August 1, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN THOMAS-EL, A/K/A JON EL, A/K/A JOHN THOMAS, A/K/A JON THOMAS, A/K/A JON THOMASEL, A/K/A JON TILMON, A/K/A THOMAS J. EL, A/K/A JOHN S. THOMAS EL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 08-07-0159 and 08-07-0160.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Parrillo, Grall and Skillman.
Defendant was indicted for attempted murder, in violation of N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-1; second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2); possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10.1; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a(1); and resisting arrest, in violation of N.J.S.A. 2C:29-2a(3). Defendant was also charged in a second indictment with second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b).
The trial court dismissed the charge of possession of CDS during trial, and a jury found defendant guilty of the other charges contained in the first indictment. In a separate trial immediately following the first trial, the same jury also found defendant guilty of certain persons not to have weapons.
The trial court granted the State's motion to sentence defendant to an extended term as a persistent offender and sentenced him to a fifty-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, for attempted murder. The court merged defendant's conviction for aggravated assault into his conviction for attempted murder. The court sentenced defendant to a concurrent ten-year term for possession of a weapon for an unlawful purpose and a concurrent five-year term for resisting arrest. The court also sentenced defendant to a consecutive ten-year term of imprisonment, with five years of parole ineligibility, for certain persons not to have weapons. Thus, defendant's aggregate sentence is sixty years imprisonment, with forty-seven-and-a-half years of parole ineligibility.
Defendant's convictions were based on a shooting incident involving the State Police that occurred around 10 p.m. on July 24, 2007 in Camden. State Police Detective-Sergeants Mark Cunard and William Stolinski and Detective Joseph Loschiavo responded to a report of fighting involving thirty to forty people and gun shots fired near an intersection in the middle of Camden. When they heard the report, the troopers were riding in an unmarked, white Ford Excursion SUV and were each wearing black pants, blue collared golf shirts with a small State Police triangle stating "New Jersey State Police" on the front and larger letters stating "State Police" on the back, bullet-proof vests, and small silver police shields.
Upon arriving at the intersection, the officers observed a large crowd. After getting out of their car, Cunard observed a man in a red shirt standing by himself in the intersection pull a gun from his front waistband and fire three shots into the air above the crowd. Stolinski heard the shots and looked toward the intersection, where he saw the man lowering his right arm. Cunard and Stolinski subsequently identified the person who had fired the shots as defendant. After the shots, the crowd dispersed in every direction. The person identified as defendant returned the gun to his waistband and began walking toward a parked gray car. Cunard told the other troopers, "[t]he guy in the red shirt just fired a gun at the crowd," and drove in his direction.
After reaching defendant, Cunard parked the police car and the three troopers exited with their guns drawn. Cunard yelled twice to defendant, "State Police, let me see your hands!" Stolinski and Loschiavo shouted similar commands. When defendant reached the gray car, he attempted to unlock and open the door with this right hand, keeping his left hand on his waistband. Cunard again instructed him to stop and show his hands. Defendant turned slightly to the left, looked at Cunard, and then ran away. The troopers chased after defendant, shouting, "State Police, get down!"
According to the troopers, during the pursuit, defendant pulled a handgun from his waistband, turned toward the troopers, and fired one shot. In response to the gun shot and sight of the muzzle flash, Stolinski fell to the ground, initially believing he had been shot. Cunard fired three rapid shots at defendant with his 9 millimeter handgun. Defendant was struck in the shoulder and immediately fell face-down on the ground near a chain-link fence. The troopers secured defendant with handcuffs and allegedly located a handgun, a .25 caliber Beretta, approximately four to five feet from where he fell.
The State Police Crime Scene Unit recovered six spent shell casings, three 9 millimeter casings that came from bullets discharged from Cunard's gun when he shot at defendant and three .25 caliber casings that came from bullets discharged from the handgun allegedly found near defendant after he was shot. The .25 caliber casings were all found in the area where the person identified as defendant fired three shots into the air above the crowd. No .25 caliber casing was found in the area where the troopers claimed defendant had shot at them.
Testifying in his own defense, defendant denied that he possessed a handgun on the evening he was shot by the State Police. Defendant claimed that he came to the scene to assist in breaking up a fight in which children of one of his friends had become involved. While he was trying to break up the fight, shots were fired over his shoulder, and he ran to his car to take cover. Defendant's cell phone began vibrating, so he took it out of his back pocket with his left hand as he inserted his keys into the car door with his right hand. He heard tires screeching and lights coming toward him and instinctively began to run. When defendant realized that troopers were following and calling out to him, he stopped and put his hands up, with the cell phone still in his hand. According to defendant, he said to the troopers, "This is not a gun, it's my cell phone." He was then shot and fell to the ground.
