State v. Jamil McKinney(073070) , 223 N.J. 475 ( 2015 )

SYLLABUS
(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
interest of brevity, portions of any opinion may not have been summarized.)
State of New Jersey v. Jamil McKinney (A-74/75-13)(073070)
State of New Jersey v. Al-Tariq Wardrick (A-76-13) (073078)
Argued January 20, 2015 -- Decided August 27, 2015
CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In these consolidated appeals, the Court considers whether the jury instructions were erroneous and, if so,
whether that error requires a new trial.
These consolidated appeals arise from an incident in which three armed men forced their way into the
apartment in which Christopher Jones resided with his nieces, Tiara Parker and Lakesha Bella, and his nieces’
friends, Shontae Lewis and Latanya Carter. Once inside, two of the intruders kicked in the door of the bedroom
Lewis and Parker shared. They pointed their guns at the girls, asked where the money was, and then directed the
girls into the living room. One intruder stayed with the girls, while the other two walked toward Christopher’s
room. Once inside, the men demanded his money and jewelry. When Christopher told them he had neither, one of
the assailants started tussling with him. The struggle ended when one of the attackers hit Christopher in the head
with his gun. Christopher’s brother, Melvin Jones, who also lived in the building, was awakened by the
commotion. He came out of his apartment to investigate, but was confronted by several people standing in the
hallway. One of the attackers pointed a gun at Melvin and ordered him back inside. Melvin returned to his
apartment, called the police, and gave the dispatcher a description of the armed men. Several officers responded to
the scene and pursued men who matched the description. After apprehending the suspects, the officers transported
the men back to the scene of the home invasion for identification. Melvin identified the detained suspects, Al-Tariq
Wardrick and Jamil McKinney (together defendants), as two of the three intruders.
Defendants were charged in a seventeen-count indictment and tried jointly by a jury. At trial, all counsel
and the court agreed that the jury would not consider any lesser-included offenses of first-degree robbery.
However, during its instructions to the jury, the court stated the following: “If you find that the State has proven
beyond a reasonable doubt that [defendants] committed the crime of robbery as I have defined the crime to you, but
if you find that the State has not proven beyond a reasonable doubt that [defendants] were armed with or used or
purposely threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then you
must find [defendants] guilty of robbery in the second degree.” Realizing its error, the court then stated, “I think I
indicated that – a portion of the charge that referred to robbery of the second degree. There is no charge of robbery
of the second degree. So that part is omitted.” Later, in the course of instructing the jury on first-degree robbery,
the court mentioned second-degree robbery again. The jury ultimately found both men guilty of multiple offenses,
including second-degree conspiracy to commit robbery (count one), first-degree robbery (count two), and second-
degree burglary (count fourteen).
Defendants subsequently filed separate appeals that were neither consolidated nor calendared back-to-back.
One panel of the Appellate Division (the McKinney panel) held that the first-degree robbery instructions contained
errors that had the clear capacity to produce an unjust result and, therefore, reversed McKinney’s conviction for
first-degree robbery and remanded for a new trial on that count. The Court subsequently granted certification. 217
N.J. 291 (2014). A different Appellate Division panel (the Wardrick panel) held that the charge was erroneous, but
that the error was harmless, as there was sufficient evidence from which a jury could have found that, in the course
of committing a theft, defendant was armed with a deadly weapon. In December 2012, Wardrick petitioned the
panel to reconsider his appeal in light of the outcome of McKinney’s appeal. He argued that the same infirmity in
the robbery charge impacted his trial and required reversal. On reconsideration, the Appellate Division again
affirmed his conviction. The Court subsequently granted certification limited to whether: 1) the Appellate Division
erred in affirming defendant’s conviction in light of another panel’s reversal of his co-defendant’s conviction arising
out of the same trial and alleged error; and 2) whether the trial court erred in failing to set aside defendant’s
conviction for first-degree robbery. 217 N.J. 293 (2014).
HELD: The trial court’s references to second-degree robbery in the course of the jury instructions were erroneous.
Its subsequent efforts to cure the error were confusing and ineffective. Thus, the instruction constituted reversible
error. The judgment of the Appellate Division in State v. Wardrick is reversed as to his conviction for first-degree
robbery, and the matter is remanded to the trial court for proceedings consistent with this opinion. The judgment is
affirmed in all other respects. The judgment of the Appellate Division in State v. McKinney is affirmed.
1. Defendants did not object to the jury charge at trial. Therefore, the Court reviews the charge for plain error. To
warrant reversal, the error must be clearly capable of producing an unjust result. The Court must not look at
portions of the charge alleged to be erroneous in isolation, but should examine the charge as a whole to determine its
overall effect. In a case where, as here, the State argues that the error is harmless because the trial judge correctly
instructed the jury in other components of the charge, the test is whether the charge accurately sets forth the
controlling principles of law. Trial judges are encouraged to correct errors that occur during trial. A curative jury
instruction is one method to remedy trial error and is sometimes required to address testimony that should not have
been heard by the jury. (pp. 23-27)
2. Here, defendants were found guilty by the same jury, based on the same evidence, but received disparate results
on appeal. That can be explained, in part, by the failure to assign both defendants’ appeals to the same Appellate
Division panel. The results may also be explained by Wardrick’s failure to argue, until he learned of the disposition
of McKinney’s appeal, that the first-degree robbery charge was erroneous. It was in the context of resolving
Wardrick’s motion for reconsideration that the Wardrick panel declined to invoke the law of the case doctrine,
conducted a full review of the first-degree robbery charge, and concluded that any error was harmless. The
Wardrick panel correctly declined to apply the law of the case doctrine with respect to the asserted error. That
ruling is consistent with the Court’s recent opinion in State v. K.P.S., 221 N.J. 266 (2015), which held that due
process dictates that each defendant is entitled to a full and fair review of any order, judgment, or verdict without
regard to the disposition of an appeal filed by another defendant in the same proceeding who happened to receive a
decision before his co-defendants. (pp. 28-29)
3. Here, the parties and trial court agreed that the jury would not be instructed that it could consider second-degree
robbery as a lesser-included offense. Therefore, the court was obliged to fashion a charge that contained the
essential elements of the first-degree robbery offense with no mention of second-degree robbery. That is not what
occurred. Compounding the error, the court did not provide an adequate curative instruction and delivered
confusing directions regarding the circumstances that required a guilty or not guilty verdict. The court’s initial error
demanded a more thorough and pointed curative instruction. The court’s reference to second-degree robbery in the
charge, and its failure to adequately resolve that confusion, had the clear capacity to permit defendants to be found
guilty of first-degree robbery without a finding that they were armed. Therefore, a new trial is required for both
defendants on the first-degree robbery count. (pp. 29-30)
4. The Court has approved of jury instructions that simply state that the jury must find that the State has proven each
element of the offense beyond a reasonable doubt in order to find a defendant guilty. The better practice, however,
is for the court specifically to inform the jury that it must find the defendant not guilty if it fails to find any element
beyond a reasonable doubt. Here, the trial court’s reference to second-degree robbery was erroneous and the court’s
efforts to fix the error were confusing. Thus, the instruction constituted reversible error. (pp. 31-36)
The judgment of the Appellate Division in State v. Wardrick is AFFIRMED in part and REVERSED in
part. The matter is REMANDED to the trial court for proceedings consistent with this opinion. The judgment of
the Appellate Division in State v. McKinney is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and SOLOMON join in JUDGE CUFF’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-74/75 September Term 2013
073070
A-76 September Term 2013
073078
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
JAMIL MCKINNEY, a/k/a JAMEEL
MCKINNEY, HAKIM MCKINNEY,
MALIK HOWARD and JAMIL
WARDRICK,
Defendant-Respondent
and Cross-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AL-TARIQ WARDRICK,
Defendant-Appellant.
