On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-07-2685.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Remanded by Supreme Court July 14, 2009.
Resubmitted October 27, 2009
Before Judges Wefing and Grall.
"Tried to a jury, defendant was convicted of first-degree aggravated manslaughter as a lesser-included offense of murder, N.J.S.A. 2C:11-4(a), and of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was found not guilty of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)." State v. Jackson, No. A-6317-06 (App. Div. May 19, 2009) (slip op. at 1-2). We affirmed defendant's convictions. Id. at 6.
This appeal is before us on remand from the Supreme Court. State v. Jackson, 200 N.J. 205 (2009). Among the claims of error addressed in our prior opinion was an objection to the delivery of a "Clawans charge" - a jury instruction permitting a negative inference upon a finding that the defendant failed to present available witnesses whose testimony would be reasonably expected to support his or her version of the facts, State v. Clawans, 38 N.J. 162, 170-72 (1962). Jackson, supra, slip op. at 4-5. The Supreme Court granted defendant's petition for certification and summarily remanded for our "reconsideration in light of State v. Alonzo Hill, 199 N.J. 545 (2009)." Jackson, supra, 200 N.J. at 205. Defendant and the State have submitted supplemental briefs addressing the significance of Hill.
In Hill, the Court announced a new rule generally disapproving the use of Clawans instructions against defendants in criminal cases. 199 N.J. at 565-67 & 566 n.8 (indicating that the Court had not addressed the issue previously but recognizing that this court had previously held that "use of a Clawans charge against a defendant in a criminal trial" was not error in a case involving an alibi defense and citing State v. Gonzalez, 318 N.J. Super. 527, 529 (App. Div.), certif. denied, 161 N.J. 148 (1999), a case in which this court rejected the argument without discussion and reversed on other grounds). The Court held:
Clawans charges generally should not issue against criminal defendants. The inclusion in a criminal trial of a Clawans charge from the court risks improperly assisting the State in its obligation to prove each and every element of a charged crime beyond a reasonable doubt. It is difficult to foresee a situation where a Clawans charge might play a proper role in a case against a criminal defendant. Indeed, any reference to a negative inference against a criminal defendant must be carefully scrutinized to ensure that the comment does not mislead or have the capacity to confuse the jury into believing that a defendant had an obligation to produce the witness and the substantive evidence that the witness would have provided. [199 N.J. at 566.]
Although the Court did not entirely foreclose use of a Clawans charge against defendants in criminal cases, the Court noted "that it would be the rare case, if any, that would warrant a Clawans charge from the court." Id. at 566-67.*fn1
With respect to defendant's claim that it was error to deliver a Clawans charge, this case cannot be distinguished from Hill. The defendant in Hill was charged as an accomplice to armed robbery. 199 N.J. at 553. The State's theory in Hill was that the defendant, who drove the perpetrators to the scene but remained in the car, was a knowing participant acting with the requisite purpose. Id. at 550. But Hill testified that: he had no "prior knowledge about the robbery"; the perpetrators, "his teenage nephew" and his nephew's two confederates, had "never said anything" about what they intended to do when they reached their destination; and he did not see that they had a gun until they left the building after the robbery. Ibid. The Clawans instruction was given because Hill did not call his nephew to testify at trial and confirm Hill's lack of foreknowledge of the perpetrators' plan.
On those facts, the Court observed that the trial "centered on a factual dispute between the State and Hill over an element of the crime, namely whether the State could prove that Hill had the requisite mens rea to be convicted of robbery." Id. at 567. And, the Court concluded that the error was harmful because "[t]he Clawans charge impermissibly allowed the jury to believe that defendant had a responsibility to call [his nephew] and that Hill bore some burden to prove that he had an innocent state of mind," which could have "lessen[ed] . . . the ...