Anita Parker, a friend of the defendant who accompanied him to the area of the shooting, corroborated defendant's testimony that he was not in possession of a handgun that evening. She testified that defendant became involved in a verbal altercation with a drug dealer named Wayne after they arrived on the scene. She said Wayne ran into the bushes and re-emerged with a handgun in his hands. She saw Wayne discharge one shot into the air from the handgun and then heard a second shot sometime later. Parker did not claim to have observed defendant being shot.
On appeal, defendant presents the following arguments:
POINT ONE: THE TRIAL COURT'S ERRONEOUS JURY CHARGES DEPRIVED [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL (Partially Raised Below).
1. Coercive Further Jury Deliberations Charge (Raised Below).
2. Flight Charge Erroneous, Misleading, and Unsupported by Evidence (Not Raised Below).
3. Attempted Murder Charge Erroneous, Misleading and Unsupported by Evidence (Not Raised Below).
4. Possession of Weapon for Unlawful Purpose Charge Erroneous and Misleading (Not Raised Below).
5. Resisting Arrest Charge Erroneous (Not Raised Below).
6. Certain Persons Charge Directed a Verdict (Not Raised Below).
7. Certain Persons Charge Expanded Indictment (Not Raised Below).
POINT TWO: THE COURT PREVENTED [DEFENDANT] FROM PRESENTING A DEFENSE, DENYING HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
POINT THREE: THE COURT PREVENTED [DEFENDANT] FROM EFFECTIVELY CROSS-EXAMINING A STATE WITNESS BY ALLOWING THE STATE TO PRESENT EXPERT TESTIMONY WITHOUT PROPER NOTICE UNDER RULE 3:13-3.
POINT FOUR: THE STATE PREJUDICIALLY GARNERED SYMPATHY FOR THE VICTIMS TO SECURE A CONVICTION. POINT FIVE: THE COURT DEPRIVED [DEFENDANT] OF HIS RIGHT TO A TRIAL BY JURY BY ALLOWING THE STATE TO ELICIT FROM ITS WITNESS THAT [DEFENDANT] QUALIFIED AS A CERTAIN PERSON.
POINT SIX: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
We conclude for the reasons set forth in section I of this opinion that the trial court's supplemental instruction after the jury announced that it was deadlocked violated the principles set forth in State v. Czachor, 82 N.J. 392 (1980), and coerced a verdict, which requires a reversal of defendant's convictions in his first trial. However, this coerced verdict in the first trial does not require a reversal of defendant's conviction in the second trial of certain persons not to have weapons. We also conclude that the trial court committed various other errors in the conduct of the first trial, which are discussed in sections II through VIII of this opinion. Some of those errors may have required a reversal of some or all of defendant's convictions as a result of the first trial even if the trial court had not coerced a verdict. However, we have no need to decide whether those errors, considered independently or cumulatively, were sufficiently prejudicial to require a new trial because the coerced verdict requires a new trial without regard for those other errors. We note those errors solely for the guidance of the trial court at the retrial of this case.
We first consider defendant's argument that after the jury announced it was deadlocked, the trial court gave a supplemental instruction that coerced the jury into arriving at a verdict.
After a day of deliberations, the jury informed the court that it could not agree on count one, which was the attempted murder charge, and asked if it could proceed to count two. The parties agreed that the jury had not deliberated long enough to be considered deadlocked and that a supplemental "further deliberations" charge was inappropriate at that time. Instead, the trial court instructed the jury that each count was separate and that a verdict need not be reached on count one to consider the other counts, but that it should discuss count one further.
The following day, the jury sent a second note to the court, stating: "We are still deadlocked on one count and there seems to be no compromise. What do we do next? We agree on four counts." The State asked the court to instruct the jury to continue deliberating, and defense counsel stated that it was "up to the Court's deference." [sic]. The trial court then decided to give the jury a supplemental instruction regarding further deliberations.