Argued January 20, 2015 – Decided August 27, 2015
On certification to the Superior Court,
Appellate Division.
Lucille M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for appellant and cross-respondent
State of New Jersey in State v. Jamil
McKinney and respondent in State v. Al-Tariq
Wardrick (Carolyn A. Murray, Acting Essex
County Prosecutor, attorney).
1
Michele A. Adubato, Designated Counsel,
argued the cause for appellant Al-Tariq
Wardrick (Joseph E. Krakora, Public
Defender, attorney; Ms. Adubato and Alison
S. Perrone, Designated Counsel, on the
briefs).
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for respondent
and cross-appellant Jamil McKinney (Joseph
E. Krakora, Public Defender, attorney).
Sarah E. Ross, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
JUDGE CUFF (temporarily assigned) delivered the opinion of
the Court.
These consolidated appeals arise from an intrusion into an
apartment by three armed men. Al-Tariq Wardrick and Jamil
McKinney (together defendants) were identified as two of the
three intruders and were charged in a seventeen-count
indictment. Wardrick and McKinney were tried together by a jury
and convicted of several offenses, including first-degree
robbery and second-degree burglary. Each defendant appealed his
conviction. Normally, their appeals would have been assigned to
the same part of the Appellate Division and likely scheduled on
the same calendar. That did not occur.
One panel of the Appellate Division held that the first-
degree robbery charge contained errors that had the clear
2
capacity to produce an unjust result and reversed McKinney’s
conviction. The other panel of the Appellate Division held that
the charge was erroneous but that the error was harmless. The
panel affirmed Wardrick’s conviction.
Wardrick urges this Court to apply the law of the case
doctrine based on the earlier judgment of the Appellate
Division. We recently addressed this very issue in State v.
K.P.S., 221 N.J. 266 (2015), holding that the doctrine has
little, if any, applicability in a criminal, appellate setting.
Indeed, we held that to apply the doctrine to a subsequent
appeal by a co-defendant who was tried before the same jury or
whose pretrial motion was adjudicated by the same judge in a
single proceeding would contravene the due process rights of the
subsequent defendant.
As to the merits, we agree that the first-degree robbery
jury instruction was erroneous and that the error requires a new
trial on the first-degree robbery charge. Although the trial
court concurred in the position advanced by all counsel that
second-degree robbery should not be submitted to the jury as a
lesser-included offense of first-degree robbery, the trial court
improperly injected second-degree robbery as an alternative
outcome twice and provided an inadequate curative instruction on
both occasions. Having informed the jury that it should convict
defendants of second-degree robbery if it found that they were
3
not armed and having informed the jury that it should disregard
the reference to second-degree robbery, the trial court was
obliged to instruct the jury that it must find defendants not
guilty of first-degree robbery if it found that they were not
armed at the time they committed a robbery. The trial court did
not do so. Therefore, affirm the judgment of the Appellate
Division in State v. McKinney. We reverse the judgment of the
Appellate Division in State v. Wardrick as to his conviction for
first-degree robbery. The judgment is affirmed in all other
respects.
I.
A.
The following facts are derived from the trial record. At
approximately 1:30 a.m. on April 9, 2007, three armed men
forcibly entered a second-floor Newark apartment, where
Christopher Jones1 resided with his two nieces, Tiara Parker and
Lakesha Bella, and his nieces’ friends, Shontae Lewis and
Latanya Carter. Two of the men kicked in the door of the
bedroom shared by Lewis and Parker. They pointed guns at the
girls, asked where the money was, and then directed the young
women into the living room. One of the men stayed with the
girls, while the other, joined by a third intruder, walked
1 Because Christopher Jones shares the same surname as his
brother, Melvin Jones, we refer to both by their first names.
4
toward Christopher’s bedroom. At trial, neither Lewis nor
Parker could identify the men. They recalled, however, that one
of the men wore a white t-shirt and had a silver automatic
handgun, while the other two had black handguns. Lewis also
recalled that the men wore jeans and that one wore a black
shirt.
Two of the intruders entered Christopher’s bedroom. They
brandished weapons and demanded money and jewelry; Christopher
responded that he had neither. One of the intruders grabbed
Christopher, and a “tussle” ensued. The struggle ended when one
of the men struck Christopher in the head with a gun. Both
intruders then left.
Christopher’s brother, Melvin, who lived in an apartment on
the first floor of the building, was awoken by the commotion.
He got dressed and exited his apartment, intending to head up
the stairs to his brother’s apartment, but was confronted by
several people standing in the hallway. One man pointed a gun
at Melvin and told him to go back inside. He returned to his
apartment and contacted the police. Melvin told the dispatcher
that the man who had pointed the gun at him was wearing a gray
sweatshirt, gray jeans, and a do-rag or dark stocking cap; he
described one of the other intruders, also armed, as a “short
stocky guy with dreads.”
5
Christopher was taken by ambulance to the hospital, where
he received eighteen staples in the side of his head.
