weapon conviction. The court also imposed a five-year period of parole supervision, as well as appropriate fines and penalties.
On appeal, the Appellate Division affirmed Hill's conviction and sentence, finding that any error in giving the Clawans charge was harmless.
The Supreme Court granted certification.
HELD: Providing a Clawans charge in the circumstances of this case constituted reversible error. The charge, which favored the State on an element of its required proofs, had the inescapable effect of undermining Alonzo Hill's entitlement to benefit from the presumption of innocence and to demand that the State bear the burden of proving, beyond a reasonable doubt, all elements of the charges against him.
1. Due process requires that the State prove each element of a charged crime beyond a reasonable doubt. The presumption of innocence and the State's beyond-a-reasonable-doubt proof requirement work in tandem to protect an accused and forces the State to satisfy the proof requirements for a conviction. Under Clawans, for an inference to be drawn from the nonproduction of a witness in either a civil or criminal case, it must appear that the person was within the power of the party to produce and that the witness's testimony would have been superior to that already utilized in respect of the fact to be proved. The inference is not proper if the witness is unavailable or the testimony would be too prejudicial. The party seeking the charge must notify opposing counsel and the court, outside of the presence of the jury, the name of the missing witness and the basis for the belief that the witness has superior knowledge. The trial court's involvement is critical. The court must demonstrate on the record that it has taken into consideration all relevant circumstances in respect of the missing witness inference. The consequences of an improperly provided Clawans charge are severe, especially for a criminal defendant. (Pp. 15-21)
2. Recently, in State v. Velasquez, a panel of the Appellate Division reviewed the perils associated with any use of a missing witness inference against a defendant in a criminal proceeding. The panel concluded that the inference is improper whenever a defendant's decision to forego calling a witness can be explained by the defendant's reliance on the presumption of innocence. The Velasquez decision properly recognizes that the missing witness inference, which our case law allows, must not be used to circumvent the State's burden of proof or to undermine a defendant's presumption of innocence. (Pp. 21-23)
3. The validity of the use of the missing witness charge against a criminal defendant has been subject to legitimate question. Several states have restricted use of this charge as against a criminal defendant while other jurisdictions have devised limits on its use. In New Jersey, the Court has twice reviewed such a charge and found no reversible error. However, in neither of those cases did the Court confront whether a Clawans charge should be given in a criminal trial when the charge would favor the State in a factual dispute over an element of the crime on which the State clearly bears the burden of proof. (Pp. 23-27)
4. Clawans charges should not issue against criminal defendants. The inclusion in a criminal trial of a Clawans charge from the court clearly risks improperly assisting the State in its obligation to prove each element of a charged crime beyond a reasonable doubt. (Pp. 27-28)
5. To be an accomplice, the person must act with the purpose of promoting or facilitating the commission of the offense for which he is charged as an accomplice. He must be shown to have shared the same criminal intent to commit the substantive offense as the principal. Here, the State had the burden of proving beyond a reasonable doubt that Hill had the requisite knowledge and intent in order to be found guilty of armed robbery and related offenses based on its accomplice liability theory. The Clawans charge impermissibly allowed the jury to believe that Hill had a responsibility to call N.G. and that Hill bore some burden to prove that he had an innocent state of mind. The charge had the effect of injecting the court into the factual dispute and could have resulted in the lessening of the State's burden of proof on that element of the crime. Hill should not have been forced into the Catch-22 of either having to call N.G. as a witness or submit to an adverse inference charge. The State must prove its own case and that burden may not be permitted to be lessened through a Clawans charge. It was error for the trial court to charge the jury that Hill's failure to call N.G. as a witness could produce an adverse inference against Hill. That error was not harmless; it was prejudicial to Hill and was clearly capable of producing an unjust result. Thus, Hill's convictions must be reversed. (Pp. 28-33)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED for a new trial.
CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA'S opinion.
The opinion of the court was delivered by: Justice LaVECCHIA
Defendant Alonzo Hill was convicted of first-degree robbery and related offenses for his role as an accomplice in a 2003 robbery of a Newark commercial establishment. According to the State's theory of the evidence, Hill was a knowing participant in the robbery even though he did not get out of the car in which he drove the other participants to Newark, he did not go inside the establishment, he did not touch the items that were taken, and he never held the gun that was used during the robbery. According to the State, Hill's knowledge of the planned robbery when he transported the perpetrators to Newark, as well as his assistance in the escape, rendered him an accomplice to the crimes committed by those conspirators. The jury heard differently from Hill, who claimed a lack of any prior knowledge about the robbery. He testified that his teenage nephew (N.G.) and two companions never said anything in his presence about an intended robbery when he drove them to Newark and, further, that he first saw the gun that was used in the robbery when one of the young men was holding it as he ran from the building in which the robbery had taken place, chased by a group of angry men.
In the jury's evaluation of the clashing evidence about Hill's mental state, the State received the benefit of a missing witness, or Clawans,*fn1 charge, which was delivered by the court over the defense's objection. The court instructed the jury that it could infer, based on Hill's failure to call his nephew as a witness, that the nephew's testimony would have been adverse to Hill's interests. We conclude that providing a Clawans charge in those circumstances constituted reversible error. The charge, which favored the State on an element of its required proofs, had the inescapable effect of undermining defendant's entitlement to benefit from the presumption of innocence and to demand that the State bear the burden of proving, beyond a reasonable doubt, all elements of the charges against him. The prejudicial instructional error requires us to reverse and remand.
