STATE OF NEW JERSEY v. ANTHONY M. HARRIS (18-09-1246, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4177-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY M. HARRIS,
Defendant-Appellant.
_______________________
Submitted February 9, 2022 – Decided August 31, 2022
Before Judges Gilson, Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey,
Law Division, Burlington County, Indictment No. 18-
09-1246.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anderson D. Harkov, Designated Counsel,
on the brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
After defendant's first trial resulted in a hung jury, defendant was re-
tried before a second jury and convicted of aggravated manslaughter, N.J.S.A.
2C:11-4(a)(1); possession of a handgun for an unlawful purpose, N.J.S.A.
2C:39-4(a)(1); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1).
He was sentenced to an aggregate extended term of fifty years of
imprisonment, subject to an eighty-five percent period of parole ineligibility
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The convictions stemmed from a shooting during a fistfight that resulted
in the death of an onlooker. Although ballistics evidence showed that multiple
weapons had been fired, the victim was likely killed by three shots fired from a
single .38 caliber weapon, and the State produced three witnesses who
implicated defendant. The three witnesses, two of whom were only
forthcoming after their own arrests on unrelated matters, gave conflicting
testimony on certain points, and one of the witnesses did not identify
defendant in the courtroom.
On appeal, defendant raises the following points for our consideration:
POINT ONE
THE COURT ERRED WHEN IT FAILED TO
GRANT DEFENDANT'S MOTION FOR A
JUDGMENT OF ACQUITTAL, MADE AT THE
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END OF THE STATE'S CASE AND AS PART OF
HIS MOTION FOR A NEW TRIAL AFTER THE
VERDICT.
POINT TWO
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR WHEN IT FAILED TO INSTRUCT THE
JURY WHAT WAS AND WAS NOT EVIDENCE,
AND AS A CONSEQUENCE OF THE COURT'S
ERROR THE JURY CLEARLY CONSIDERED
PREJUDICIAL INFORMATION THAT WAS NOT
IN EVIDENCE WHICH SHOULD HAVE
RESULTED IN A MISTRIAL.
POINT THREE
THE NUMEROUS OMISSIONS OF CRITICAL
COMPONENTS OF THE JURY INSTRUCTIONS
DIVERTED THE JURY'S FOCUS FROM THE
PITFALLS AND GAPS IN THE STATE'S CASE
AND DEPRIVED DEFENDANT OF HIS RIGHT TO
A FAIR TRIAL. (NOT RAISED BELOW).
A. The Trial Court Committed Reversible
Error When It Failed To Instruct The Jury
What Was And Was Not Evidence.
B. Despite The Fact That Five Witnesses
Were Examined By Both Sides On Prior
Inconsistent Statements, The Court Failed
To Instruct The Jury That Such
Statements Can Be Considered By The
Jury As Affecting The Witnesses'
Credibility.
C. The Failure Of The Trial Court To
Give A Causation Charge Tailored To The
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Facts Of This Case Steered The Jury
Away From Defendant's Version Of The
Facts And Was Highly Prejudicial.
D. Despite Repeated References To
Defendant's Photograph Being Shown To
Witnesses By Law Enforcement The Trial
Court Failed To Give The Model Charge
On Police Photographs.
POINT FOUR
THE ERRONEOUS AND ONE[-]SIDED SUMMARY
OF THE EYEWITNESS TESTIMONY DURING
THE COURT'S JURY INSTRUCTIONS,
COMBINED WITH [ITS] REPEATED OMISSIONS
OF JURY CHARGES THAT SUPPORTED THE
DEFENSE VERSION OF THE CASE, EXPOSED
THE COURT'S BIAS IN FAVOR OF THE
PROSECUTION TO THE JURY, THUS DEPRIVING
DEFENDANT OF HIS CONSTITUTIONAL RIGHT
TO A FAIR TRIAL.
POINT FIVE
ON TWO OCCASIONS THE COURT ALLOWED
THE STATE TO IMPEACH ITS OWN WITNESSES
WITH PRIOR INCONSISTENT STATEMENTS
WITHOUT CONDUCTING A HEARING OUTSIDE
THE PRESENCE OF THE JURY, PURSUANT TO
N.J.R.E. 104, THUS DEPRIVING DEFENDANT OF
HIS CONSTITUTIONAL RIGHT TO A FAIR
TRIAL. (NOT RAISED BELOW).
POINT SIX
AS A RESULT OF THE CUMULATIVE EFFECT OF
THE ERRORS RAISED IN POINTS ONE
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THROUGH FIVE, SUPRA, DEFENDANT WAS
DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO
A FAIR TRIAL. (NOT RAISED BELOW).
POINT SEVEN
THE SENTENCE IMPOSED BY THE TRIAL
COURT CONSTITUTED AN ABUSE OF
DISCRETION BECAUSE IT IMPOSED A
DISCRETIONARY EXTENDED TERM AFTER THE
STATE FILED AN INVALID NOTICE AND BY
IMPOSING A SENTENCE THAT WAS
EXCESSIVE, REQUIRING DEFENDANT'S
SENTENCE BE VACATED AND THE CASE
REMANDED TO THE TRIAL COURT FOR A NEW
SENTENCE HEARING.
A. The State's Notice Of Motion For An
Extended Term Violated [Rule] 3:21-4e.
B. The Sentence Imposed By The Trial
Court Was Excessive.
We find sufficient merit in defendant's challenge to various aspects of the jury
charge to require reversal of defendant's convictions.
I.
