STATE OF NEW JERSEY v. KENNETH DANIELS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1341-06T41341-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH DANIELS,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 10, 2008 - Decided

Before Judges Cuff, C.L. Miniman and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-10-1402.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Kenneth Daniels appeals from his August 18, 2006 conviction following a trial by jury on first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count four); two counts of third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5) (counts five and six); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count seven). The jury acquitted him of second-degree conspiracy to commit aggravated assault (count one).

At sentencing, the judge merged counts three and four into count two and imposed a sentence of thirteen years imprisonment subject to the eighty-five percent parole disqualifier required by N.J.S.A. 2C:43-7.2. On counts five, six and seven, the judge imposed concurrent four-year terms of imprisonment, concurrent to the sentence imposed on count two. On counts five and six, the court also imposed a two-year term of parole ineligibility. Appropriate fines and penalties were imposed.

We reverse defendant's convictions on counts two, five and six and remand for entry of a judgment of acquittal on those counts. We reverse and remand for a new trial on counts three, four and seven.

I.

Jury selection began on May 15, 2006 and concluded on May 31, 2006. On May 31, 2006, a sheriff's officer advised the judge that a notice was left on a table in the jury room indicating a "request for transport" from the jail. The notice contained the names of the three defendants, their jail cell numbers, and other information indicating their status as inmates in the Morris County jail. On a different day during jury selection, a document was posted on a bulletin board outside the courtroom, which listed the trial and identified each defendant. Next to each defendant's name was "jail."

The judge denied a defense request to strike the seated jurors and begin anew because of the possibility of prejudice. Instead, he asked them as a group whether any of them read any notice about the case that was posted in the hallway or left on the table in the jury room. Because no juror answered in the affirmative, the judge took no further action. The judge asked the same question on the first day of trial, June 1, 2006, and received the same negative response.

We now summarize the most pertinent facts. Officer Edward Uranyi of the Chatham police department testified that on June 30, 2005, at approximately 9:00 p.m., he was dispatched to an auto theft in progress at a restaurant on Roosevelt Avenue in Chatham. When Uranyi, in a marked police vehicle, arrived at the parking lot of the restaurant, he observed a Lexus emerge from the back of the parking lot. The Lexus stopped briefly, turned its headlights off, and then accelerated toward Uranyi's vehicle at a speed of approximately 30 miles per hour, striking the patrol vehicle on the front driver's side. After hitting two other parked vehicles, the Lexus stopped.

Due to the impact, the left side of Uranyi's patrol vehicle was crushed, pinning Uranyi in the vehicle and bruising his ribs and left shoulder. Because the Lexus was only three to four feet away from Uranyi's patrol vehicle after it stopped, Uranyi was able to see the driver's face. At trial, he identified co-defendant Coleman as the driver of the Lexus. Uranyi was not able to see the passenger well enough to identify him; however, the passenger was later identified as defendant Kenneth Daniels.

As Uranyi struggled to get out of his patrol vehicle, he shouted commands at defendant and Coleman to stop and freeze. When Uranyi was finally able to force open the door of his patrol vehicle, Coleman climbed out of the Lexus and attempted to flee. Uranyi was able to grab the back of Coleman's shirt, but after a brief struggle, Coleman broke free and was able to escape Uranyi's grasp. Defendant and Coleman then ran toward Roosevelt Avenue.

As defendant and Coleman ran toward Roosevelt Avenue, an Infiniti operated by co-defendant Jones drove past Uranyi's patrol vehicle and exited the parking lot onto Roosevelt Avenue in the direction of defendant and Coleman. As Jones drove by in the Infiniti, the two dove head first into the vehicle through the passenger window. As the Infiniti sped off, defendant and Daniels were partially hanging out of the vehicle.