Christopher reported that the men stole his wallet, watch, and
his mother’s car keys. Those items, as well as Lewis’s purse,
were never recovered.
Officer Lawrence Brown and his partner, Officer Orlando
Andujar, were the first to arrive at the scene. As Officer
Brown approached the area, he saw a “dark-colored vehicle
speeding” away from the house. He then noticed “two males run
across the street directly in front of [him] from the location,
one with a ski mask on and both with handguns in their hands.”
Officer Brown got out of the police vehicle and chased after the
suspects. During the pursuit, Officer Brown saw the individuals
toss away what he believed to be guns and a ski mask. The
suspects then jumped over a fence and into the next yard.
Officer Brown told the dispatcher the direction in which the
suspects were heading. He remained in the yard and searched the
area with his flashlight, eventually finding two guns and a ski
mask.
Several other officers continued the foot pursuit. One of
the suspects was apprehended after becoming entangled in barbed-
wire fencing; the other was seen climbing through the window of
a nearby dwelling. Two officers followed the suspect into the
6
building. They apprehended the individual, who was “crouched
down at the top of the stairwell.”
The police officers transported the two men back to the
scene of the home invasion in separate patrol cars for a “show-
up” identification. Christopher was unable to identify the
intruders because they were wearing masks. Melvin identified
the detained suspects as the intruders; he told police they were
known as “Homey” and “Rico.” Christopher later provided a photo
identification of Wardrick.
An Essex County grand jury returned a seventeen-count
indictment. Both defendants were charged with the following:
second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and
2C:15-1 (count one); first-degree robbery of Christopher Jones
and Shontae Lewis, N.J.S.A. 2C:15-1 (counts two and six);
second-degree aggravated assault of Christopher Jones, N.J.S.A.
2C:12-1(b) (count three); third-degree unlawful possession of a
weapon (handgun), N.J.S.A. 2C:39-5(b) (counts four and nine);
third-degree possession of a weapon (handgun) for an unlawful
purpose, N.J.S.A. 2C:39-4(a) (counts five, ten, and thirteen);
third-degree terroristic threats to Shontae Lewis and Tiara
Parker, N.J.S.A. 2C:12-3(a) (counts seven and eleven); fourth-
degree aggravated assault of Shontae Lewis and Tiara Parker,
N.J.S.A. 2C:12-1(b)(4) (counts eight and twelve); and second-
degree burglary, N.J.S.A. 2C:39-4 (count fourteen). McKinney
7
was also charged with fourth-degree resisting arrest, N.J.S.A.
2C:29-2(a) (count sixteen). Wardrick also was charged with
fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (count
fifteen), and fourth-degree resisting arrest, N.J.S.A. 2C:29-
2(a) (count seventeen).
At trial, neither Lewis nor Parker could identify
defendants as the intruders. However, they did describe the
clothing worn by their assailants. Christopher disavowed his
prior statement to police. He explained that he did not clearly
see the intruders because he was “tussling” with one of the men.
He also stated that he had been released from the hospital just
before the photo identification procedure.
Melvin also recanted his earlier statement to police. That
statement, which identified Wardrick and McKinney by their
street names, was admitted at trial following a Gross2 hearing.
However, Melvin confirmed that Wardrick and McKinney were the
men in the police car at the time of the show-up procedure.
Forensic experts and several police officers, who responded
to the 9-1-1 call and participated in the pursuit, also
testified. Their testimony established that the handgun that
had been possessed by McKinney and recovered by Officer Brown
bore Christopher’s DNA. The ski mask recovered in the yard was
2 State v. Gross, 121 N.J. 1 (1990).
8
tested for hair, skin, and saliva, resulting in a match to a DNA
sample taken from McKinney.
B.
Wardrick and McKinney were tried by a jury together,
commencing in February 2009. At trial, all counsel agreed that
the jury would not consider any lesser-included offenses for
first-degree robbery.
The trial court provided the following instruction on
first-degree robbery within the context of charging the jury on
both conspiracy to commit first-degree robbery (count one) and
first-degree robbery of Christopher (count two):
In order for you to find [defendants]
guilty of robbery, the State is required to
prove each of the following elements beyond a
reasonable doubt: [t]hat [defendants] were in
the course of committing a theft; that while
in the course of committing that theft,
[defendants] knowingly inflicted bodily
injury or the use of force upon another; or B,
threatened another with or purposely put him
in fear of immediate bodily injury.
[(Emphasis added).]
The court then instructed the jury as follows:
In this case, it is alleged that
[defendants] were armed with, used or
threatened the immediate use of a deadly
weapon while in the course of committing the
robbery.
. . . .
In this case the State alleges that
[defendants] were armed with a handgun. You
9
must determine if this object qualifies as a
deadly weapon, and if the State has proven,
beyond a reasonable doubt, that defendant used
in the course of committing this robbery.
. . . .
To summarize, if you find that the State
has not proven beyond a reasonable doubt any
one of the elements of the crime of robbery as
I have defined that crime to you, then you
must find [defendants] not guilty.
If you find that the State has proven
beyond a reasonable doubt that [defendants]
committed the crime of robbery as I have
defined the crime to you, but if you find that
the State has not proven beyond a reasonable
doubt that [defendants] were armed with or
used or purposely threatened the immediate use
of a deadly weapon at the time of the
commission of the robbery, then you must find
[defendants] guilty of robbery of the second
degree.
If you find that the State has proven
beyond a reasonable doubt that the defendant
committed the crime of robbery and was armed
with a deadly weapon or used or threats of the
immediate use of the deadly weapon at the time
of the commission of the robbery, then you
must find [defendants] guilty of robbery in
the first degree.
[(Emphasis added).]
Thereafter, the court stated: “I think I indicated that --
a portion of the charge that referred to robbery of the second
degree. There is no charge of robbery of the second degree. So
that part is omitted.”
Later, in the course of instructing the jury on count six,
first-degree robbery, the trial court again referenced second-
10
degree robbery. That reference occurred as the trial court
instructed the jury about the consequences of finding that the
State did not prove each required element of first-degree
robbery.
The jury ultimately found both McKinney and Wardrick guilty
of second-degree conspiracy (count one), first-degree robbery of
Christopher Jones (count two), and second-degree burglary (count
fourteen). The jury found McKinney guilty of resisting arrest
(count sixteen), and Wardrick guilty of criminal trespass (count
fifteen) and resisting arrest (count seventeen). Both
defendants were acquitted of aggravated assault (count three).