We glean the following facts from the seven-day trial conducted on
various dates in October 2018, during which the State produced twelve
witnesses, consisting of civilian and law enforcement witnesses, including
crime scene investigators, a ballistics expert, and a medical examiner.
A-4177-18
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At about 7:00 p.m. on September 21, 2016, a group of individuals
gathered to watch a fistfight on Zinc Street, an alleyway between Second and
Third Streets in Florence Township. At some point, gunshots rang out, and the
victim, Ronald Walker, was shot. Florence Township police responded to calls
for assistance, as did paramedics who treated Walker at the scene and
transported him to the hospital, where he died from injuries sustained from
three gunshot wounds. The medical examiner recovered two bullets and
several bullet fragments from Walker's body and identified "two exit wounds."
Law enforcement officers also recovered numerous shell casings near the
crime scene.
Police interviewed several people on the night of the shooting.
However, the people interviewed were generally uncooperative and would not
tell the police what they saw, or who was involved in the shooting.
Nonetheless, the investigation uncovered evidence pointing to defendant as the
shooter and, at trial, the State produced three witnesses who testified they had
observed defendant at the fight in possession of a gun – Rasheed Johnson, the
victim's coworker and friend; Dontae Walker, the victim's brother; and Najhee
Cox, the victim's friend.
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Johnson testified that on the day of the fight, he had worked with the
victim and his brother, Dontae.1 After work, they spent time together at an
apartment near West Second Street before walking toward West Third Street,
through the alleyway, where a fight broke out between two men. As the fight
was ending, Johnson observed defendant in the alleyway, standing near a
brown fence. Johnson had known defendant for a long time from growing up
in Florence Township. Johnson testified that defendant was wearing black
clothing and holding a black gun which he pointed and fired in the direction of
the victim. However, on cross-examination, Johnson acknowledged that he did
not know if defendant had pointed and fired the gun "at any particular person."
Johnson stated that "it could have been anyone that got hit."
Johnson testified that when he heard gunshots, he and everyone he was
with started running toward West Second Street. According to Johnson, there
were about ten to fifteen people running. Once he saw the victim collapse near
a gate, he stopped running and stayed in the area until the victim was
transported to the hospital. Nonetheless, Johnson never spoke to the police
about the shooting until about two months later, when he was arrested on an
1
We refer to Dontae by his first name to avoid confusion because he shares a
surname with the victim.
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outstanding warrant. During the interview, Johnson told police what he saw
and identified defendant from a photograph shown to him by the police.
Johnson believed that giving a statement about the shooting facilitated his
release from custody.
Dontae corroborated Johnson's testimony about working on the day of
the shooting and hanging out after work with a group of friends and family.
Dontae testified that after work, a "beef" developed between his brother's
friend and "Nas and his cousin." However, no fight occurred at that time
because Nas's group left. Later, when Nas's group returned, Dontae and his
friends met up with some people and walked to the alleyway to watch the fight
along with his brother. Dontae said there were two people fighting but
everyone "just scattered" when gunshots were fired. While Dontae was
running towards his house, he encountered his cousin Lameek, who told him
his brother had been shot. When Dontae turned back and returned to the scene
to find his brother, he saw a person holding a silver gun in his left hand and
pointing it towards the ground. Dontae had never seen the man with the gun
before that night and described him as fat, with a chubby face, a short haircut,
and a beard. Although Dontae testified that he did not notice what the man
was wearing, on cross-examination, he admitted that he had told police the
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man holding the gun was wearing a grey hoodie and either grey sweatpants or
blue jeans, but he was not sure.
After the shooting, Dontae described the person he had seen with the gun
to "a couple people" who showed him some photographs. As a result, Dontae
was able to identify the man with the gun as someone who went by the street
name "Black." In court, Dontae identified defendant as Black, the man he saw
holding a gun. Dontae testified that he did not see defendant shoot the gun,
nor did he speak to defendant. According to Dontae, after people pulled
defendant away from the scene, Dontae ran towards his brother, whom he saw
lying face down in the street. Dontae "flipped" his brother over and waited
until the ambulance arrived. Dontae did not initially cooperate with the police
because "they don't do nothing," but later spoke to the police when his mother
told him to do so. At trial, Dontae also confirmed that his criminal history
included a felony conviction for a "[g]un charge" for which he served prison
time.
Cox testified that on the date of the shooting, he was living on West
Second Street in Florence Township and had hung out with friends on West
Third Street after work. He observed a car pull up and someone jump out of
the car and engage in an argument with another person. The person then got
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back into the car and left, at which time Cox and his friends went to Zinc
Street to relax, drink, and talk about work. Soon thereafter, a group of older
men from Beverly arrived, and a fight broke out between Cox's friend Jahques
and another person. Cox said that additional fighting broke out between some
spectators, and, in response, his friend Daquan cocked a tan-colored airsoft
gun.
Upon hearing gunshots, Cox ran with the victim in the direction of
Second Street. Cox said he was close friends with the victim, who was "like a
brother" to him. Cox testified he saw a heavyset man with a mini-Afro fire a
gun twice – the first time was in the air and the second time the bullet
ricocheted off the concrete. When Cox realized that the victim had fallen to
the ground, with "blood gushing out of his mouth," he turned around and
attempted to help him. Cox testified that he and others held the victim's head
up and put pressure on the wound until the ambulance arrived.