Such a supplemental instruction is governed by our Supreme Court's decision in Czachor, supra, 82 N.J. at 394, which held that "the so-called Allen charge [Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528], as commonly applied and as presently formulated, does have unacceptable coercive effects upon jury deliberations and its use can no longer be sanctioned in criminal trials in this State." The Court indicated that the Allen charge it disapproved in Czachor "emphasized to the deadlocked jury that each juror 'should examine the question . . . with a proper regard and deference to the opinions of each other . . . [and] that they should listen, with a disposition to be convinced, to each other's arguments.' It further importuned the jury that 'if much the larger number were for conviction [or for acquittal], a dissenting juror should consider whether his doubt was a reasonable one . . . [and] whether [the juror] might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.'" Id. at 395-96 (citation omitted). In concluding that such an instruction has unacceptable coercive effects upon jury deliberations, the Court stated:
It is fair to say that the typical Allen charge does not simply remind jurors of their duty to cooperate in collective deliberations. It has a rather different thrust. The charge is intended to undo a jury deadlock. It tends therefore to focus upon possibly the weakest links in the chain locking the jury in disagreement, namely, the minority holdouts on the jury. Hence, the charge usually admonishes specifically and pointedly only those in the minority to reconsider their beliefs in light of the adverse position held by the majority. It also exerts pressures upon jurors by casting indirectly upon them a personal responsibility and sense of guilt for the impasse. It does so through various references to such matters as the expense and waste of a mistrial, the need for a retrial, and the cost and inconvenience of a new trial. The charge further intimates that the dissenting jurors may not be acting properly or conscientiously since another similar jury will be called upon in a new trial to perform the identical task and presumably will achieve it, i.e., reach a unanimous verdict on the same evidence. Moreover, dissenting jurors are usually asked to consider these extraneous factors at a time when they are most vulnerable to judicial suasion to compose differences. [Id. at 398-99.]
The Court also observed that such an instruction "undermines the requirement that a verdict in a criminal case reflect unanimity of agreement freely arrived at by each juror." Id. at 399; see also State v. Figueroa, 190 N.J. 219, 231-39 (2007); State v. Adim, 410 N.J. Super. 410, 424-30 (App. Div. 2009).
The Court further concluded that "errors which impact substantially and directly on fundamental procedural safeguards, and particularly upon the sensitive process of jury deliberations, are not amenable to harmless error rehabilitation. . . . A defendant confronted with this kind of trial error need not demonstrate actual prejudice in order to reacquire his right to a fair trial." Czachor, supra, 82 N.J. at 404; accord State v. Mejia, 141 N.J. 475, 488 (1995); State v. Ramseur, 106 N.J. 123, 312 (1987).
After Czachor, the Court approved a model charge regarding further deliberations after a jury reports that it is deadlocked, which now reads:
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment.
Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
You are not partisans. You are judges --judges of the facts. [Model Jury Charge (Criminal), Further Jury Deliberations (5/23/94).]
However, when the jury became deadlocked, the trial court did not give the model charge. Instead, the court gave the following supplemental instruction:
What we do next is continue to search for decision-making or agreement.
I'm going to ask you to consider your deliberations. If you think about it, it's a long, long trial. Even though it feels like you've been deliberating for a long time, in the context of what's at stake, I think you need to give it a little more time talking out why you can or cannot arrive at a decision on one of the charges, and I'm not going to ask you which charge at this --at this time.
The matter -- each of the charges in this case stands on its own. They can all be -- you can be found guilty on all of them, you can be found not guilty on all of them, you can be found guilty or not guilty on some of them or all of them.
The trial's taken a lot of time. If you should fail to agree upon a verdict on one of the counts, the case will be left open and may have to be tried again. Obviously another trial would only serve to increase the cost, the effort on both sides, and there's no reason to believe that if the case is tried again either side would do any better or more exhaustively in their trial as it has been before you.
You're the jury. You have the responsibility to make the decision. Any future jury, if it is selected, would be selected in the same manner from the same source of people and there's no reason to believe that the case could ever be submitted to 12 men and women more impartial, more conscientious, more competent or that more clear evidence could be provided. You're the ones.
If a substantial majority of your number [is] in favor of one side or the other, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression on someone else.
If, on the other hand, if a majority of you or a lesser number are in favor of a decision in the other direction, the rest of you should ask yourselves again and most thoughtfully whether you should accept the weight and sufficiency of the evidence which fails to convince your fellow jurors.