The jury could not reach a verdict on the weapons charges or the
other remaining counts.
A sentencing proceeding for Wardrick took place on May 11,
2009. The court merged count one (conspiracy to commit first-
degree robbery) into count two (first-degree robbery of
Christopher), and imposed a fifteen-year term of imprisonment on
count two, subject to an eighty-five percent parole disqualifier
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The court also imposed concurrent sentences of eight years of
imprisonment on count fourteen (second-degree burglary),
eighteen months on count fifteen (fourth-degree criminal
trespass), and eighteen months on count seventeen (fourth-degree
resisting arrest).
11
McKinney was sentenced on May 29, 2009. The court merged
count one into count two, and imposed an eighteen-year term of
imprisonment on count two, subject to NERA. The court also
sentenced McKinney to a concurrent ten-year term of imprisonment
subject to NERA on count fourteen, and a concurrent eighteen-
month term of imprisonment on count sixteen.
Defendants filed separate appeals that were neither
consolidated nor calendared back-to-back.
II.
A.
On appeal, McKinney argued, among other things, that “the
jury instructions on armed robbery and armed burglary were
confusing and incorrect, particularly in a case where, as here,
the jury had difficulty determining the defendant’s guilt o[n]
the weapons offenses in the indictment.”
The Appellate Division (the McKinney panel) concluded that
“there was reversible error in the first-degree robbery charge.”
The appellate court concluded that the trial court “should have,
but did not, instruct the jury that they should acquit defendant
of armed robbery if they found the elements of unarmed robbery
but had doubt about the armed element.” The panel further noted
that “[t]he jury clearly did not agree on whether defendant was
armed, as it reached no verdict on the weapons counts, but
apparently believed that they should nonetheless convict him
12
based on the unarmed elements of robbery.” On that basis, the
panel reversed defendant’s first-degree robbery conviction and
remanded for a new trial on that count. The Appellate Division
however affirmed the second-degree burglary conviction, stating
that it was “satisfied that the re-instruction sufficiently
cured any confusion that the first instruction may have caused.”
The State filed a petition for certification. This Court
granted certification on March 17, 2014. 217 N.J. 293 (2014).
B.
On appeal, Wardrick argued that the trial court erred in
denying his motion to set aside the conviction for first-degree
robbery based on the inconsistency of the jury’s verdicts. A
different panel of the Appellate Division (the Wardrick panel)
affirmed his conviction, stating that inconsistent verdicts have
long been accepted within our criminal justice system, (citing
State v. Banko, 182 N.J. 44, 53 (2004)), so long as there is
sufficient evidence in the record for the charges. Because the
jury could not reach a verdict and defendant was therefore not
acquitted of the weapons offenses, the appellate panel concluded
that an analysis of the verdict was not warranted. The panel
remarked, “‘[T]he fact that a jury [is unable to reach a
verdict] is evidence of nothing -- other than, of course, that
it has failed to decide anything.’” (Alterations in original)
(quoting Yeager v. United States, 557 U.S. 110, 125, 129 S. Ct.
13
2360, 2370, 174 L. Ed. 2d 78, 90 (2009)). The panel recounted
the evidence presented with regard to the weapons charges and
suggested several reasonable explanations for the
inconsistencies.
The Wardrick panel was “satisfied [that] there was
sufficient evidence from which a jury could have found that in
the course of committing a theft, defendant was armed with a
deadly weapon.” The panel noted that it is impermissible
speculation to analyze why the verdicts were inconsistent, and
that, in and of itself, an inconsistent verdict is insufficient
to require reversal.
In December 2012, Wardrick petitioned the Wardrick panel to
reconsider his appeal in light of the outcome of co-defendant
McKinney’s appeal. He argued that the same infirmity in the
robbery charge impacted his trial and required reversal. The
Appellate Division granted his motion for reconsideration.
On reconsideration, the Wardrick panel again affirmed Wardrick’s
conviction. It disagreed with the McKinney panel’s conclusion
that the jury believed it could convict McKinney of first-degree
robbery if he was unarmed. The Wardrick panel also noted that
“the decision of one co-equal court is not binding upon another
co-equal court.” Wardrick filed a petition for certification.
On March 17, 2014, this Court granted certification limited to
the issues of whether: “1) the Appellate Division erred in
14
affirming defendant’s conviction in light of another panel’s
reversal of his co-defendant’s conviction arising out of the
same trial and alleged error; and 2) whether the trial court
erred in failing to set aside defendant’s conviction for first-
degree robbery.” 217 N.J. 291 (2014).
III.
A.
McKinney argues that the appellate panel correctly
determined that the armed-robbery instruction constituted
reversible error, as it “fail[ed] in the most basic ways to
inform jurors that they must acquit for armed robbery if [they
had] a doubt about the armed element.” According to McKinney,
the instruction was “structured in a way that had the clear
capacity to result in a verdict for armed robbery consisting
only of jury findings of the elements of unarmed robbery, an
intolerable result.”
B.
Wardrick similarly argues that the jury instruction
constituted reversible error, as it did not properly instruct
the jury that it must unanimously agree, beyond a reasonable
doubt, that defendants were armed when they committed the
offense. Wardrick contends that, because the jury did not find
defendants guilty of the weapons charges, “there was a viable
15
question as to whether all the jurors found the armed element of
robbery.” According to Wardrick, the discrepancy may have
stemmed from jury confusion due to the erroneous instruction;
indeed, the jurors should have been informed that they must
acquit defendants of first-degree robbery if they were not
unanimously convinced that defendants were armed.
Wardrick also argues that, under the law of the case
doctrine, the Wardrick panel, in reviewing his motion for
reconsideration, erred in affirming his conviction in light of
the Appellate Division’s disposition of McKinney’s appeal.
Wardrick urges that his “right to a fair trial . . . was just as
prejudiced as Mr. McKinney[’s] by that erroneous instruction.”
According to Wardrick, the law of the case doctrine
“[e]nsures uniformity of decisions, and protects the
expectations of the parties”; thus, “‘when an issue is once
litigated and decided during the course of a particular case,
that decision should be the end of the matter,’” (quoting State
v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974)). Wardrick
argues that, once the McKinney panel ruled on the issue, the
“Wardrick panel could not independently consider the issues on
appeal. . . . The fact [that] the second panel ‘disagreed’ with
the first panel was immaterial and provided no basis not to
apply the law of the case doctrine.”