Cox described the shooter as wearing a white T-shirt. Although Cox
knew the shooter as a person named Anthony, who went by the street name
Black, Cox did not identify defendant as the shooter at trial and testified that
he did not see the shooter in the courtroom. When Cox denied any recollection
of giving the police the name of the person he saw shooting a gun, the
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prosecutor used his prior statement to police to refresh his recollection that he
had told the police the shooter was a person named Black from Beverly and
was related to someone named Nas. Cox was adamant, however, that he never
recognized the shooter in either of the two photographs he was shown by
police. On cross-examination, Cox acknowledged that detectives had
questioned him about the shooting while he was in jail on a charge of criminal
mischief. Although he denied that the detectives promised to get him out of
jail if he spoke to them, he admitted that the detectives said they would speak
to the judge for him.
Defendant's aunt, Laura Taylor, also testified for the State. She resided
on West Third Street in Florence Township and confirmed that defendant went
by the street name "Black." When she heard the gunfire and screaming, she
went out onto her front porch and observed about fifteen to twenty people,
including defendant, running out of the alleyway. Taylor was one of several
people who called 9-1-1 to report the shooting. After making the call, Taylor
walked into the alleyway and observed the victim laying on the ground,
bleeding. At the time, the victim was being attended by his cousin Lameek
and Taylor's niece, Michelle. When questioned by police later that night,
Taylor lied, telling them that she had not seen defendant on the night of the
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shooting. At trial, she testified that she had lied in order "to protect" her
nephew.
The State also presented testimony from Cynthia Paton, who lived in a
second-floor apartment on West Third Street, near the shooting. Paton
testified that after hearing gunshots, she looked out her window. She observed
approximately seven to ten people running from the scene and saw two hands
and two guns, one black and one silver, "over [a] stockade fence." However,
Paton did not know if the hands she saw belonged to one person or two
different people. Paton stated it appeared as if one gun was being fired in the
air because she saw a flash. Paton also recalled that one or both guns were
pointed in the direction of the victim's home, which was on Second Street.
Additionally, Paton testified that she had observed "a black man," dressed "all
in black [clothing,]" run by her porch and discard what she believed to be a
weapon in a trash bin. The man asked Paton if she had seen anything, and she
responded that she had not. On cross-examination, Paton acknowledged that
she did not know whether the man who ran past her was the same person she
had seen holding a gun in the air. Paton also recalled seeing a shirtless black
man who also might have had a gun.
A-4177-18
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Ballistics evidence showed that multiple weapons had been fired. Law
enforcement officers recovered from the scene: (1) two .9mm blank rounds
that had been discharged from the same gun; (2) three .9mm Luger shell
casings that had been discharged from the same gun; and (3) a bullet
discharged from a .38 caliber weapon, which may have come from the same
weapon used to kill the victim because the markings on the bullet matched
those on a bullet recovered from the victim's body. In addition, officers found
a .40 caliber semiautomatic pistol, with eight bullets in the magazine and one
in the chamber, in a recycling bin on Third Street, at the end of Zinc Street.
However, that weapon was not connected with any shell casings or bullets
found at the scene.
In summation, the prosecutor argued that there were three weapons at
the scene: (1) the .40 caliber weapon found in the recycling bin; (2) the gun
that shot the blank rounds; and (3) the .38 caliber weapon used to kill the
victim. The prosecutor argued that the .9mm shell casings were related to the
.38 caliber weapon used to kill the victim. In that regard, although the
ballistics expert testified that bullets could not be matched to casings, he also
testified that the .38 caliber bullet found at the scene could have been fired
from a .9mm Luger cartridge.
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At the close of the State's case, defendant moved for judgment of
acquittal, see R. 3:18-1, but the motion was denied. Defendant did not testify
or produce any witnesses. Following the return of the verdict, on the State's
motion, the trial judge dismissed a fourth count charging second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(b)(1), which had been
bifurcated for purposes of trial.
Post-trial, the State moved for an extended term sentence under N.J.S.A.
2C:44-3(a), which was granted, and defendant moved for a new trial, see R.
3:20-1, which was denied. The judge sentenced defendant to an extended term
of fifty years in prison, subject to NERA, on the aggravated manslaughter
conviction, and a concurrent term of seven years in prison, with forty-two
months of parole ineligibility, on the unlawful possession of a weapon
conviction. The remaining count was merged into the aggravated
manslaughter conviction. On December 21, 2018, the judge entered a
memorializing judgment of conviction and this appeal followed.
II.
On appeal, defendant's arguments focus mainly on the jury charge.
Defendant argues he was deprived of a fair trial due to several errors in the
jury charge and the judge's response to a jury question. Specifically, defendant
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argues the judge erred by: (1) failing to adequately instruct the jur y on what
was and was not evidence, resulting in the jury considering prejudicial
information that was not in evidence; (2) failing to give a charge on police
photographs; (3) giving a one-sided summary of eyewitness testimony,
exposing bias in favor of the State; (4) responding to a jury question asking
whether defendant had a criminal record in a manner that contradicted the
court's earlier instruction regarding consideration of Dontae's prior conviction;
and (5) failing to give the model jury charge on prior contradictory statements.
Because defendant did not object to the jury charge or the response to
the jury question in the trial court, we review for plain error and reverse only if
the error was "clearly capable of producing an unjust result." State v.
McKinney, 223 N.J. 475, 494 (2015) (quoting R. 2:10-2).
In 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)).]
Ordinarily, "[d]efendant is required to challenge instructions at the time
of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div. 2003) (citing R.
A-4177-18
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1:7-2). "Where there is a failure to object, it may be presumed that the
instructions were adequate." Id. at 134-35 (citing State v. Macon, 57 N.J. 325,
333 (1971)). "The absence of an objection to a charge is also indicative that
trial counsel perceived no prejudice would result." Id. at 135.