So, that is whether you [are] individually on the side of conviction or acquittal as to whichever count this is, you have to look carefully again at the evidence. However, remember at all times no juror is expected to give up their honest belief that he or she may have as to the weight of the evidence, but after full deliberation and consideration of the evidence in the case it is your duty to agree upon a verdict if you can do so.
You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt, the defendant should have your unanimous verdict of not guilty.
You may be leisurely in your deliberations as the occasion may require. Take all the time you feel is necessary.
I believe one or two times I've said justice rushed is justice refused. The expression is generally justice delayed is justice denied, but I think rushed is also refused.
You've gotten almost to the point. If you have an agreement on four of the counts, then focus your energy and focus your attention on the additional count and do your very best. [Emphasis added.]
After the trial court gave this supplemental instruction, defense counsel moved for a mistrial. The court denied the motion, stating that its supplemental instruction included "language out of the federal charge."
The court's supplemental instructions had the capacity for all the negative consequences of a coercive instruction to a deadlocked jury the Court condemned in Czachor. It emphasized the "cost" and "effort" that would be involved in a retrial; it "admonishe[d] specifically and pointedly only those in the minority to reconsider their beliefs in light of the adverse position held by the majority" by telling the jury that"[i]f a substantial majority of your number [is] in favor of one side or the other, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression on someone else[;]" and it "intimate[d] that the dissenting jurors may not be acting properly or conscientiously since another similar jury will be called upon in a new trial to perform the identical task and presumably will achieve it," by telling the jury, "You're the jury. You have the responsibility to make the decision[.]" This supplemental instruction also implied, contrary to the principles set forth in Czachor, that the only acceptable form of verdict was a unanimous verdict. Moreover, the court failed to "remind the jurors not [to] surrender your honest conviction as to the weight or effect on the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict." Figueroa, supra, 190 N.J. at 240 (quotation omitted).
Therefore, defendant's convictions must be reversed. Although the jury deadlock appears to have been related to the attempted murder charge, we cannot simply assume, without the return of a partial verdict, that the jury would have found defendant guilty of the other charges even if this erroneous instruction had not been given. However, we perceive no basis for concluding that the coerced verdict in defendant's first trial tainted the jury verdict in the second trial, which was based on completely separate deliberations. Moreover, defendant's other arguments regarding the conduct of that second trial and the instructions the court gave the jury in that trial are clearly without merit. R. 2:11-3(e)(2). Therefore, we reverse the judgment of conviction memorializing the jury verdict in the first trial and remand for a new trial, but affirm the judgment of conviction memorializing the verdict in the second trial.
During defendant's direct examination, defense counsel asked him to roll up his sleeve to show the jury his wound from the bullet shot by Detective Cunard. The State objected. The trial court sustained the objection, ruling that no probative value could be gained by looking at the scar and that "the prejudicial and sympathy value of whatever it is he's going to do while showing his bare flesh to the jury outweighs any probative value." However, the court permitted defendant to show the jury with his finger exactly where the bullet entered his arm. Although the record does not reveal precisely where defendant pointed with his finger, defendant stated on cross-examination that he had pointed to the side of his arm and the prosecutor indicated in summation that he had pointed to the back of his arm.
The location of the scar was significant because the troopers testified that Cunard shot defendant when he turned around and shot at them, but defendant testified that he did not have a gun and was shot before he turned to face the troopers. The location of the scar on the back of defendant's arm, if that actually was its location, would tend to support defendant's version of the shooting. Indeed, the prosecutor recognized the significance of this evidence when he argued in summation that defendant's act of pointing to the back of his arm as the location of the scar was not credible:
At one point during the testimony he got up and was trying to show you that he got shot in the back of the arm. That wasn't how it happened. That wasn't how Steve Engel, the EMT told you it happened. He was shot in the upper, front, not the back, front biceps area. This is the biceps here, the one that goes like this, the muscle.
Upper, right biceps he got shot, consistent with Cunard's testimony .
. . . The location of his injury is also objective evidence that confirms what Mark Cunard, Joe Loschiavo and Bill Stolinski said. He got shot in the right, front biceps.
Therefore, the precise location of the scar had substantial probative value, and the scar itself was obviously the best evidence of that location. Moreover, we fail to perceive any prejudice to the State from allowing the jury to view a small scar from a bullet wound on defendant's arm. Therefore, defendant should be allowed to show that scar to the jury at the retrial.