16
In support of his argument, Wardrick cites to State v.
Ellis, 969 P.2d 1053 (Utah Ct. App. 1998), in which the Utah
Court of Appeals applied the law of the case doctrine to a co-
defendant’s proceeding under a separate appeal. Wardrick also
cites cases in Florida, Alaska, and Iowa, where, according to
Wardrick, the courts applied the law of the case doctrine, even
for issues “not explicitly discussed in the first appellate
opinion,” and regardless of whether those prior decisions were
right or wrong. (Citing Sanders v. State, 689 So. 2d 410 (Fla.
Dist. Ct. App. 1997); Wolfe v. Arctic Bowl, Inc., 560 P.2d 758,
763 (Alaska 1977); State ex. rel. Goettsch v. Diacide Distribs.,
Inc., 596 N.W.2d 532, 537 (Iowa 1999)).
C.
The State contends that defendants cannot meet the plain
error standard, as any error in the charge is harmless beyond a
reasonable doubt when considered in the context of the entire
charge and the overwhelming evidence against defendants. Thus,
the State requests that the Court affirm the Wardrick panel’s
decision, reverse the McKinney panel’s decision, and reinstate
McKinney’s conviction for first-degree robbery.
The State argues that the trial court’s instructions “were
complete and unambiguous, charging on all elements of each
respective offense, and instructing on the fundamental
principles of law that controlled the case.” According to the
17
State, the robbery charge “complied with the Model Criminal Jury
Charge on robbery in the first-degree.” The State contends that
despite the misstatement, the court clearly outlined the
complete charge for first-degree robbery. When the judge
misspoke, the State asserts that she promptly informed the jury
of the error and offered a curative instruction, which did not
confuse or impair the instruction as a whole. According to the
State, the fact that neither trial counsel objected to the
charge leads to the presumption that counsel did not believe the
charge was incorrect or confusing. The State further points out
that the jury sheet listed only first-degree robbery under count
two.
The State argues that the McKinney panel gave too much
weight to the inconsistent verdict, ignoring the fact that
“well-established legal principles” permit a jury to render
inconsistent verdicts as long as each charge is supported by
sufficient evidence in the record. According to the State, the
evidence in the present case “amply supported the first-degree
robbery convictions.” Furthermore, the State contends that
there are many potential explanations for why the jury was
unable to reach a decision regarding the weapons charges; yet,
18
under the “Dunn/Powell3 rule,” the court should not engage in
“pure speculation” to investigate the verdict.
The State also asserts that the law of the case doctrine
“directs discretion, but does not compel submission.” According
to the State, one appellate panel is permitted to disagree with
the legal or factual conclusions of another, as the Appellate
Division is bound only by the decisions of this Court. The
State maintains that the Wardrick panel properly considered and
“gave due deference” to the McKinney panel’s conclusion but
nonetheless reached a different result.
Furthermore, the State submits that the law of the case
doctrine is inapplicable here because the two appeals were
“pending at the same time.” Thus, “the Wardrick panel was not
being asked to reconsider the same issue in a subsequent
appeal.”
D.
The Attorney General of New Jersey, appearing as amicus
curiae, urges the Court to reverse the judgment of the McKinney
panel and reinstate the conviction, and to affirm the judgment
of the Wardrick panel.
3 Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed.
356 (1932); United States v. Powell, 469 U.S. 57, 105 S. Ct.
471, 83 L. Ed. 2d 461 (1984).
19
Amicus states that judges frequently misspeak when
administering jury charges but are “permitted to correct the
mistake without jeopardizing the entire trial.” Amicus warns
that it would simply be untenable for the courts to permit
reversal every time a judge misspeaks.
Amicus asserts that the jury instructions in this case did
not create reversible error, as the trial court “correctly
instructed the jury on the controlling law.” According to
amicus, when read in context, the trial judge’s “minor,
immediately self-corrected mistake . . . could not have
substantially prejudiced defendants.” Amicus argues that, by
disregarding the curative statement, the McKinney panel
“essentially raised a misstatement to the level of per se
reversible error that cannot be corrected.” The Attorney
General further points out that defense counsel had multiple
opportunities to object to the charge; the co-defendants “should
not be rewarded for allowing an instruction to go to the jury
and then, once convicted, using the instruction as ammunition on
appeal.”
Amicus contends that the McKinney panel’s analysis of the
inconsistent verdicts involved “improper speculation.”
According to amicus, inconsistent verdicts are acceptable and
non-reviewable so long as there is sufficient evidence in the
record to support the conviction. The Attorney General urges
20
that, in this case, the record contained “more than sufficient
evidence” to support the conviction of first-degree robbery.
Addressing Wardrick’s appeal, amicus contends that the
appellate panel appropriately disagreed with the McKinney panel.
The Attorney General submits that, although Appellate Division
opinions are binding on the lower courts, they are not binding
on other appellate panels; this principle is particularly true
when the previous decision “is erroneous and results in
injustice.” The Attorney General urges that the law of the case
doctrine should be applied flexibly so as to “‘balance the value
of judicial deference for the rulings of a coordinate judge
against those factors that bear on the pursuit of justice and,
particularly, the search for truth.’” (Quoting Lombardi v.
Masso, 207 N.J. 517, 538-39 (2011)).
The Attorney General argues that although it is unusual for
different appellate panels to hear cases involving co-
defendants, it “does not mean . . . that the decision of the
panel that was released first controls.” According to amicus,
the Wardrick panel gave “due consideration to the decision of
its sister panel” and articulated specific reasons why it
disagreed with the McKinney panel’s decision.
IV.
A.
21
Earlier this term, in K.P.S., supra, the Court addressed
the application of the law of the case doctrine in the context
of appellate review of a criminal case. 221 N.J. at 270. We
concluded that the doctrine had little, if any, vitality in that
context and disapproved the invocation of the doctrine to
resolve a criminal appeal. Ibid.
In K.P.S., police executed a series of searches of one
person’s home. Id. at 271. Three persons were charged in an
indictment with numerous counts of aggravated sexual assault
based on evidence seized during those searches. Ibid. The
three co-defendants filed a joint motion to suppress. Ibid.
Each claimed that the searches violated their federal and state
constitutional rights. Ibid. Following an evidentiary hearing,
the trial court denied the joint motion. Id. at 272.