It is axiomatic that "[a]n essential ingredient of a fair trial is that a jury
receive adequate and understandable instructions." State v. Afanador, 151 N.J.
41, 54 (1997); see also State v. Green, 86 N.J. 281, 287 (1981) ("Appropriate
and proper jury instructions are essential for a fair trial."). "The [trial] judge
'should explain to the jury in an understandable fashion its function in relation
to the legal issues involved.'" McKinney, 223 N.J. at 495 (quoting Green, 86
N.J. at 287). "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.'" Ibid. (quoting Green, 86 N.J. at
287-88).
When reviewing an alleged error in the jury charge, "portions of a
charge alleged to be erroneous cannot be dealt with in isolation but the charge
should be examined as a whole to determine its overall effect," State v.
Wilbely, 63 N.J. 420, 422 (1973), and "to determine whether the challenged
language was misleading or ambiguous," State v. Nelson, 173 N.J. 417, 447
A-4177-18
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(2002). Further, in "assessing the soundness of a jury instruction," a reviewing
court considers how ordinary jurors would "'understand the instructions as a
whole,'" based upon "'the evidence before them, and the circumstances of the
trial.'" State v. Savage, 172 N.J. 374, 387 (2002) (quoting Crego v. Carp, 295
N.J. Super. 565, 573 (App. Div. 1996)).
To be sure, the effect of any error "must be evaluated in light 'of the
overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010)
(quoting State v. Chapland, 187 N.J. 275, 289 (2006)). "Nevertheless, because
clear and correct jury instructions are fundamental to a fair trial, erroneous
instructions in a criminal case are 'poor candidates for rehabilitation under the
plain error theory.'" Adams, 194 N.J. at 207 (quoting State v. Jordan, 147 N.J.
409, 422 (1997)). Indeed, "'erroneous instructions on material points are
presumed to' possess the capacity to unfairly prejudice the defendant." State v.
Bunch, 180 N.J. 534, 542 (2004) (quoting Nelson, 173 N.J. at 446).
"'[B]ecause erroneous instructions on material issues are presumed to be
reversible error,' our care in reviewing jury instructions is deep -seated and
meticulous . . . ." State v. Lykes, 192 N.J. 519, 537 (2007) (first alteration in
original) (citation omitted) (quoting State v. Lopez, 187 N.J. 91, 101 (2006)).
A-4177-18
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These same standards apply to our review of a trial court's response to a jury
question. Ibid."We have recognized that although an error or series of errors might not
individually amount to plain error, in combination they can cast sufficient
doubt upon the verdict to warrant reversal." State v. Reddish, 181 N.J. 553,
615 (2004). This is such a case.
First, defendant argues the judge erred by omitting from the final
instructions to the jury the definition of "evidence" that could be considered in
judging the facts of the case contained in the model jury charge, which
provides in pertinent part:
Now I will move on to the second part of the
instructions and discuss the evidence that you may
consider in judging the facts of the case. When I use
the term "evidence" I mean the testimony you have
heard and seen from this witness box, any stipulations
and the exhibits that have been admitted into
evidence.
[Model Jury Charges (Criminal), "Final Charge" (rev.
May 12, 2014).]
To support his argument that he was prejudiced by the omission,
defendant points to the following question submitted by the jury during
deliberations: "Can we ask if [defendant] has a criminal record? If so, we are
asking." Defendant asserts that the question indicates "[t]he jury was clearly
A-4177-18
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considering 'facts' not in evidence" and was ignoring the judge's instruction
that it should draw no inference of guilt from defendant's failure to testify.
Further, defendant contends the judge erred in his response to the jury question
because after discussing the question with counsel, the judge instructed the
jurors that "whether a person does or does not have a criminal record may play
no part in a jury's determination of guilt or non-guilt and may play no part or
be considered by you in your deliberations. It simply isn't relevant to the
case." According to defendant, the response effectively told the jury that
Dontae's criminal record was irrelevant to the jury's deliberations and
contradicted the court's previous instruction that Dontae's prior conviction may
be considered when assessing his credibility.
Although the State concedes the judge failed to define evidence in the
final charge, it asserts that the judge's reference to evidence on separate
occasions in various instructions throughout the trial cured the error. To be
sure, we consider the charge as a whole. However, contrary to the State's
argument, instructing the jurors on their obligation to weigh and assess the
"evidence," or instructing the jurors that certain information, such as the
indictment and comments made by the court and counsel, was not evidence,
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without affirmatively defining what constituted "evidence," did not suffice to
cure the error caused by the omission.2
The error was compounded by the judge's response to the jury question
inquiring about defendant's criminal record. The question itself was indicative
of the jury's speculation about matters not in evidence and underscored the
prejudice caused by the judge's error in failing to affirmatively define the
"evidence" the jury was permitted to consider. The response to the jury
question was problematic because it contradicted the judge's prior instruction,
which correctly told the jury that it could consider Dontae's prior conviction
when assessing his credibility. The contradictory response was particularly
damaging and cannot be excused on the basis of other overwhelming evidence
2
The closest the judge came to defining "evidence" was in the charge on
identification, when the judge instructed the jury:
[Y]ou may consider the factors the [c]ourt has just
discussed with you and assess all of the circumstances
of the case, including all of the testimony and
documentary evidence in determining whether a
particular identification made by a witness is accurate
and is, thus, worthy of your consideration in deciding
whether the State has met its burden to prove
identification beyond a reasonable doubt.
[(emphasis added).]
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of guilt in light of the circumstantial nature of the State's case, which depended
heavily upon the credibility of the State's witnesses, including Dontae.