The Infiniti then accelerated, traveling at a speed of thirty to thirty-five miles per hour toward Officer Larry Dillon's vehicle. Like Uranyi, Dillon arrived at the scene in response to the police dispatch. Officer Dillon testified that he attempted to avoid a collision with the Infiniti, but the Infiniti struck his right front bumper. The impact caused Dillon to sustain a separated shoulder and torn ligaments. The Infiniti kept driving and disappeared into a parking lot behind some businesses. Although Dillon was able to follow the Infiniti, Uranyi lost sight of both vehicles.

Uranyi then observed three individuals, including defendant, running from behind the businesses toward Roosevelt Avenue. Uranyi pursued them on foot through several backyards, but was unable to apprehend any of the three. Police officers from a number of surrounding communities, many of whom testified, ultimately apprehended all three defendants. Jones was identified by Officer Dillon as the driver of the Infiniti.

The State also produced the testimony of the owners of the Lexus and Infiniti. Each testified that he had not given Coleman or Jones, respectively, permission to drive his vehicle.

The owner of the Infiniti, David Garramone, also testified that during the evening of June 28, 2005, two days before the events in question, he looked out the fifth-story window of his office building in Woodbridge and saw two vehicles parked next to his Infiniti coupe. He then observed an unknown individual get out of the back of his car and open the trunk. At that point, Garramone told a colleague to call police and ran down the stairs of the building. As he reached the ground floor, he saw all three of the cars, including his, driving away. Garramone then reported his vehicle stolen.

Two days later, Garramone received a phone call from the Woodbridge police department advising him that Chatham police had recovered his vehicle. When he retrieved his car, he observed considerable body damage including a damaged lock on the driver's door.

Detective Corporal William Stitt of the Morris County Sheriff's Department found a locksmith tool kit in the interior of the Infiniti after it was recovered on the night in question. A Chatham police officer found a screwdriver, a tire wrench and a pair of black nylon gloves in the back seat. Further investigation later that night revealed five other vehicles in the restaurant parking lot with damage to their door locks.

After the State rested, all three defendants moved for a judgment of acquittal. The judge denied each motion. None of the defendants testified. Only defendant presented witnesses, both of whom testified about the point of impact of the police vehicles with the Lexus and Infiniti. The State called no rebuttal witnesses.

During the charge conference, the judge denied all defendants' request that he refrain from charging second-degree robbery as a lesser included offense on the first-degree robbery count. Consequently, the judge instructed the jury to determine first whether defendant was guilty as an accomplice on the charge of first-degree robbery, and if they answered "no," to then consider whether defendant was guilty as an accomplice of the lesser included offense of second-degree robbery. The judge also specified during the charge conference the precise counts on which he would instruct the jury that each defendant was charged either as a principal or as an accomplice.

On all counts charged in the indictment, the judge instructed the jury to render a verdict on whether defendant was guilty as an accomplice of Coleman and Jones. With the exception of the aggravated assault counts, the judge also instructed the jury that if it acquitted defendant of any of the original charges, it should proceed to determine whether defendant was guilty of the specified lesser included offense. Specifically, he instructed the jury that if it found defendant not guilty of first-degree robbery as an accomplice (count two), it should consider whether he was guilty of second-degree robbery as an accomplice. He also instructed the jury that if it found defendant not guilty as an accomplice of either theft (count three) or receiving stolen property (count four), it should proceed to decide if defendant was guilty as a principal of the lesser included offense of unlawful taking of a means of conveyance as a passenger on those two counts. He also instructed the jury that if it found defendant not guilty as a principal of resisting arrest by physical violence (count seven), it should determine whether he was guilty of the lesser included offense of resisting arrest by flight as a principal.