The trial court erred in allowing the prosecutor to make inflammatory appeals to the jury to evoke sympathy for the trooper victims of the alleged attempted murder and refusing to give the jury appropriate curative instructions upon defendant's request. Both the prosecutor's opening and closing were replete with improper, inflammatory rhetoric.
The prosecutor began his opening statement by telling the jury that this case was about police officers who almost lost their lives in the line of duty:
When you signup to become a police officer, you accept the fact that you put your life on the line every day you go to work. Each day you go to work could be your last day. You go to work, you kiss your spouse good-bye, you say good-bye to your kids and pretty much go about your day as you would any other person. You keep that in the back of your mind that that threat is always there, that threat of losing your life on the job in the line of duty.
Now, most times, and generally speaking, most police officers never in their career draw their weapon, let alone fire their weapon at somebody else. It's the rare police officer that has to be involved in a situation where he has to take out his weapon and fire it.
But on July 24th of 2007, the defendant . . . snapped three State Troopers back into that harsh reality that sits in the back of their minds, that threat that they might be killed one day on the job by a defendant with a gun. That's what happened on July 24, 2007.
These inflammatory comments to garner sympathy for the troopers were an improper opening, which is supposed to be limited to an outline of what the State expects to be able to prove at the trial. See State v. Ernst, 32 N.J. 567, 577 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961). The trial court's response to defense counsel's objection to this opening -- that the prosecutor is "entitled to frame the language of his opening any way he wishes" -- reflects a basic misconception of the nature of an opening and of the court's responsibility to curb any prosecutorial impropriety.
The prosecutor continued his efforts to elicit sympathy for the troopers by asking them about their emotional reactions to the shooting incident and how traumatized they were by being shot at. The trial court erred in rejecting defense counsel's objections to such questions on the ground that the victims' states of mind were "relevant and material."
The prosecutor's summation was also dominated by inflammatory appeals to the jury to sympathize with the troopers, including:
Ladies and gentlemen of the jury, Mark Cunard, Bill Stolinski and Joe Loschiavo are lucky to be alive today. They went through a cop's worst nightmare and survived. They faced an armed gunman in the street in Camden.
Consider for a moment the situation that these three victims were in, because that's what they are. They are police officers, no doubt, but in this circumstance they were victims. They're people just like you and me, people who were shot at by the defendant. Consider what they went through for a moment.
Consider the sick and sinking feeling they must have had in their stomach[s] when that shot was fired. That's their worst nightmare come true right there in that moment. All their fears are realized at that moment, the fear that they may not live to see their family again, the fear that they may not see their children or their wives.
As I said before, you've all seen this gun before. . . . But you haven't seen it the way Mark Cunard, Joe Loschiavo and Bill Stolinski saw it, pointed at them with a muzzle flare coming out at the top of this gun.
[Defense counsel] says it's dramatic. It is dramatic. You're right. So dramatic that they'll never forget that for the rest of their lives. That's about as dramatic as it gets. It doesn't get more dramatic than "I almost died." Think of a scenario more dramatic than that. I challenge you. You won't be able to do it.
At the retrial of this case, the trial court should assure that the State's case is presented without such inflammatory appeals for jury sympathy for the troopers and is instead focused upon the evidence relevant to the charges against defendant.
The trial court gave the jury a standard flight instruction, including with specific reference to this case:
There has been some testimony in this case from which you may infer the defendant fled shortly after the alleged commission of the crime. The defense has suggested the explanation that the defendant fled because he heard shots fired from behind him and then moved to the car -- went to the car and put the keys in the door to move the car.
There was also testimony that when screeching wheels pulled up on him with bright lights, the defendant, having heard gunshots, had, as his first idea, to get out of there and to flee . . . from a dangerous situation.
If you find the defendant's explanation credible, you should not draw any inference of the defendant's consciousness of guilt from his departure.
If, after a consideration of all of the evidence, you find that the defendant, fearing that an accusation or arrest would be made against him on the charge involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all of the other evidence in the case as an indication or proof of consciousness of guilt.
Generally, "[f]light of an accused is admissible as evidence of consciousness of guilt, and therefore of guilt." State v. Long, 119 N.J. 439, 499 (1990). Thus, the alleged flight that is the subject of a flight instruction must have occurred after commission of the offense with which the defendant is charged. However, the attempted murder, aggravated assault and resisting arrest charged in the indictment against defendant all occurred after the flight to his car and flight from the police referenced in the court's flight instruction. Defendant obviously could not have manifested consciousness of guilt of those offenses before he committed them.