Thereafter, each defendant entered a plea agreement and
pled guilty. Id. at 272-73. After sentencing, the three
defendants appealed their sentences and the denial of their
motions to suppress. Id. at 273. One defendant’s appeal was
heard by a panel of the Appellate Division, which affirmed the
order denying the motion to suppress in an unpublished opinion
issued in 2011. Ibid. Two years later, a different panel
addressed the appeal by the two other defendants, who raised
essentially the same issues as the other defendant. Id. at 274.
The second panel affirmed the order denying the motions to
22
suppress; in doing so it invoked the law of the case doctrine to
preclude review of the same issues raised by their co-defendant
and decided in his appeal. Ibid.
In its review of the appeal decided second, the Court
recognized that the principles underlying the law of the case
doctrine and collateral estoppel are similar. Id. at 277. We
emphasized that “[a] fundamental tenet of collateral estoppel is
that the doctrine cannot be used against a party unless that
party either participated in or was ‘in privity with a party to
the earlier proceeding.’” Ibid. (quoting In re Estate of
Dawson, 136 N.J. 1, 20 (1994)). That tenet prohibits
application of collateral estoppel if a party has not had a
“‘full and fair opportunity to litigate an issue.’” Id. at 278
(quoting Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 337
(1996)). Similarly, the law of the case doctrine cannot bar a
defendant from a full and fair opportunity for appellate review
of an order adjudicating a motion or other application simply
because another party received a ruling on similar issues based
on the same record. Id. at 279-80.
The Court emphasized in K.P.S. that application of the law
of the case doctrine in appellate proceedings conflicts with a
defendant’s due process rights. Id. at 279. Those rights can
only be satisfied if each defendant receives a full and fair
23
review of his or her appeal to set aside an order or a verdict.
Id. at 279-80.
B.
McKinney and Wardrick did not object to the jury
instruction at trial; the Court reviews the charge for plain
error. R. 1:7-2; R. 2:10-2; see also State v. Singleton, 211
N.J. 157, 182 (2012). To warrant reversal, the error must be
“clearly capable of producing an unjust result.” R. 2:10-2. We
have established that
[i]n the context of jury instructions, plain
error is “[l]egal impropriety in the charge
prejudicially affecting the substantial
rights of the defendant and sufficiently
grievous to justify notice by the reviewing
court and to convince the court that of itself
the error possessed a clear capacity to bring
about an unjust result.”
[State v. Camacho, 218 N.J. 533, 554 (2014)
(quoting State v. Adams, 194 N.J. 186, 207
(2008)).]
The Court must not look at portions of the charge alleged
to be erroneous in isolation; rather, “‘the charge should be
examined as a whole to determine its overall effect,’” State v.
Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Wilbely, 63
N.J. 420, 422 (1973)), and “whether the challenged language was
misleading or ambiguous,” State v. Nelson, 173 N.J. 417, 447
(2002) (citing State v. Simon, 161 N.J. 416, 477 (1999)); see
24
also State v. Torres, 183 N.J. 554, 564 (2005); Wilbely, supra,
63 N.J. at 422.
“An essential ingredient of a fair trial is that a jury
receive adequate and understandable instructions.” State v.
Afanador, 151 N.J. 41, 54 (1997) (citing State v. Martin, 119
N.J. 2, 15 (1990)). “Appropriate and proper jury instructions
are essential to a fair trial.” State v. Green, 86 N.J. 281,
287 (1981) (citing Gabriel v. Auf Der Heide-Aragona, Inc., 14
N.J. Super. 558, 563-64 (App. Div. 1951)). Jury instructions
have been described as “a road map to guide the jury[;] without
an appropriate charge, a jury can take a wrong turn in its
deliberations.” Martin, supra, 119 N.J. at 15.
The trial court has clear directives with regard to what
must be included in the charge. The judge “should explain to
the jury in an understandable fashion its function in relation
to the legal issues involved.” Green, supra, 86 N.J. at 287
(citing Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92
(1966)). The trial judge must deliver “a comprehensible
explanation of the questions that the jury must determine,
including the law of the case applicable to the facts that the
jury may find.” Id. at 287-88. The trial judge must “instruct
the jury as to the fundamental principles of law which control
the case [including] the definition of the crime, the commission
of which is basic to the prosecution against the defendant.”
25
Id. at 288 (quoting State v. Butler, 27 N.J. 560, 595-96
(1958)).
“Because proper jury instructions are essential to a fair
trial, ‘erroneous instructions on material points are presumed
to’ possess the capacity to unfairly prejudice the defendant.”
State v. Bunch, 180 N.J. 534, 541-42 (2004) (quoting Nelson,
supra, 173 N.J. at 446); see also Jordan, supra, 147 N.J. at 422
(finding that some jury instructions are “so crucial to the
jury’s deliberations on the guilt of a criminal defendant that
errors in those instructions are presumed to be reversible”).
Therefore, “[e]rroneous instructions are poor candidates for
rehabilitation as harmless, and are ordinarily presumed to be
reversible error.” Afanador, supra, 151 N.J. at 54 (citing
State v. Brown, 138 N.J. 481, 522 (1994)). “This requirement of
a charge on a fundamental matter is more critical in a criminal
case when a person’s liberty is at stake.” Green, supra, 86
N.J. at 289.
In a case where, as here, the State argues that the error
is harmless because the trial judge correctly instructed the
jury in other components of the charge, “[t]he test to be
applied . . . is whether the charge as a whole is misleading, or
sets forth accurately and fairly the controlling principles of
law.” State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div.
1997) (alteration in original) (quoting State v. Sette, 259 N.J.
26
Super. 156, 190-91 (App. Div.), certif. denied, 130 N.J. 597
(1992)), certif. denied, 153 N.J. 49 (1998). “[T]he key to
finding harmless error in such cases is the isolated nature of
the transgression and the fact that a correct definition of the
law on the same charge is found elsewhere in the court’s
instructions.” Ibid.
In Jackmon, supra, the defendant argued that the trial
judge incorrectly charged the jury on accomplice liability
because the judge did not clearly distinguish the intent
required for the grades of the offense. 305 N.J. Super. at 284-
85. Additionally, the defendant alleged that the trial judge
did not clearly establish that an attempt requires a purposeful
mens rea, even if another mental state could establish the
underlying crime. Id. at 298. The panel found reversible error
because the critical portions of the charge were not merely
“fleeting reference[s]” and “the entire charge was lengthy and
somewhat confusing.” Id. at 300.