Before the judge charged the jury, he advised defense counsel that, in order to protect courtroom security, he intended to place all three defendants in ankle shackles when the jury entered the courtroom with its verdict. After consulting with counsel about the appropriate method of hiding the ankle shackles from the jury, the judge decided to seat defendants at a "bench" in the courtroom when the jury verdict was read. Although the record does not describe the "bench" or its placement in the courtroom, apparently the ankle shackles could not be seen by the jurors if defendants remained seated. The State asserts in its brief, and defendant does not contest, this description of the seating arrangements in the courtroom:

[D]efendants never stood up. They were shackled at the ankle and their pants covered the shackles. They were not handcuffed at all and the shackles were invisible to the jury. Also, the three defendants and their three attorneys were all seated together, two tables away from the jury box. Besides the two tables, there were also two Assistant Prosecutors between the jury and the defendants and their attorneys.

The judge agreed to announce that everyone should remain seated when the jury entered the courtroom with its verdict so as not to draw undue attention to defendants, who would remain seated to avoid the awkwardness of rising while wearing ankle shackles. With that additional precaution, all three defendants agreed to this plan.

When the jury notified the judge it had reached a verdict, the jury was brought into the courtroom. With the jurors seated in the jury box, but before taking the verdict, the judge reviewed the verdict sheet and realized that the jury had not completed the entire verdict sheet and had consequently returned only a partial verdict. The judge sent the jury back to the jury room to continue its deliberations.

Defendants then asked the judge to poll the jury to determine whether any jurors had seen defendants in ankle shackles. The judge denied the request, reasoning that the shackles were not visible because defendants were seated.

The jury subsequently returned with a complete verdict, finding defendant guilty of the charges we have described. On appeal, defendant raises the following claims:

I. DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL OR, IN THE ALTERNATIVE, FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED.

II. THE TRIAL COURT'S DEFICIENT ACCOMPLICE LIABILITY CHARGE CONSTITUTES PLAIN ERROR. (Not Raised Below)

III. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED TO VOIR DIRE THE JURORS AS TO WHETHER THEY OBSERVED THE DEFENDANTS IN SHACKLES.

IV. THE TRIAL COURT FAILED TO RECOGNIZE APPROPRIATE MITIGATING FACTORS; THEREFORE, DEFENDANT'S SENTENCE MUST BE VACATED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING.

In addition, defendant raises the following points in his pro se supplemental brief:

I. THE TRIAL COURT'S ERRONEOUS AND INCOMPLETE CHARGE ON DEADLY WEAPON.

II. JURY SHOULD HAVE BEEN DISMISSED AFTER A PARTIAL VERDICT HAD BEEN RENDERED.

III. FAILURE TO PRESENT EXCULPATORY INFORMATION AS TO ROBBERY.

IV. TRIAL COURT ERRED IN CONCLUDING A VIOLENT CRIME OCCURRED.

V. FAILED TO PROVE AN ACCOMPLICE LIABILITY.

II.

In Point I, defendant argues that the trial court erred in denying his Rule 3:18-1 motion for acquittal and Rule 3:20-1 motion for a new trial. He maintains that the court was obliged to grant his motions because the State failed to prove that he acted as an accomplice of Coleman or Jones and failed to prove that he shared their intent to commit the crimes in question.

At the close of the State's case or after all evidence has been given, the court must, on motion by defendant or on its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. A new trial must be granted only if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. When, as here, a motion is made at the close of the State's case, the trial judge must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all favorable inferences which can reasonably be drawn, "a reasonable jury could find guilt beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). An appellate court will apply the same standard as the trial court to decide if the trial judge should have acquitted defendant. State v. Moffa, 42 N.J. 258, 263 (1964).

We turn first to defendant's first-degree robbery conviction (count two), in which the jury found him guilty as an accomplice of using both the Lexus and the Infiniti as a deadly weapon. Defendant argued before the trial court during his motion for acquittal that there was no evidence that he shared the requisite intent to commit robbery. Defense counsel asserted in support of the motion that "the fact that he's sitting [as] a passenger, in a stolen car, is not enough to say, hmm, this is going to elevate itself, and I know this is our plan, that if the police come . . . ." Defendant argues before us in a similar vein:

The co-defendants' extemporaneous collision with the police cars, due to the officers' unexpected arrival at the scene, simply did not elevate defendant's culpability to a robbery under accomplice liability theory: he did not "have a purpose that someone else engage in the conduct which constitutes the particular crime charged," nor did he "actually foresee and intend the result" of his co-defendants' acts.