Defendant further contends that the judge erred by not giving the model
jury charge on police photographs, despite repeated references to defendant's
photograph being shown to witnesses by law enforcement. He asserts that if
the judge had read the model charge, "[t]his could have avoided the prejudice
of the jury considering defendant's prior record."
The record reflects that law enforcement showed photographs to two
witnesses – Johnson, who identified defendant from a photograph, and Cox,
who did not. The photograph that Johnson identified as defendant was
admitted into evidence upon the State's application. The photographs shown to
Cox were not shown to Cox at trial nor were they admitted into evidence.
Defendant did not request a charge on police photos, nor was one given by the
judge. However, in the final charge, on two occasions, the judge referenced
Johnson having identified defendant from a photograph shown to him by the
police.
The model jury charge on police photos states:
There are in evidence photographs that were
used to identify the defendant in this case.
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With reference to the photographs submitted
into evidence, you will notice that many or all of the
photographs appeared to have been taken by a law
enforcement agency, or some other government entity.
You are not to consider the fact that the agency
obtained a photograph of the defendant as prejudicing
him/her in any way. The photographs are not
evidence that the defendant has ever been arrested or
convicted of any crime. Such photographs come into
the hands of law enforcement from a variety of
sources, including but not limited to driver's license
applications, passports, ABC identification cards,
various forms of government employment, private
employment requiring state regulation, including but
not limited to casino license applications, security
guard applications, etc., or from a variety of other
sources totally unconnected with criminal activity.
[Model Jury Charges (Criminal), "Identity – Police
Photos" (rev. Jan. 6, 1992).]
The model charge is intended to prevent jurors from considering photos
used by law enforcement in identification procedures as evidence of a
defendant's criminal history. In State v. Swint, 364 N.J. Super. 236, 239-43
(App. Div. 2003), we found prejudicial error in the trial judge's failure to issue
a charge on police photos where defense counsel requested such a charge and
jury questions about the photos indicated the jury's consideration of whether
the defendant had a criminal history. In reversing the defendant's convictions
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for attempted murder, robbery, aggravated assault, and related weapons
offenses, we stated:
Here, the jury was obviously concerned about
the "criteria" used to select the photos shown to the
victims. The legal concern is that police photos
suggest the inadmissible postulate that defendant had
a criminal history, may have been suspect for that
reason, and the jury may then find him guilty on the
same basis. The Model Charge is designed to
neutralize that prejudice.
In a case such as this where the sole issue was
identification and that, in turn, was influenced by
whether defendant's alibi was credible, we cannot say
the error was harmless.
[Id. at 243 (citations omitted).]
Here, because identification was a material issue in the case that was, in
turn, influenced by witness credibility, the judge clearly erred by not issuing a
charge on police photos. Moreover, the error was prejudicial. Without the
charge, the jury was left to speculate about defendant's criminal history, which
it clearly did as evidenced by its question whether defendant had a criminal
record.
Defendant also contends that the judge gave an erroneous and one-sided
summary of the eyewitness testimony in the identification charge. Defendant
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asserts the error exposed the judge's bias in favor of the prosecution and
deprived him of his constitutional right to a fair trial.
"[T]he trial judge has the right, and oftentimes the duty, to review the
testimony and comment upon it, so long as he clearly leaves to the jury . . . the
ultimate determination of the facts and the rendering of a just and true verdict
on the facts as it finds them." State v. Mayberry, 52 N.J. 413, 439 (1968);
accord Reddish, 181 N.J. at 612; State v. Ramseur, 106 N.J. 123, 280 (1987).
"But when a court delves into the facts, 'any comment must be designed to
avoid unduly influencing or otherwise invading the province of the jury. '"
Reddish, 181 N.J. at 612-13 (quoting State v. Biegenwald, 106 N.J. 13, 44
(1987)); see, e.g., State v. Concepcion, 111 N.J. 373, 381 (1988) ("By
selectively interpreting its charge to the jury in relation to one aspect only of
the critical events, the trial court may have misled the jury and influenced it to
return a guilty verdict based solely on that conduct.").
Thus, with respect to the relative strengths and
weaknesses of the evidence . . . such arguments more
properly emanate from counsel. If, however, a court
finds it necessary to comment on the strengths of one
party's case, it must refer to the opponent's
counterarguments; conversely, if weaknesses are
discussed, the countervailing explanations must be
mentioned.
[Reddish, 181 N.J. at 613 (citations omitted).]
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24
See also State v. Robinson, 165 N.J. 32, 45 (2000) ("[I]f the court refers to the
State's evidence in any significant way, it must also refer to the defendant's
contrary contentions.").
"The trial judge is the symbol of experience, wisdom and impartiality to
the jury and, as such, must take great care that an expression of opinion on the
evidence should not be given so as to mislead the jury." State v. Zwillman,
112 N.J. Super. 6, 20-21 (App. Div. 1970). The judge "must not throw his [or
her] judicial weight on one side or the other." Id. at 21; see also State v.
Guido, 40 N.J. 191, 208 (1963) ("The trial judge is an imposing figure. To the
jurors he is a symbol of experience, wisdom, and impartiality. If he so
intervenes as to suggest disbelief, the impact upon the jurors may be critical.").
Here, in giving the identification charge, the judge summarized the
identification testimony of three witnesses as follows:
The State has presented the testimony of
witnesses who identified the defendant in court.
Dontae Walker, who testified that he did not
know the defendant prior to the shooting, but
identified him in court.
Rasheed Johnson, who testified that he knew the
defendant since he was five or six years old and that
he saw the defendant fire the gun and that he
A-4177-18
25
identified the defendant in a photograph to police and
identified him here in court.