Conversely, in State v. Smith, the panel concluded that the
judge “fully and accurately instructed the jury on the elements
of attempt” even though the instruction was given “during an
explanation of the law relating to another offense.” 322 N.J.
Super. 385, 399 (App. Div.), certif. denied, 162 N.J. 489
(1999). The Appellate Division held that, based on the
defendant’s testimony, the overwhelming evidence that
27
established his guilt, and the “appearance elsewhere in the jury
instructions of a proper charge[,] . . . the failure to define
attempt in the robbery charge did not prejudice defendant’s
rights.” Id. at 400.
A trial judge is permitted and encouraged to correct errors
that occur during trial. A curative jury instruction is one
method to remedy trial error, and is sometimes required to
address testimony that should not have been heard by the jury,
see Verdicchio v. Ricca, 179 N.J. 1, 36 (2004), or to address
erroneous statements by attorneys in their closing arguments,
see Bender v. Adelson, 187 N.J. 411, 436-37 (2006). In those
contexts, the decision to provide a curative instruction and the
content of that statement is left to the discretion of the trial
judge. State v. Yough, 208 N.J. 385, 397 (2011). When a trial
court has given an erroneous, misleading, or confusing
instruction, the trial court must take all appropriate measures
to assure that the instructions provide a clear and correct
statement of the law and the consequences if a jury finds that
the State has not established all essential elements of an
offense.
V.
Defendants were tried together. Both were found guilty by
the same jury, based on the same evidence, but received
disparate results on appeal: McKinney’s conviction for first-
28
degree robbery was reversed, and he was granted a new trial on
that charge; Wardrick’s conviction was affirmed. The disparate
results can be explained in part by the failure to assign both
defendants’ appeals to the same part of the Appellate Division.
The circumstances that permitted those appeals to be assigned to
different panels have been addressed and are unlikely to recur.
The disparate results may also be explained by Wardrick’s
failure to argue, until he learned of the disposition of
McKinney’s appeal, that the first-degree robbery charge was
erroneous and the attempt to correct it compounded the error.
It was in the context of resolving Wardrick’s motion for
reconsideration that the Wardrick panel not only declined to
invoke the law of the case doctrine, but also conducted a full
review of the first-degree robbery charge, and concluded that
any error was harmless.
The Wardrick panel correctly declined to apply the law of
the case doctrine with respect to the asserted error in the
first-degree robbery instruction. The panel’s ruling is
consistent with our recent opinion in K.P.S., supra, in which we
held that due process dictates that each defendant is entitled
to a full and fair review of any order, judgment, or verdict
without regard to the disposition of an appeal filed by another
defendant in the same proceeding who happened to receive a
decision before his co-defendants. 221 N.J. at 278-79. We
29
would be remiss however if we did not note that the better
practice would have been to transfer the Wardrick and McKinney
appeals to the same part of the Appellate Division as soon as
the appellate court recognized the calendar error.
With both appeals before the Court, we turn to the central
issue of this appeal -- whether the first-degree robbery
instruction was erroneous and, if so, whether that error
requires a new trial. We conclude that the instruction on
first-degree robbery as part of the conspiracy charge (count
one) and the first-degree robbery charge (count two) erroneously
referred to second-degree robbery. Compounding the error, the
trial court did not provide an adequate curative instruction,
and delivered confusing directions regarding the circumstances
that required a guilty or not guilty verdict. A new trial is
required for both defendants on the first-degree robbery count.
The trial record was replete with evidence that the men who
entered Christopher’s apartment and the man who confronted
Melvin were armed. The parties therefore agreed among
themselves, and the trial court concurred, that the jury would
not receive an instruction that it could consider second-degree
robbery as a lesser-included offense. Once the trial court
agreed not to provide an instruction on the lesser-included
offense of second-degree robbery, the court was obliged to
fashion a charge that contained the essential elements of the
30
first-degree robbery offense with no mention of second-degree
robbery. That is not what occurred.
Instead the trial court utilized the Model Jury Charge for
first-degree robbery, Model Jury Charge (Criminal), “Robbery in
the First Degree (N.J.S.A. 2C:15-1)” (2010). In providing the
jury instruction on first-degree robbery on count one --
conspiracy to commit first-degree robbery -- and count two --
first-degree robbery of Christopher -- the court immediately
introduced second-degree robbery to the jury. In discussing the
facts that the jury must find to convict a defendant of
conspiracy to commit first-degree robbery and first-degree
robbery, the court provided the following charge:
In order for you to find Jamil McKinney
and Al-Tariq Wardrick guilty of robbery, the
State is required to prove each of the following
elements beyond a reasonable doubt: [t]hat
Jamil McKinney and Al-Tariq Wardrick were in
the course of committing a theft; that while in
the course of committing that theft, Jamil
McKinney and Al-Tariq Wardrick knowingly
inflicted bodily injury or the use of force upon
another; or B, threatened another with or
purposely put him in fear of immediate bodily
injury.
The trial court proceeded to define each element of first-degree
robbery. The court then instructed the jury about the
consequences of its various findings. The court stated:
To summarize, if you find that the State
has not proven beyond a reasonable doubt any
one of the elements of the crime of robbery as
I have defined that crime to you, then you
31
must find Jamil McKinney and Al-Tariq Wardrick
not guilty.
If you find that the State has proven
beyond a reasonable doubt that Jamil McKinney
and Al-Tariq Wardrick committed the crime of
robbery as I have defined the crime to you,
but if you find that the State has not proven
beyond a reasonable doubt that Jamil McKinney
and Al-Tariq Wardrick were armed with or used
or purposely threatened the immediate use of
a deadly weapon at the time of the commission
of the robbery, then you must find Jamil
McKinney and Al-Tariq Wardrick guilty of
robbery of the second degree.
If you find that the State has proven
beyond a reasonable doubt that the defendant
committed the crime of robbery and was armed
with a deadly weapon or used or threats of the
immediate use of the deadly weapon at the time
of the commission of the robbery, then you
must find Jamil McKinney and Al-Tariq Wardrick
guilty of robbery in the first degree.
A section of this statute provides that
[]robbery is a crime -- hold on.
Counsel, can we have a side bar just a
moment?
[(Emphasis added).]
