STATE OF NEW JERSEY v. WILLIAM ISAKSEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4238-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM ISAKSEN,

Defendant-Appellant.

_______________________________________

January 14, 2013

Submitted December 11, 2012 Decided

Before Judges Yannotti and Harris.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-0693.

Joseph E. Krakora, Public Defender, attorney for appellant (William B. Smith, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant William Isaksen appeals from a judgment of conviction dated January 31, 2011, and challenges his convictions of conspiracy to commit a theft by unlawful taking and burglary. For the reasons that follow, we reverse.

Defendant was charged along with co-defendant Justin Mercer (Mercer) with third-degree conspiracy to commit a theft by unlawful taking, N.J.S.A. 2C:5-2, N.J.S.A. 2C:20-3 (count one); second-degree burglary, N.J.S.A. 2C:18-2, N.J.S.A. 2C:2-6 (count two); and attempted theft by unlawful taking, N.J.S.A. 2C:5-1, N.J.S.A. 2C:20-3 (count three). Defendant was tried before a jury.

At the trial, the State presented evidence, which established that on February 4, 2009, E.K. was in his home on New Street in Middlesex Borough. E.K. was checking his electronic-mail messages when he observed a white Mitsubishi Eclipse enter the driveway at the neighboring house. E.K. observed two men exit the car.

Both men were smoking cigarettes. One man was wearing a white shirt, and the other was wearing a dark shirt. The man in the dark shirt walked to the front door of the house and knocked. No one answered. The man in the white shirt, who was later identified as defendant, stood near the car, smoking. He was "just kind of looking around."

According to E.K., the man in the dark shirt returned to the car. He spoke with defendant. They got back into the car and pulled out of the driveway. They parked the car in front of the house. The car's engine was running. The two men exited the car. Defendant re-entered the car and sat in the driver's seat. The other man walked down the driveway and went to the rear of the house. E.K. called the police.

Craig S. Young (Young), who was then Captain of the Middlesex Borough Police Department (MBPD), received a dispatch call of a possible burglary in progress on New Street. Young approached New Street from the rear. He saw that the rear window of a residence was wide open. Young arrived at the house along with other officers.

Sergeant Francis W. DeNick (DeNick) of the MBPD testified that he arrived at the house and observed a white-colored Mitsubishi parked in the street. Defendant was seated in the driver's seat. The motor of the car was running. DeNick pulled up to the vehicle, "head-on to it."

DeNick exited his vehicle and approached the Mitsubishi. Officer Mark Arancio (Arancio) also arrived and approached the car. DeNick told defendant to put his hands on the steering wheel and turn off the ignition. Defendant complied. DeNick then proceeded up the driveway to the rear of the house. He saw Young, who was positioned by the corner of the house. Young reported seeing an open window. DeNick walked up to the window, but he did not see anyone.

DeNick saw the screen from the window resting on the back deck. He opened the sliding glass door, entered the kitchen and announced, "Middlesex Police. Come out with your hands up." An individual, later identified as Mercer, emerged from the hallway of the residence and walked into the kitchen with his hands extended above his head. Mercer was told to face away from the officers, so he could be taken into custody. Mercer was handcuffed and removed from the house.

Detective Chad Corner (Corner) of the MBPD responded to the report of a burglary in progress on New Street. Corner testified that Arancio was standing beside the white car with defendant. Corner saw the other officers escort Mercer from the house. Defendant was arrested. Defendant and Mercer were transported to police headquarters.

Photos of the master bedroom depicted a digital camera, two cell phones and some jewelry on the floor. The door to a jewelry box had been broken off. Corner said that it appeared as if a flat-screen television had been pulled away from the wall. It also appeared that the top drawer of a bedside table had been opened and closed.

K.D. testified that she resided in the home on New Street with her husband and step-children. On February 4, 2009, K.D. went to the doctor and when she returned home, the police told her that someone had broken into the house. K.D. went with the police to the master bedroom.

K.D. said the doors had been taken off a tall jewelry armoire, and jewelry was lying on the floor. She recalled that there was a camera on the floor, as well as an old wireless telephone. She went to the living room, where a flat-screen television was affixed to the wall. It had been moved to the right, and looked like someone tried to take it off the wall.