Defendant urges us to focus on his status as a passenger in the two vehicles. Because defendant drove neither vehicle, he argues that: 1) he could not foresee that Coleman and Jones would use the vehicles as a battering ram when Officers Uranyi and Dillon approached; and 2) there was no basis to conclude that he shared their intent to do so or had agreed to aid them in so doing. He argues that the State's proofs established only that he was, in effect, a captive audience to the criminal conduct of others, and that mere presence at the scene does not, without more, render him guilty as an accomplice to first-degree robbery.

"A person is guilty of robbery if, in the course of committing a theft, he inflicts bodily injury or uses force upon another." N.J.S.A. 2C:15-1(a)(1). Robbery is a crime of the first degree "if in the course of committing the theft the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). "An act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." N.J.S.A. 2C:15-1(a).

A person is an accomplice of another person in the commission of an offense if:

(1) With the purpose of promoting or facilitating the commission of the offense; he

(a) Solicits such other person to commit it;

(b) Aids or agrees or attempts to aid such other person in planning or committing it; or . . . .

[N.J.S.A. 2C:2-6(c)(1).]

In order for accomplice liability to attach, "defendant must have a purpose that someone else engage in the conduct that constitutes the particular crime charged." Cannel, New Jersey Criminal Code Annotated, comment 7 on N.J.S.A. 2C:2-6 (2008). "Additionally, the defendant must share with the actor whatever culpability is required for the substantive crime." Ibid. Purpose may be inferred from the circumstances. See State v. Warren, 173 N.J. Super. 528, 530 (Resent. Panel 1980).

This court has previously held that mere presence at the scene of a crime does not, without more, establish accomplice liability:

"Although mere presence at or near the scene of the crime, or the failure to intervene, does not make one a participant in the crime, presence at the commission of a crime without disapproving or opposing it is evidence which, in connection with other circumstances, permits the inference that he asserted [sic] thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same."

[State v. Kamienski, 254 N.J. Super. 75, 97 (App. Div.)(quoting State v. Newell, 152 N.J. Super. 460, 469 (App. Div. 1977)), certif. denied, 130 N.J. 18 (1992).]

"[I]t is essential that [the accomplice] shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act. Mere presence at the scene of the crime, however, is insufficient to render a defendant guilty." State v. Fair, 45 N.J. 77, 95 (1965).

In reply, the State advances seven arguments to demonstrate defendant's culpability as an accomplice to robbery: (1) defendant went with Coleman and Jones to Chatham with the purpose and intent to commit theft; (2) defendant rode with Jones in the stolen Infiniti while Jones drove to Chatham; (3) there were several items found in the Infiniti to connect defendant, Coleman, and Jones to the other attempted thefts, i.e. screwdrivers and a locksmith tool kit; (4) the Infiniti, Lexus and other vehicles at the restaurant had damaged door locks; (5) based on the identical damage to the vehicles, it can be inferred that defendants were caught in the middle of the thefts; (6) defendant was a passenger in the Lexus when it left the parking lot; and (7) defendant was observed running and jumping into the stolen Infiniti.

Even giving the State the benefit of all favorable inferences, these arguments still lack merit. These seven reasons may be sufficient to support a conviction for theft, but they do not support the inference that defendant, with the purpose of promoting or facilitating the crime of first-degree robbery, aided or agreed to aid, his co-defendants in using a car as a deadly weapon. Nothing in the record demonstrates that he shared their intent or sought to aid them in doing so.