At trial, the State presented testimony from Sergio Romaneto, the manager of the kitchen/baking facility*fn2 that was robbed on the morning of July 3, 2003. Romaneto, the owner's nephew, was in a backroom office counting money when a man with a white t-shirt wrapped around his head and face entered the office. A surveillance video in the premises captured the robbery that ensued.
Romaneto, who speaks only Portuguese, did not understand the unarmed man's words but could tell from his pointing and gesturing that he wanted the money. Frightened, Romaneto threw a chair at him. A second man entered the office, armed with a black gun. He also had his face and head partially cloaked by a white t-shirt. The men made Romaneto move into the kitchen area, where other employees were kneeling on the floor. When the robbers were unable to open the safe located in the back office, one of them grabbed a laptop computer and its battery before running out of the building. In the meantime, Romaneto was mounting a defense. Out in the kitchen, he instructed the other employees to fight back because he believed that the robbers were using a toy gun.
Romaneto and the employees ran outside, chasing after the two men, screaming in Portuguese, "It's a robbery, it's a robbery." Romaneto saw the men remove the t-shirts from their heads and get into a dark blue or black car. Inside he saw a different man behind the wheel. At the trial, he identified the driver as Hill. Meanwhile, Romaneto's yelling about "a robbery" caused another car to turn and block the robbers' vehicle from departing. Accordingly, the robbers spilled out of the vehicle and a tussle ensued between them and Romaneto's determined employees. At one point, Romaneto was struck in the shoulder with the butt of the gun. The fighting ended when the armed man pointed the gun at Romaneto and his men. As the employees retreated, one of the men who had been inside the building got into the car and drove off. Of the two remaining, one ran away while the other larger man (identified later as Hill) began to walk away. Romaneto and his employees attempted to encircle Hill in order to detain him, but Hill gestured menacingly at them. Due to his obvious greater size, they let him leave the area. According to Hill's version of the facts, he continued walking until he was picked up by his nephew, N.G.
Romaneto, looking for help, flagged down a police car. He gave the officers a description of the car and its license plate number. The officers who testified for the State added the following evidence.
Canvassing the immediate vicinity, Officer Juan Vazquez of the Newark Police Department spotted a car matching Romaneto's description. As Vazquez approached, he saw N.G. and Hill get out of the car, with Hill emerging from the driver's seat and N.G. from the passenger's seat.*fn3 In the car, Vazquez saw a laptop computer fitting the description of the one that had been reported stolen. Vazquez and his partner arrested defendant and N.G. and brought them to Romaneto, who identified defendant as the driver seated in the waiting car and N.G. as one of the men who had entered the kitchen facility. Meanwhile, another officer responded to a report of a black handgun found in a garbage can two blocks from the kitchen facility. Although the handgun was secured, a fingerprint analysis failed to reveal either N.G.'s or Hill's fingerprints on it.
Hill's defense centered on his lack of knowledge of what N.G. and his companions planned to do at Casa Do Pao once he brought them there. The theme to Hill's defense was to raise reasonable doubt about the mens rea element necessary to support a guilty verdict based on accomplice liability for the robbery. Hill offered no dispute that on July 3, 2003, at approximately eleven o'clock in the morning, he drove his seventeen-year-old nephew and his nephew's friends, Omar and "T," from Brooklyn to the Casa Do Pao central kitchen/bakery facility.*fn4 Hill agreed to drive the three men when Omar offered him fifty dollars in exchange.
When Hill was taken to the police station, after being advised of his Miranda*fn5 rights, he gave a statement explaining Omar's offer to pay fifty dollars for Hill to drive him, T, and N.G. to the kitchen/bakery in Newark. Hill claimed that although he did not see which of the young men went into the building, all three left the car when they arrived. Hill waited in the car. A short while later, Hill saw Omar and N.G. emerge from the building, running toward the car, yelling for Hill to open the door. The car was not running. According to Hill, he walked away. N.G. drove off in the car. He admitted, however, that he later met up with N.G. and, after they had parked the car, the two were arrested by the police.
Hill was indicted for: second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (Count One); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (Count Two); first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Three); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (Count Four); and second-degree possession of a handgun for the unlawful purpose of using it against the person or property of another, N.J.S.A. 2C:39-4(a) (Count Five).
At trial, Hill testified that the men involved in the robbery did not talk about it in his presence beforehand and he claimed to have had no idea that they were going to rob the establishment. According to Hill, on the drive from Brooklyn to Newark they talked only about the directions Hill needed in order to navigate the trip. Hill claimed never to have seen a gun until Omar emerged from the building, running with the gun in his hand.*fn6 When asked about his relationship with N.G., defendant stated that the two had been living together at the time the robbery took place, but that the last time he had seen his nephew was two months prior to the trial. He testified that he had not discussed the case with N.G., but was "pretty sure" that N.G. ...