State v. Pena , 178 N.J. 297 ( 2004 )

Justice VERNIERO,

concurring and dissenting.

I concur with the Court’s statutory analysis but respectfully dissent from its ultimate disposition. I would find that the trial court’s failure to charge a mistake-of-fact defense was harmless error.

I fully appreciate that “erroneous [jury] instructions on material issues are presumed to be reversible error, excusable only if they are harmless beyond a reasonable doubt.” State v. Warren, 104 N.J. 571, 579, 518 A.2d 218, 222 (1986) (internal citation and quotation marks omitted). Harmless error in these circumstances ordinarily is not found. However, this is the unusual case in which the record lends itself compellingly to a harmless-error analysis.

The State presented overwhelming evidence of defendant’s guilt. Included in those proofs were the undisputed expert testimony that Houston (the city to which defendant traveled to secure the contraband) is a source city for cocaine; that drug traffickers often purchase one-way tickets (like the ticket purchased for defendant) to source cities; that they purchase those tickets with cash (as happened here); and evidence that defendant himself was familiar with the drug trade because of a prior drug conviction (which the jury learned by his own testimony).

Importantly, the State’s proofs also included the physical evidence such as the suitcase containing the cocaine that defendant was carrying when arrested. Defendant testified to his belief that the suitcase contained not cocaine, but rather six fur coats that he described as “medium size, ... long sleeve, very furry and inside, very comfortable.” (We inspected the suitcase, which is part of the record. It is an average-size container, approximately eight inches wide, seventeen inches high, and twenty-four inches long, suitable for one person to carry.)

In her closing argument the assistant prosecutor pointedly referred to the physical and testimonial evidence, asking jurors,

how many fur coats ... do you think you can get into [that] suitcase? Six? Wrong. No. I want you, when the suitcase goes [into the jury deliberation room] with the drugs, I want you to feel how heavy it is with and without the drugs. And I want you to ask yourself those questions that I had asked of you. Because when you do that, you’re going to know, you’re going to find out for yourselves that the reason that defendant went to Houston was to pick up the drugs, the merchandise as he puts it.

The conclusion is unmistakable that, in returning its guilty verdict, the jury simply could not accept that defendant was laboring under the mistaken belief that he was carrying six “long sleeve, very furry” fur coats in that single suitcase. The jury’s determination should come as no surprise. As demonstrated by the assistant prosecutor, it is virtually impossible for a person to fit and carry six such fur coats in the suitcase used by defendant. Affording an accused a fair trial does not mean that we must expect jurors to accept an utterly implausible or untenable defense.

Although the trial court did not instruct the jury on mistake-of-fact, neither did it contradict that theory in its overall charge. Moreover, jurors fully were aware of the defendant’s position. Indeed, defendant’s entire defense was predicated on that proposition, which the jury presumably understood based on defendant’s testimony and his counsel’s statements to jurors. (Defense counsel repeatedly referred jurors to defendant’s mistake-of-fact defense.) ‘We must ... consider the charge [that was given here] in light of the arguments made by trial counsel, as those arguments can mitigate prejudice resulting from a less-than-perfect charge.” State v. Robinson, 165 N.J. 32, 47, 754 A.2d 1153, 1161 (2000).

In sum, I am satisfied beyond a reasonable doubt that the brief charge that the majority now requires would not have altered the jury’s verdict. Defendant presented his mistake-of-fact defense, albeit without his requested instruction. Yet, “[ejonsidering the instructions in their entirety, in the context of the evidence and the arguments of trial counsel, [I am] convinced that the charge [that was given in this case] was fair.” Ibid. Measured against the overwhelming proofs presented by the State, there was nothing about defendant’s trial that was capable of producing an unjust result. The jury’s verdict, therefore, should not be disturbed.

Chief Justice PORITZ joins this opinion.

For reversing and remanding — Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE — 5.

Concurring in part/dissenting in part — Chief Justice PORITZ, and Justice VERNIERO — 2.