Consequently, we conclude that the State's proofs demonstrated merely that defendant was present as a passenger in the stolen Lexus and Infiniti while each vehicle was used to ram a police vehicle. No evidence demonstrates that defendant could have, or even did, anticipate that Jones and Coleman would do so, much less that he shared in their intention to do so. Nor does the evidence support the inference that defendant agreed to aid them in such conduct. Both are required elements of accomplice liability. See N.J.S.A. 2C:2-6(c)(1). Stated differently, nothing in the record supports the inference that defendant agreed before the actual crash occurred that if a police vehicle arrived on the scene, the Lexus, and later the Infiniti, would be used as a deadly weapon.

As the Court held in State v. Fair, supra, mere presence at the scene of a crime is insufficient to render a person guilty as an accomplice. 45 N.J. at 94. "Other circumstances" must be present to support the inference that the defendant was aiding and abetting in the commission of the crime. State v. Kamienski, supra, 245 N.J. Super. at 97. Here, the State presented no proof of such "other circumstances."

We recognize that in our evaluation of a Rule 3:18-1 motion, we are obliged, as is a trial judge, to give the State the benefit of all favorable inferences that a reasonable jury could draw. State v. Reyes, supra, 50 N.J. at 458-59. Even giving the State's evidence the benefit of the required inferences in the State's favor, we conclude that the evidence falls considerably short of that necessary to deny defendant's Rule 3:18-1 motion for acquittal on count two. Consequently, we reverse the robbery conviction because there was insufficient evidence to warrant defendant's conviction as an accomplice. Reversal on the ground of insufficient evidence requires an acquittal. State v. Koedatich, 118 N.J. 513, 519 (1990).

We next turn to defendant's argument that the trial court erred when it denied his Rule 3:18-1 and Rule 3:20-1 motions for acquittal on the aggravated assault charges that are contained in counts five and six. For the same reasons that the evidence was insufficient to warrant defendant's conviction on the robbery count, it is also insufficient, even with all reasonable inferences given to the State, to prove defendant shared Jones's and Coleman's purpose to inflict bodily injury on Officers Uranyi and Dillon and that he agreed to aid them in doing so. Specifically, the evidence demonstrates mere presence at the scene, which as a matter of law, is insufficient. See State v. Fair, supra, 45 N.J. at 94. Nothing in the record warrants the inference that defendant intended or agreed that at the moment when the two officers arrived on the scene, Coleman and Jones would inflict bodily injury on them. The evidence also fails to support the inference that defendant agreed to assist them in doing so, as required by N.J.S.A. 2C:2-6(c)(1). Therefore, defendant's conviction on counts five and six is reversed. We remand for entry of a judgment of acquittal on those counts.

We turn next to defendant's contention that the judge erred when he denied his Rule 3:18-1 motion for acquittal and his Rule 3:20-1 motion for a new trial on count three (theft); count four (receiving stolen property); and count seven (resisting arrest). Defendant's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). However, defendant's argument that his convictions on counts three, four and seven must be reversed due to the faulty jury charge is meritorious. We now turn to the jury charge on those three counts.

III.

In Point II, defendant argues that his convictions on all counts must be reversed because the judge gave the jury a faulty jury charge on accomplice liability. Specifically, he argues that "the court's 'canned' accomplice liability charge" never imparted to the jury the distinctions between the specific intent required for the grades of the offenses. Defendant did not raise this argument below; thus, this court will not reverse unless it is plain error that is "clearly capable of producing an unjust result." R. 2:10-2. Because we have already concluded that defendant is entitled to a judgment of acquittal on counts two, five and six, there is no need to analyze the jury charge on those counts. We thus confine our analysis of the jury charge to the remaining counts, three, four and seven.

"[A]ppropriate and proper jury charges are essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). "Use by the court of model jury charges is recommended as a method, albeit not perfect, for avoiding error." Pressler, Current N.J. Court Rules, comment 8.1 on R. 1:8-7 (2008). "[I]t may be necessary for the court to adapt the model jury charge to the facts in the evidence, and failure to do so will constitute error." Ibid.