And Najhee Cox, who identified him in a
statement to police as Black but did not identify him
in court.
Later in the identification charge, the judge also stated:
You may consider the confidence and accuracy
of the witness. You heard testimony that Rasheed
Johnson made a statement at the time he identified the
defendant from a photograph concerning his level of
certainty that the person in the photograph he selected
is, in fact, the person who committed the crime.
Defendant asserts the judge failed to mention that Dontae did not see
defendant shoot a gun and testified that defendant was holding a silver gun,
while Johnson testified that defendant was holding a black gun; inaccurately
implied that only one gun was fired when the evidence showed that multiple
guns had been fired; failed to mention that Johnson could not tell where
defendant was pointing the gun and did not see defendant shoot the victim;
told the jury that Johnson had "identified the defendant from a photograph" as
"the person who committed the crime" when all Johnson testified to was that
he identified defendant in a photograph shown to him by the police; and gave a
summary of Cox's testimony that was "simply not true."
A-4177-18
26
The summaries were problematic in certain respects. The judge's
summary of Dontae's testimony was accurate but incomplete because, as noted
by defendant, it did not point to the weaknesses in Dontae's identification.
Nevertheless, the incomplete summary of his testimony was not so prejudicial
as to constitute plain error. See Robinson, 165 N.J. at 43 (finding no plain
error in the trial court's identification charge, which failed to point out
weaknesses in the State's identification evidence).
On the other hand, the judge's summaries of Johnson's and Cox's
testimony were both inaccurate and incomplete. Contrary to the judge's
instruction, Johnson never identified defendant "from a photograph" as "the
person who committed the crime."3 Instead, Johnson testified that he had
identified defendant in a photograph shown to him by the police. The
prosecutor never asked if he identified defendant to the police as the person he
saw shooting a gun, let alone "the person who committed the crime."
Moreover, although Johnson testified that he saw defendant shoot a gun
in the alleyway, he conceded that he could not say for sure whether defendant
3
This language appears in Model Jury Charges (Criminal), "Identification:
In-Court and Out-of-Court Identifications" (rev. May 18, 2020), which refers
to witnesses identifying the defendant "as the person who committed" the
offense. However, that language was inapplicable to the facts of this case,
where no witness testified to having seen defendant shoot the victim.
A-4177-18
27
was pointing the gun at any particular person. Although the jury was entitled
to infer from Johnson's testimony that defendant had shot and killed the victim
and that he was "the person who committed the crime," the judge erred by
making that inference on the jury's behalf. See Reddish, 181 N.J. at 613-16(finding the jury charge improper because of the "instruction's one-sided
picture of the evidence" and the trial court's failure "to point to evidence and
arguments that favored defendant" which "left the jury with an impermissibly
unbalanced commentary on the evidence").
Similarly, contrary to the judge's summary, Cox never identified
defendant as Black, nor did he identify defendant in his statement to the police.
Rather, Cox testified that the person he observed shooting a gun was a person
named Anthony, who went by the street name Black. He also acknowledged
telling the police that the person he observed shooting a gun was a person
named Black, from Beverly, who was related to a person named Nas.
However, Cox also testified that he never identified anyone from the photos
the police had shown him, and he did not see the shooter – the person he knew
as Anthony a/k/a Black – in the courtroom.
Again, although the jury was entitled to infer from Cox's testimony that
defendant, whom other witnesses had testified went by the street name Black,
A-4177-18
28
was the person Cox had observed shooting a gun, the judge erred by making
that inference on the jury's behalf, particularly since the jury could also have
inferred from Cox's failure to identify defendant in the courtroom that
defendant was not the person whom Cox had observed shooting a gun. Thus,
through his mischaracterization of Cox's testimony, the judge erred in making
an inference favorable to the prosecution and prejudicial to the defense. See
id. at 615 ("The court had an independent duty to ensure that the jurors
received an accurate instruction on the relevant law and, when necessary, a
balanced assessment of the facts to allow them to apply that law. In failing to
fulfill that obligation, the court erred.").
At trial, defendant did not object to the judge's summaries of Dontae's or
Johnson's testimony. However, defendant objected to the judge's proposed
instruction that Cox identified defendant as "Black from Beverly," maintaining
that Cox had "never said that's Black from Beverly when . . . talking about
[defendant,]" and never identified defendant in court nor in any photos shown
to him by the police. The judge overruled the objection.
Notably, in summation, defense counsel addressed the weaknesses in the
State's case. Additionally, in the final charge, the judge instructed the jurors
that their understanding of the evidence was controlling and comments on the
A-4177-18
29
evidence made by the court and counsel were not "binding" on the jury and
were to be "disregard[ed]" in the event of a conflict. See State v. Rudd, 49
N.J. 310, 314 (1967) ("The trial judge had the right to comment on the
evidence so long as he clearly and fairly" told the jury it "was not bound by his
comment and could properly disregard it if it [saw] fit."). The jury appears to
have heeded the warning because during deliberations, the jury requested and
received read backs of the testimony of Dontae, Johnson, and Cox.
If the judge's incomplete and, in some cases, inaccurate characterizations
of the identification testimony were the only error, we might find no basis for
appellate intervention. However, "[t]he combined impact of these errors does
not permit us to conclude that the cumulative error was harmless beyond a
reasonable doubt, therefore, a new trial is required." State v. Weaver, 219 N.J.
131, 162 (2014). Given the stature of the judge, the necessity for correct jury
instructions, the circumstantial nature of the State's case, and the importance of
the identification testimony and witness credibility in general, the errors, when
considered cumulatively with the other errors in the jury charge to which we
have adverted, warrant reversal of defendant's convictions. See State v.