The only one of the offenses with which defendant was charged that could have occurred before defendant's alleged flight was possession of a weapon for an unlawful purpose. However, the evidence presented at trial indicated that everyone in the area fled when the three shots were fired into the air. Therefore, defendant's flight to his car was not probative of whether defendant was the shooter. State v. Mann, 132 N.J. 410, 418-19 (1993) ("[f]or departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.").
Under these circumstances, the court's flight instruction was confusing and misleading, and consequently, should not have been given.
The trial court erroneously instructed the jury regarding the "impossibility" form of attempt proscribed by N.J.S.A. 2C:5- 1a(1) relating to the charge of attempted murder. A person is guilty of an attempt if, acting with the kind of culpability otherwise required for commission of the crime, he:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. [N.J.S.A. 2C:5-1a.]
A type a(1) attempt "concerns a completed crime which fails of its purpose because the facts are not as defendant believes them to be," whereas a type a(3) attempt "requires that the actor, with intent to commit the crime, takes a substantial step toward its commission." State v. Kornberger, 419 N.J. Super. 295, 302 (App. Div.), certif. denied, 208 N.J. 368 (2011). A type a(1) attempt involves relatively unusual situations, such as where a defendant inserts an instrument into a woman to perform an abortion, but the woman is not pregnant. See State v. Moretti, 52 N.J. 182, cert. denied, 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968). Another example of this type of attempt is where a defendant aims what he thinks is a functioning gun at another person and pulls the trigger, intending to kill, unaware that the gun is inoperable. See State v. Condon, 391 N.J. Super. 617 (App. Div.), certif. denied, 192 N.J. 74 (2007). This case obviously did not involve this type of an attempt because, under the State's proofs, the handgun was operable and loaded. Therefore, the court should have instructed the jury in accordance with N.J.S.A. 2C:5-1a(3) rather than N.J.S.A. 2C:5-1a(1) in regard to the attempted murder charge.*fn1
The trial court erred in referring to evidence that defendant did not have a "firearm identification card" in instructing the jury regarding the charge of possession of a weapon for an unlawful purpose. In the course of instructing the jury regarding this charge, the court stated:
In this case the State contends that the defendant's unlawful purpose in possessing the firearm was a function of his not having a firearm identification card*fn2 and the manner in which it was utilized -- this is the State's evidence -- at the intersection and later with regard to the allegation that it was fired at three troopers.
The court's reference to defendant's lack of a "firearm purchaser card" in instructing the jury regarding the charge of possession of a weapon for an unlawful purpose was misleading because this offense does not require a showing that the defendant possessed the weapon unlawfully but rather that he had the purpose "to use it unlawfully against the person or property of another." N.J.S.A. 2C:39-4(a)(1). Moreover, a defendant's purpose to use a weapon unlawfully against the person or property of another cannot be inferred from evidence that the weapon was unlicensed. State v. Dixon, 114 N.J. 111, 113 (1989). Therefore, the court should avoid reference to defendant's lack of the permit required to carry the handgun in instructing the jury regarding this offense at the retrial.
The trial court erred in failing, when describing the elements of third-degree resisting arrest, to instruct the jury that the State was required to prove that defendant resisted arrest "by the use or threat to use physical force or violence against the law enforcement officer." N.J.S.A. 2C:29-2a(3)(a). At the retrial, the court should include this element in its instructions regarding the charge of third-degree resisting arrest.
During the cross-examination of the emergency medical technician, Steven Engel, who cared for defendant at the scene of the shooting, defense counsel attempted to question him about a part of his report which stated that when a trooper asked defendant where the weapon was, he kept replying that "he didn't have a gun." The prosecutor objected to the question, and the court sustained the objection.
If the purpose of the question was to support defendant's testimony that he did not in fact possess a gun on the night of the shooting, such testimony by Engel would have been inadmissible hearsay. However, if the purpose of the question was to elicit testimony by Engle, contrary to the testimony of the troopers that defendant told them, when they asked where the gun was, that he had "thrown" it over the fence, that defendant actually told the troopers he did not have a gun, the testimony would be admissible for the purpose of impeachment of the troopers' testimony. See N.J.R.E. 607. Therefore, if Engel is prepared to so testify at the retrial, his testimony should be admitted for this purpose.
Accordingly, we affirm defendant's conviction and sentence for certain persons not to have weapons. We reverse his other convictions and remand the case for a new trial.