Mercer testified. He had pled guilty earlier that year and said that on February 4, 2009, he and defendant had driven to Middlesex Borough "to get money" from his grandmother. Mercer did not stop there and went to his uncle's house. Mercer's uncle was not at home, so he drove around the block to New Street. Mercer admitted he committed the burglary at the house on New Street.

After Mercer was arrested, he was provided with his Miranda warnings.1 Mercer agreed to give a statement to the police. A recording of portions of the statement was played for the jury. Mercer testified that he did not recall what he said to the police. He was asked whether he told the police, "We came there for money." Mercer did not recall.

Mercer was asked if he told the police that defendant said, "If that's what you want to do, if you think we could do it." Mercer did not remember but said that he "might have" made that statement. Mercer was asked if he had a conversation with defendant in which defendant said, "Let's just do it." He said he did not remember. He also did not recall telling defendant, "Just stay here and look out." Nor did he recall defendant saying that there was "no point in us both going inside."

On cross-examination, Mercer testified that he did not have any discussion with anyone about his intention to burglarize the house on New Street. Mercer stated that it was his idea to commit the burglary, rather than an agreement with defendant. Mercer said that defendant did not have any involvement in the crime.

After the State rested its case, the trial judge advised defendant that he had the right not to testify. The judge told defendant that he had three options. Defendant could: (1) not testify and ask the court to refrain from commenting on his decision not to testify; (2) not testify and ask the court to instruct the jury on defendant's election of his right to remain silent; or (3) waive his right to remain silent and testify.

Defendant elected not to testify, and he asked the judge to instruct the jury on the exercise of his right to remain silent. However, in his instructions to the jury, the judge omitted those instructions. See Model Jury Charge (Criminal), "Defendant's Election Not to Testify" (2004). Defense counsel did not object to the charge, and the assistant prosecutor did not comment on the omission.

The jury found defendant guilty of conspiracy to commit burglary, theft or attempted theft (count one), and burglary (count two), but not guilty of attempted theft (count three). The trial judge thereafter sentenced defendant to three years of incarceration. This appeal followed.

Defendant raises the following argument for our consideration:

REVERSAL IS REQUIRED SINCE THE DEFENDANT TOLD THE JUDGE THAT HE WAS NOT GOING TO TESTIFY AND THAT HE WANTED THE JURY CHARGED THAT HE HAD A RIGHT NOT TO TESTIFY AND THAT THAT ELECTION COULD NOT BE HELD AGAINST HIM, AND THE JUDGE TOLD THE DEFENDANT THAT HE WOULD SO CHARGE BUT DID NOT CHARGE THE JURY AS HE TOLD DEFENDANT HE WOULD, THUS DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS. MOREOVER, DEFENSE COUNSEL WAS INEFFECTIVE IN NOT CATCHING THE JUDGE'S OMISSION (Not Raised Below).

Defendant contends that our decision in State v. Haley, 295 N.J. Super. 471 (App. Div. 1996), requires reversal of his conviction and remand for a new trial. In Haley, the defendant "acted as his own counsel, with the aid of standby counsel." Id. at 475. During the charge conference, the judge discussed the model jury charge relating to a defendant's election not to testify. Ibid. The defendant told the judge that he wanted the charge given to the jury; however, the judge omitted the charge from his instructions to the jury. Ibid.

We noted that "a 'defendant is entitled to have the jury instructed that it may not draw any inferences adverse to the defendant on the basis of his failure to testify.'" Ibid. (quoting State v. Bogus, 223 N.J. Super. 409, 422 (App. Div.), certif. denied, 111 N.J. 567 (1988)). We stated that a trial judge's failure to provide the instruction was an error of "constitutional proportion." Ibid. (citing Carter v. Kentucky, 450 U.S. 288, 302, 101 S. Ct. 1112, 1120, 67 L. Ed. 2d 241, 252 (1981)).

We additionally noted that the Court in Carter had observed that such instructions are particularly important in the context of the Fifth Amendment right against self-incrimination since many view this privilege as a refuge for wrongdoers. Ibid. (citing Carter, supra, 450 U.S. at 302, 101 S. Ct. at 1120, 67 L. Ed. 2d at 252)). We also pointed out that the Carter Court had noted that a public opinion survey indicated that many believe an accused is obligated to prove his or her innocence. Id. at 476 (citing Carter, supra, 450 U.S. at 303 n.21, 101 S. Ct. at 1120 n.21, 67 L. Ed. 2d at 252 n.21).