Orecchio, 16 N.J. 125, 129 (1954) ("Where . . . the legal errors are of such
magnitude as to prejudice the defendant's rights or, in their aggregate have
A-4177-18
30
rendered the trial unfair, our fundamental constitutional concepts dictate the
granting of a new trial before an impartial jury.").
We apply a similar analysis to defendant's contention that the judge
committed reversible error when he failed to give the model jury charge on
witnesses' prior contradictory statements, and failed to identify the five State
witnesses unaffiliated with law enforcement who gave prior inconsistent
statements, namely, Taylor, Paton, Johnson, Cox, and Dontae. See Model Jury
Charges (Criminal), "Prior Contradictory Statements of Witnesses (Not
Defendant)" (May 23, 1994).
It is undisputed that the judge did not give the model jury charge on
prior contradictory statements. However, the judge instructed the jury on
assessing witness credibility, including considering prior inconsistent
statements, as follows:
How do you evaluate the testimony of
witnesses? When considering the testimony of
witnesses the [c]ourt suggests to you that you may
wish to take into account the following.
The interest or lack of interest that any witness
has in the outcome of the case; the bias or the
prejudice of a witness, if any; the witness' mental
capacity for knowing that about which he or she
speaks. You may consider any prior inconsistent
statements or any discrepancies in the testimony of a
witness; the reasonableness or unreasonableness of the
A-4177-18
31
testimony; the manner in which the witness testified
on the stand; the demeanor of the witness; the witness'
willingness or reluctance to answer questions and you
may consider the inherent believability or lack thereof
of the testimony presented.
In weighing the effect of a discrepancy you may
consider whether it relates to a matter of importance
or to a matter of unimportant detail. You may
consider whether it results from innocent error or
willful falsehood.
If you believe that any witness testified falsely
concerning any material fact and did so with a purpose
to deceive you, you may give to that witness'
testimony whatever weight you deem it is entitled.
You may, in your discretion, disregard all of the
testimony of that witness or you may choose to accept
some portion of the testimony and reject other parts.
You may also consider any explanation that a
witness may offer to explain a discrepancy in the
testimony offered. And you may, of course, accept all
of the testimony of any witness.
In so many words the [c]ourt has just said to you
that an inconsistent statement may be used as proof of
the truth of the facts stated therein.
Now what does that mean? That's a mind
bender. It's best explained by way of a rather simple
example.
Let's suppose there's a driver of a vehicle. He's
in front of the courthouse here going up Rancocas
Road toward the intersection with High Street, which
is controlled by a traffic light. He's involved in a
collision. A police officer arrives on the scene within
A-4177-18
32
a minute of the accident. And he says to the police
officer, officer, for me as I entered the intersection the
light was red.
Four months later he comes into this courtroom,
sits on this witness stand and looks all of you in the
eye and he says for me as I entered the intersection the
light was green.
We now have inconsistent statements. The one
to the police officer that it was red; now here in court
it's green. What are your choices when you're faced
with inconsistent statements? They are three.
In the first instance you may believe that the
statement given to the police officer within a minute
of the accident before there was time for fabrication
represents the truth and you will find that the light was
red.
The second possibility is that the witness has
given you an explanation for his confusion at the time
when he spoke to the police officer and you accept
that explanation. You may find then that the light was
green.
The third possibility is that, at least based on
that witness' testimony, you find it so unreliable that
you can make no finding as to the color of the light.
They are your choices if you are faced with
inconsistent statements.
In essence, the charge combined elements of Model Jury Charges
(Criminal), "Criminal Final Charge" (rev. May 12, 2014) (addressing the
credibility of witnesses), Model Jury Charges (Criminal), "False in One –
A-4177-18
33
False in All" (rev. Jan. 14, 2013), and Model Jury Charges (Criminal), "Prior
Contradictory Statements of Witnesses (Not Defendant)" (May 23, 1994).
Defendant did not object to the charge.
In State v. Hammond, 338 N.J. Super. 330, 339 (App. Div. 2001), we
addressed a trial court's failure to give the model charge on "prior inconsistent
statements made by the State's two key eyewitnesses." Prior to trial, the two
witnesses had given statements to the police "that they knew nothing about the
homicide." Id. at 340. At trial, however, "both witnesses recanted these initial
statements . . . and testified that they in fact had witnessed the defendant fire at
least two shots into the victim." Id. at 340-41. Over defense counsel's
objection, the trial court did not issue the model jury charge on prior
contradictory statements. Id. at 339-40. Instead, the court provided the jury
with the "standard instructions regarding witness credibility" and did not
specify that the jury "could use the prior inconsistent statements to assess the
witnesses' credibility and as substantive evidence." Id. at 341. Nevertheless,
we found that, as a whole, the jury charge was adequate to enable the jury to
evaluate and make determinations regarding the key witnesses' prior
inconsistent statements, particularly in light of defense counsel's "vigorou s
arguments" on credibility, and the fact that the witnesses' prior inconsistent
A-4177-18
34
statements were "blanket denial[s] of any knowledge of the crime, rather than
an alternative version of the crime scenario." Id. at 341-43.
Summarizing our holding, we stated:
[T]he out-of-court prior inconsistent statements that
are before us here lack any significant substantive
exculpatory value that is pertinent to the jury
instructions whose omission defendant challenges.