Having recognized the erroneous instruction that would have
permitted a verdict of guilty of second-degree robbery and
having had a side-bar discussion with all counsel, the trial
court stated:
Even as fast as I’m reading, I do know when
something is not supposed to be in here, and
so to just backtrack, I think I indicated that
-- a portion of the charge that referred to
robbery of the second degree. There is no
charge of robbery of the second degree. So
that part is omitted.
32
That curative instruction did not solve the problem and may
have compounded it. To be sure, the trial court informed the
jury that second-degree robbery was not before them. The trial
court however had just informed the jury that it was to convict
defendants of second-degree robbery if it found that the State
had not proven that Wardrick and McKinney were armed. The trial
court never informed the jury that it must find Wardrick and
McKinney not guilty of first-degree robbery if it found that the
State had not proven that Wardrick and McKinney were armed.
Then, in the course of the first-degree robbery charge
regarding another victim (count six), the trial court informed
the jury that it must find defendants not guilty if it found
that the State did not prove each element of the offense. The
court then launched into a discussion of the consequence of
finding that the State had not proven that defendants were armed
as if second-degree robbery was a lesser-included offense. The
trial court stated:
To summarize, if you find the State has
not proven beyond a reasonable doubt any one
of the elements of the crime of robbery as I
have defined that crime to you, then you must
find Jamil McKinney and Al-Tariq Wardrick not
guilty.
If you find the State has proven beyond
a reasonable doubt that Jamil McKinney and/or
Al-Tariq Wardrick committed the crime of
robbery, as I have defined that crime to you,
but if you find that the State has not proven
beyond a reasonable doubt that Jamil McKinney
33
and Al-Tariq Wardrick was armed with or used
or purposely threatened the immediate use of
a deadly weapon at the time of the commission
of a robbery, then you must find Jamil
McKinney and Al-Tariq Wardrick guilty of a --
again there is no charge of a second degree.
If you find that the State has proven
beyond a reasonable doubt that Jamil McKinney
and/or Al-Tariq Wardrick committed the crime
of robbery and was armed with a deadly weapon
or used or threatened immediate use of a
deadly weapon at the time of commission of a
robbery, then you must find Jamil McKinney and
Al-Tariq Wardrick guilty of robbery in the
first degree.
[(Emphasis added).]
As we have just related, the trial court informed the jury
of each element of the first-degree robbery offense. The court
emphasized that the State was required to prove each element
beyond a reasonable doubt. The trial court expressly informed
the jury of the consequences if it found that the State had
carried its burden as to each element, but became sidetracked
when discussing the consequences of a finding that defendants
were not armed by referring to second-degree robbery. Indeed,
the trial court committed the same error twice and twice missed
the opportunity to provide a clear and correct curative
instruction that the jury must find defendants not guilty of
first-degree robbery if it found that they were not armed.
Simply stating that second-degree robbery was not before the
jury provided insufficient guidance to the jury.
34
Neither defendant objected to the conspiracy to commit
first-degree robbery or first-degree robbery charges. We
therefore review the erroneous reference to second-degree
robbery in the context of the plain error standard. See R.
2:10-2. We do not hesitate to conclude that the erroneous
reference to second-degree robbery was “‘[l]egal impropriety . .
. prejudicially affecting the substantial rights of the
defendant sufficiently grievous to justify notice by the
reviewing court and to convince the court that of itself the
error possessed a clear capacity to bring about an unjust
result.’” Jordan, supra, 147 N.J. at 422 (quoting State v.
Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.
Ct. 2254, 26 L. Ed. 2d 797 (1970)); accord Camacho, supra, 218
N.J. at 554. The trial court’s initial error demanded a more
thorough and pointed curative instruction. Simply stating that
“[t]here is no charge of robbery of the second degree . . . so
that part is omitted” was insufficient. The confusion caused by
the trial court introducing second-degree robbery into the
charge and failing to adequately resolve that confusion had the
clear capacity to permit defendants to be found guilty of first-
degree robbery without a finding that they were armed.
We recognize that this Court has approved of jury
instructions that simply state that the jury must find that the
State has proven each element of the offense beyond a reasonable
35
doubt in order to find a defendant guilty. See State v. Harris,
141 N.J. 525, 545 (1995). The better practice, especially when
one element is the particular subject of dispute -- and required
in this instance -- is for the court specifically to inform the
jury that it must find the defendant not guilty if it fails to
find that element beyond a reasonable doubt.
VI.
In summary, we reiterate our holding in K.P.S. that the
application of the law of the case doctrine in criminal
appellate proceedings by co-defendants violates the due process
right of each defendant to a full and fair review of each
defendant’s appeal. The Wardrick panel properly declined to
apply that doctrine when it did not defer to the analysis of the
McKinney panel.
We also conclude that the trial court’s erroneous reference
to second-degree robbery in the course of the jury instruction
on conspiracy to commit first-degree robbery and first-degree
robbery had no place in the instruction. Accordingly, the
reference to second-degree robbery was error. In addition, the
efforts to cure the error were confusing and ineffective. The
jury was never expressly informed that it must find defendants
not guilty of first-degree robbery if it found that defendants
36
were not armed. Thus, the instruction constituted reversible
error.4
VII.
The judgment of the Appellate Division in State v. Wardrick
is reversed as to his conviction for first-degree robbery, and
the matter is remanded to the trial court for proceedings
consistent with this opinion. The judgment is affirmed in all
other respects. The judgment of the Appellate Division in State
v. McKinney is affirmed.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUDGE CUFF’s
opinion.
4 Before this Court, each defendant urged reversal only of the
first-degree robbery conviction (count two), even though the
same error affected the conspiracy to commit first-degree
robbery conviction (count one). On remand, defendants may raise
before the trial court the issue of the conspiracy charge and
the appropriate remedy.
37
SUPREME COURT OF NEW JERSEY
NO. A-74/75 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
JAMIL MCKINNEY, a/k/a JAMEEL
MCKINNEY, HAKIM MCKINNEY,
MALIK HOWARD and JAMIL
WARDRICK,
Defendant-Respondent
and Cross-Appellant.
DECIDED August 27, 2015
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7
SUPREME COURT OF NEW JERSEY
NO. A-76 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AL-TARIQ WARDRICK,
Defendant-Appellant.
DECIDED August 27, 2015
Chief Justice Rabner PRESIDING
OPINION BY Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRM IN
PART/
CHECKLIST REVERSE IN
PART/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7