We also said that "'some constitutional errors may be harmless, but . . . others are of such constitutional magnitude that they are always reversible error.'" Id. at 477 (quoting State v. Fusco, 93 N.J. 578, 587 (1983)). We stated that the failure to instruct the jury that it may not draw an adverse inference from a defendant's exercise of the right to remain silent is such an error. Ibid.

We are convinced that Haley requires reversal here. As we held there, the trial judge's failure to instruct the jury on a defendant's exercise of the right not to testify is an error of constitutional magnitude which requires reversal of any resulting conviction.

The State argues, however, that a judge's failure to instruct the jury on a defendant's decision not to testify does not require reversal in all cases. The State contends that the inadvertent omission of the instruction should be reviewed under harmless error principles. In support of this argument, the State cites Lewis v. Pinchak, 348 F.3d 355 (3d Cir. 2003), cert. denied, 540 U.S. 1200, 124 S. Ct. 1461, 158 L. Ed. 2d 117 (2004).

In that case, Lewis had been convicted in the New Jersey Superior Court on two counts of first-degree attempted murder, two counts of second-degree aggravated assault, and other offenses. Id. at 356. He sought collateral relief in the state court, arguing that the trial judge failed to honor his request for an instruction telling the jury it could not draw an adverse inference from his decision not to testify. Ibid. The State courts denied relief, and Lewis filed a habeas corpus petition in the United States District Court. Ibid. The District Court denied the petition and Lewis appealed. Ibid.

The Court of Appeals noted that under Carter, a state court trial judge has a federal constitutional obligation, upon a proper request, to instruct the jury that a defendant has the right to elect not to testify and the defendant's failure to testify may not be used as an inference of guilt. Id. at 357. The Court of Appeals determined that the trial court's failure to give a Carter instruction when requested is not a structural defect in the trial process, which necessarily requires reversal of a conviction, but rather an error that occurred in the presentation of the case to the jury, that may be assessed under harmless error principles. Id. at 357, 358.

The Court of Appeals determined that the trial judge's failure to provide the Carter instruction was harmless beyond a reasonable doubt. Id. at 360. The Court indicated that the error did not have a "substantial and injurious effect or influence in determining the jury's verdict." Id. at 359 (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353, 373 (1993)).

The Court noted that the evidence of Lewis' guilt was overwhelming. Id. at 359-60. Moreover, Lewis had represented himself at trial and had been accorded "considerable leeway in presenting his version of events." Id. at 360. The Court said, "This fact makes it far less likely that it occurred to jurors to draw an inference of guilt from Lewis' failure to formally testify." Ibid.

However, in Haley, we concluded that a trial judge's failure to provide an adverse inference instruction when a defendant elects not to testify and requests the instruction is a constitutional defect that requires reversal of a conviction. Haley, supra, 295 N.J. Super. at 477. Our Supreme Court has not questioned Haley, and we see no sound reason to depart from the principles enunciated in that opinion.

Furthermore, in Haley, we also stated that, even if the judge's failure to provide the jury with the instruction was not constitutional error per se, reversal was nevertheless required there. Id. at 478. This was so because we could not say the judge's failure to instruct the jury "'might [not] have contributed to the conviction.'" Ibid. (quoting State v. Sanchez, 129 N.J. 261, 278 (1992)).

We reach the same conclusion in this case. Here, the State presented strong circumstantial evidence that defendant conspired with Mercer to commit a burglary, theft or attempted theft of the home on New Street and was Mercer's accomplice in the commission of the burglary. As the trial testimony indicates, defendant and Mercer drove together to New Street. Defendant remained in the car, with the engine running, as Mercer went to the rear and entered the house.

Furthermore, after defendant and Mercer were arrested and taken into custody, Mercer gave the police a statement in which he indicated that he and defendant had agreed to commit the burglary. At trial, Mercer testified that he did not recall making those statements. He also testified that it was his idea to commit the burglary, he and defendant had not agreed to commit the offense, and defendant was not involved in the burglary.

The jury was thus required to consider whether Mercer was telling the truth when he implicated defendant in the statement he gave to the police after his arrest, or whether Mercer was telling the truth in his trial testimony. We cannot say with any assurance that the judge's failure to instruct the jury on defendant's decision not to testify did not play a role in the jury's credibility determination and did not contribute to defendant's conviction. Ibid. (citing Sanchez, supra, 129 N.J. at 278).

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).