"[W]hen a prosecution is based on the theory that a defendant acted as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel. . . ." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). "[A] jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" Id. at 528 (quoting State v. Fair, supra, 45 N.J. at 95).

In addition, "when an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'"
Ibid. (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). "'[E]ach [defendant] may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind.'" Ibid. (quoting State v. Fair, supra, 45 N.J. at 95). The Court has "adopted, with approval, Bielkiewicz's analysis." State v. Ingram, 196 N.J. 23, 39 (2008).

There are two model jury charges for accomplice liability. One is used where the judge is instructing the jury on lesser included offenses as well as on the original, indicted charges. It instructs the jury that an accomplice can have a different mental state from that of the principal. The other model charge does not address the issue of lesser included offenses and omits any discussion of one defendant having a different, and lesser, degree of culpability than the principal. Here, the jury was instructed to consider defendant's responsibility as an accomplice on all six counts, and if it found him not guilty, to consider whether he was guilty of a lesser included offense on four of those six. Yet, even though the jury was charged on lesser included offenses, the judge inexplicably chose to use the model jury charge that omits any discussion of the possibility that an accomplice may have a lesser degree of culpability than the principal.

Thus, the judge instructed the jury, when weighing the charges against defendant, to consider the specified lesser included offenses; however, the judge never gave the jury the instruction that Bielkiewicz requires. By failing to select the model jury charge that incorporates the mandate of Bielkiewicz, the judge omitted the following critical language:

Now this responsibility as an accomplice may be equal and the same as he/she who actually committed the crime(s) or there may be responsibility in a different degree depending on the circumstances as you may find them to be.

. . . .

Remember that this defendant can be held to be an accomplice with equal responsibility only if you find as a fact that he/she possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act(s).

. . . .

Now, as I have previously indicated, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice of X with full and equal responsibility for the specific crime(s) charged. If you find the defendant guilty of the specific charge(s), then you need not consider any lesser charge(s).

If, however, you find the defendant not guilty of acting as an accomplice of X on the specific crime(s) charged, then you should consider whether the defendant did act as an accomplice of X but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment.

Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his/her own state of mind and not on anyone else's.

Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of _________. I will now explain the elements of that offense to you. (Here the court may tell the jury what view of the facts could lead to this conclusion).

In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his/her own state of mind and no one else's.

Therefore, in order to find the defendant guilty of the lesser included offense(s) of _____, the State must prove beyond a reasonable doubt:

1. That X committed the crime(s) of _______, as alleged in the indictment, or the lesser included offense of __________.

2. That this defendant solicited X to commit [lesser included offense] and/or did aid or attempt to aid him/her in planning to commit [lesser included offense],

3. That this defendant's purpose was to promote or facilitate the commission of [lesser included offense],

4. That this defendant possessed the criminal state of mind that is required for the commission of [Lesser included offense].

[Model Jury Charges (Criminal), "Liability for Another's Conduct (where defendant is charged as accomplice and jury is instructed as to lesser included charges)" (1995).]

Thus, by omitting the above instruction that Bielkiewicz requires, the judge failed to instruct the jury that each party could have entered into the commission of each crime with a different intent. Specifically, the judge neglected to instruct the jury that it could only find defendant guilty as an accomplice with responsibility equal to the principal if it found that defendant had the same mental state as the principal.

We now analyze this error in relation to counts three, four and seven. Defendant was charged as an accomplice to count three, theft by unlawful taking of moveable property, N.J.S.A. 2C:20-3(a), and count four, receiving stolen property, N.J.S.A. 2C:20-7. For both counts, defendant was also charged as a principal to the lesser-included offense of unlawful taking of a means of conveyance as a passenger, N.J.S.A. 2C:20-10(d).

On count three, the court began by instructing the jury on the substantive crime of theft. Following this instruction, the court explained that the jury should consider whether defendant was guilty of the crime of theft of the Lexus as an accomplice. The judge explained that if the jury concluded defendant was not guilty as an accomplice to the theft of the Lexus, it must then consider whether he was guilty of the lesser-included offense of unlawful taking of a means of conveyance as a passenger. The court then instructed the jury on that substantive crime.