The inconsistency arises from the witnesses' total
disavowal to the authorities of any knowledge of an
incident, in contrast to their testimony at trial in which
they recounted the incident in detail. In these
particular circumstances, because the import of the
out-of-court prior inconsistent statements went solely
to the issue of credibility and they had no substantive
exculpatory value of their own that is relevant to the
jury instruction on prior inconsistent statements of
witnesses, such an instruction was not needed to
protect defendant's rights. On the contrary, we are
satisfied that the jury, as instructed on credibility by
the court, and as informed by its common sense and
relevant life experience, was fully qualified to
determine the credibility or lack of credibility of both
eyewitness versions. The jury was able to do this with
no less capacity than if it had been instructed that it
might consider as substantive evidence the witnesses'
original denials of any knowledge of the crime. We
thus conclude that there is no merit to defendant's
contention that the trial court erred in its instructions
to the jury.
[Id. at 343.]
We cautioned, however, that we were "not creat[ing] a general rule that the
Model Charge on inconsistent statements should not be used. To the contrary,
A-4177-18
35
that instruction should as a rule be given whenever appropriate, and the present
facts merely illumine a limited exception to the rule in a particular factual
context." Id. at 343-44.
In contrast, in State v. Allen, 308 N.J. Super. 421, 427-28, 431-32 (App.
Div. 1998), we found cumulative and plain error in the jury charge, warranting
reversal of the defendant's drug related convictions, where the trial court did
not give the full charge on credibility or a charge on prior contradictory
statements or deliberation and "the issue of credibility" was "the keystone to
the defense." We noted "[t]he court [was] obligated to inform the jury of the
criteria necessary for jurors to judge the credibility of the witnesses who
testify before them" because even if "the inconsistencies are of limited
probative value, . . . they still raise issues as to credibility which must be
considered by a jury in determining the ultimate issue in the case." Id. at 428-
29. We concluded that because "[t]he charges complained of [were] part of the
'standard' charge and absent a substantial basis should have been charged ," the
"failure to charge" constituted "plain error." Id. at 432 (citing R. 2:10-2).
Here, in Taylor's prior statement to the police, she denied that defendant
was present in the alleyway on the night the victim was killed. At trial,
however, she testified to seeing defendant run from the alleyway, thereby
A-4177-18
36
placing him at the scene of the crime. Thus, Taylor's prior inconsistent
statement was of the nature addressed in the model jury charge and had
significant substantive exculpatory value. On the other hand, the statements
given by other witnesses were not so clearly inconsistent with their trial
testimony or exculpatory for defendant. For example, Dontae's statement to
the police and his trial testimony were fuzzy about whether he had noticed the
shooter's clothing. Some witnesses' prior statements, like Johnson and Cox,
were merely given reluctantly, after their own arrests. Other witnesses, such
as Paton and Cox, merely had to have their recollections refreshed by their
prior statements to the police.
Common to all the witnesses' prior statements was that the prior
statements related to the witnesses' overall credibility, which was a key issue
in the case. For that reason, the judge should have given the entire model jury
charge on prior contradictory statements. The model charge is more thorough
than the charge given by the judge and requires the judge to identify the trial
witnesses who gave prior contradictory statements. However, as in Hammond,
defense counsel thoroughly addressed the credibility of witnesses in his
summation. Moreover, unlike Hammond, the judge gave a charge that drew,
A-4177-18
37
in part, from the model charge on prior contradictory statements and there was
no objection to the judge's failure to issue the entire model charge.
Standing alone, we might not find plain error in the judge's failure to
give the entire model charge. However, in light of the previously discussed
errors in the jury charge, the failure to issue the model charge on prior
contradictory statements takes on greater significance and, when considered
cumulatively with the other errors, warrants reversal of defendant's
convictions. "When legal errors cumulatively render a trial unfair, the
Constitution requires a new trial." Weaver, 219 N.J. at 155. "This is a classic
case of several errors, none of which may have independently required a
reversal and new trial, but which in combination dictate a new trial." Id. at
162.
Based on our decision, we need not address defendant's remaining
arguments in any detail. Briefly, we reject defendant's argument that the judge
committed plain error by failing to give a causation charge that was tailored to
the facts of the case. The judge gave the model jury charge which courts are
instructed to use "[i]f causal relationship between conduct and result is not an
issue," as was the case here. See Model Jury Charges (Criminal), "Aggravated
Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22, 2004).
A-4177-18
38
We also reject defendant's contention raised for the first time on appeal
that the judge erred by allowing the State to impeach its own witnesses, Paton
and Cox, without conducting a N.J.R.E. 104 hearing outside the presence of
the jury. Contrary to defendant's argument, the State merely used Paton's and
Cox's prior statements to the police to refresh their respective recollections.
Therefore, no hearing was necessary. See State v. Carter, 91 N.J. 86, 122
(1982) ("Once a proper foundation has been laid, a witness may examine any
document to refresh his memory.").
Finally, notwithstanding the circumstantial nature of the State's case,
giving the State the benefit of all favorable inferences drawn from the
evidence, the judge properly denied defendant's motion for judgment of
acquittal, made at the end of the State's case and as part of his motion for a
new trial after the verdict. See State v. Lodzinski, 249 N.J. 116, 143-44 (2021)
(delineating standards governing motions for judgment of acquittal pursuant to
Rule 3:18-1 and Rule 3:18-2); see also State v. Dancyger, 29 N.J. 76, 84
(1959) (stating that criminal conviction may be based solely upon
circumstantial evidence).
A-4177-18
39
In sum, defendant's convictions are reversed, and the matter is remanded
for a new trial. Given our disposition, we do not need to address defendant's
sentencing arguments.
Reversed and remanded for a new trial. We do not retain jurisdiction.
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40