Thereafter, the court instructed the jury on count four, receiving movable property, namely the Infiniti. The court instructed the jury that it must first consider whether defendant was guilty as an accomplice to the crime of receiving stolen property, and if it concluded he was not, then it must consider whether he was guilty of the lesser-included offense of unlawful taking of a means of conveyance as a passenger. The court then gave the charge for the substantive crime of receiving stolen property.

However, nowhere in his instructions did the judge focus the jury's attention on the principal teaching of Bielkiewicz, that each participant in an offense may possess a different intent. Bielkiewicz, supra, 267 N.J. Super. at 528. Nothing in the judge's instructions served to focus the jury's attention on whether defendant's purpose was the same as that of the two drivers, namely to steal the vehicle or whether instead defendant intended only to temporarily deprive the vehicles owners of possession, in which case defendant would be guilty only of the lesser-included offense.

The Court's recent holding in Ingram, supra, is distinguishable. There, the trial court held that no Bielkiewicz violation occurred when the trial court used essentially the same jury charge that the judge used here. State v. Ingram, supra, 196 N.J. at 40. However, unlike here, the defendant in Ingram had been indicted for both the more serious substantive offense, robbery, as well as the lesser included offense of theft. Ibid. Here, in relation to the theft and receiving stolen property counts, defendant had not been charged in the indictment with the lesser included offense of unlawful taking of a means of conveyance.

For count seven, the judge instructed the jury to consider whether defendant was guilty as an accomplice to resisting arrest by using or threatening to use physical violence or force against the officer. If not, the judge instructed the jury to consider whether defendant was guilty as a principal of the lesser-included offense of resisting arrest without using or threatening physical force or violence. The judge did not, however, as Bielkiewicz requires, advise the jury that defendant and Coleman may each have had a different intent. Such an instruction was especially important, in light of evidence that it was Coleman, not defendant, who physically struggled with Officer Uranyi when he tried to arrest the two.

Thus, for counts three, four and seven, "the evil [that] Bielkiewicz seeks to guard against," ibid., is indeed present here because the judge did not instruct the jury that "two or more persons may participate in the commission of an offense, but each may participate therein with a different state of mind." See ibid. (quoting Model Jury Charge (Criminal), "Liability for Another's Conduct/Accomplice ([w]here defendant is charged as an accomplice and the jury is instructed as to lesser[-]included charge" (1995)). This error is plain error that is clearly capable of producing an unjust result, and requires reversal even in the absence of a specific request from defendant for a Bielkiewicz instruction. Id. at 38. Consequently, we reverse defendant's convictions on counts three, four and seven and remand for a new trial.

IV.

In Point III, defendant argues that the judge erred when he rejected a defense request to question the jurors about whether any of them had observed defendants in shackles. Defendant argues that when the jury returned to the courtroom and rendered a partial verdict, the panel could have observed defendants in ankle shackles because nothing covered the front of their feet. Consequently, he argues that the jury could have become prejudiced against him prior to resuming its deliberations because of the ankle shackles. For that reason, he maintains that the judge erred by refusing to question the jury on that subject.

This court has previously held that shackling a defendant in the presence of a jury is disfavored:

A defendant's freedom from handcuffs or shackles is important to his right to a fair and impartial trial. . . . One of the reasons for not keeping a defendant restrained is "to avoid a prejudice in the mind of the jury against the accused as being a dangerous man. . . ."

The trial judge's discretion to keep a defendant restrained is "sharply limited." There must be "sound reason" for the exercise of this discretion and a "strong case of necessity." . . . Additionally, "[i]n any case where the trial judge, in the exercise of sound discretion determines that the defendant must be handcuffed or shackled, it is of the essence that he instruct the jury in the clearest and most emphatic terms that it give such restraint no consideration whatever in assessing the proofs and determining guilt."

[State v. Damon, 286 N.J. Super. 492, 498-99 (App. Div. 1996)(citations omitted).]

In this case, the court decided to place defendants in ankle shackles when the jury verdict was returned because the issue of security was "most acute" at that time. The judge recognized the importance of concealing the shackles from the jury's view and adopted measures to accomplish that objective. Defendant's counsel agreed to these precautionary methods. Nothing in the record even remotely suggests the jury could have or did observe defendant's ankle shackles.

Although it is true that a "trial court may not require a defendant to appear before the jury in restraints absent compelling reasons," State v. Artwell, 177 N.J. 526, 534 (2003), the instant matter differs from Artwell because here, unlike in Artwell, defendant's shackles were in all likelihood not visible to the jury. Nothing in the record suggests that the placement of the "bench" and the judge's instruction that everyone remain seated failed to accomplish the desired objective of concealing the shackles. Had the restraints been visible, the judge would have been required to issue the curative instruction that Damon requires. However, defendant's claim that the jury could have seen the shackles is purely speculative and lacks support in the record. Therefore, defendant's claim in Point III lacks merit.

V.

In light of our conclusion that defendant's convictions must be reversed, we need not reach the sentencing argument defendant advances in Point IV.

VI.

We turn to defendant's pro se supplemental brief. In Point I, defendant claims that the court's instruction concerning the use of a deadly weapon was "erroneous and incomplete." This contention lacks sufficient merit to warrant discussion in a written opinion. R. 2:ll-3(e)(2).

In Point II, defendant argues that the jury should have been dismissed because the jury may have seen him in shackles. This claim is identical to the claim raised in Point III of his attorney's brief, which we have already concluded lacks merit. In Point II, defendant also argues that the jurors should have been dismissed because there was a possibility that they saw the transport notice that was left in the jury room and were thus tainted. The judge specifically asked the jurors "whether they happened "to notice a piece of paper that was laying on the desk" in the jury room, and if they did, to raise their hand. No juror did so.

"A decision on the potential bias of a prospective juror is addressed to the sound discretion of the trial judge. Ordinarily, a juror's declaration of impartiality will be accorded great weight and a judge's assessment of a juror's credibility in responding to questions will be respected." State v. Carroll, 256 N.J. Super. 575, 599 (App. Div.), certif. denied, 130 N.J. 18 (1992).

Nothing in the record causes us to question the jurors' veracity in their response to the judge's question. Consequently, the judge did not err when he declined to question the jurors individually. Nor did the judge err when he determined that no further action, such as dismissal of the jurors, was required.

In Point III, defendant claims that his robbery conviction should be reversed because the State failed to present exculpatory information to the jury. In Point IV, he argues that the trial court erred in finding that a violent crime occurred. Both of these claims lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). His claim in Point V, that the State failed to prove accomplice liability, is identical to the claim raised in Point I of his attorney's brief. That argument has already been considered in Point II of this opinion.

 
Reversed and remanded for entry of a judgment of acquittal on counts two, five and six; reversed and remanded for a new trial on counts three, four and seven.

Defendant was tried jointly with co-defendants Terrique Jones and Kerman Coleman. The appeals have not been consolidated, but have been calendared for disposition back-to-back. We have issued separate opinions for Jones and Coleman, under docket numbers A-0968-06 and A-2099-06, respectively.

The model charge in footnote four to this paragraph provides:

In instructing jury as to lesser included offense(s), court should tell jury what view of the facts could lead to this conclusion. See State v. Bielkiewicz, 267 N.J. Super. 520, 533 (App. Div. 1993).

Our disposition of defendant's claims in Point I and II necessitate reversal of his conviction, thereby making resolution of his shackling claim unnecessary. For the sake of completeness, we address it nonetheless.

(continued)

(continued)

32

A-1341-06T4

October 23, 2008