STATE OF NEW JERSEY v. ANTHONY WILSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4243-07T44243-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY WILSON,

Defendant-Appellant.

________________________________________________________________

 

Argued September 29, 2009 - Decided

Before Judges Lisa, Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-07-1085.

Karen E. Truncale, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Truncale, of counsel and on the brief).

John McNamara, Jr., Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; Mr. McNamara, on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon (a metal bar) for an unlawful purpose, N.J.S.A. 2C:39-4d. After merging the weapons conviction with the robbery conviction, the judge sentenced defendant to a mandatory extended term pursuant to N.J.S.A. 2C:43-7.1b(2) (a provision in the "Three Strikes Law"), to twenty years imprisonment, subject to an 85% parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. Because the jury instructions regarding accomplice liability were inaccurate and misleading, we reverse and remand for a new trial.

I

This is the State's version of the facts as adduced at trial. At about 5:40 a.m. on March 4, 2006, Victor Panales Jiminez, a cab driver driving a livery van, picked up a fare in Dover. After Jiminez electronically opened the rear doors, the man got into the driver's side rear door and sat directly behind Jiminez. The man then demanded that Jiminez turn over his wallet and give him money. He held an iron bar against Jiminez's throat.

Jiminez was pulled out of the driver's seat while being choked and pushed to the center of the van between the two front seats. Jiminez believed there was more than one person in the van because his arms were grabbed and he was being pulled in different directions and struck, while he was continuing to be asphyxiated with the iron bar. He estimated there were as many as four attackers. Jiminez gestured toward the visor above the driver's seat, where he had placed $500. In addition, Jiminez had $8 in his wallet. The assailants stole his wallet and the $500.

During the course of the attack, one of the assailants, believed by Jiminez to be the individual he picked up as his fare, moved into the driver's seat with the van still running. Jiminez could feel the van moving and felt an impact when it crashed into something.

A resident in the immediate vicinity heard the crash and looked out his window. He saw that the van crashed into his parked car. He could not see inside the van because of its tinted windows, but he observed that all of the doors of the van were closed. He also observed that the van was being operated because it "had pulled up and was making a turn." By the time the resident got downstairs, "[t]hey had apparently finished the turn," and the van was pointing in the opposite direction as when he first observed it. The driver's side door and the passenger side sliding door were open. He did not see any assailants. He saw only Jiminez, who staggered out of the van in an apparently injured and disoriented state.

Jiminez was communicating by walkie-talkie in his native Spanish language with someone at his cab company. Jiminez then got into the van and drove away. The resident called the police. Jiminez presented himself at the police station with at least one colleague from the cab company, who served as an interpreter. Jiminez gave a statement to the police describing the events in the manner we have described them.

Jiminez could give only a very general description of the first man who entered the van as his fare. He was unable to give any particularized description of the other assailants.

In their investigation, the police recovered a metal bar from the van, which Jiminez said was not present in the van prior to this incident. The police also detected fresh blood stains on Jiminez's sweater, upholstery of the van seats, and the driver's side visor. Based on some prior involvement with law enforcement, defendant's DNA profile was included in a DNA database. See N.J.S.A. 53:1-20.17 to -20.37 (the DNA Database and Databank Act of 1994). Forensic testing of the blood stains from the visor and Jiminez's sweater yielded positive results matching them to defendant.

On December 15, 2006, defendant was in custody in the Morris County jail. Pursuant to a search warrant, the police obtained a buccal swab of defendant, which confirmed the DNA match from this incident. The police interviewed defendant on that date, after administering Miranda warnings. The police advised defendant of the incident they were investigating and informed him of the DNA match. Defendant denied any knowledge of the robbery or how his blood may have come to be in the van.

On April 18, 2007, after again being administered Miranda warnings, defendant was interviewed further. Defendant continued to deny any knowledge of the incident. On that date, defendant was taken into custody and charged with the robbery and assault of Jiminez.

On July 25, 2007, a Morris County grand jury returned a five-count indictment against defendant. The first four counts charged him with the following offenses, "acting as a principal and/or accomplice": (1) first-degree armed robbery, N.J.S.A. 2C:15-1a(1); (2) first-degree carjacking, N.J.S.A. 2C:15-2a(1); (3) first-degree carjacking, N.J.S.A. 2C:15-2a(4); and (4) third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The fifth count charged defendant with second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1; N.J.S.A. 2C:5-2.

No other assailants were ever identified or apprehended. At defendant's trial, Jiminez and the resident testified for the State, as did various police witnesses and scientific experts. Defendant testified in his own behalf. He acknowledged being in the van and having an interaction with Jiminez, but described the events very differently.

According to defendant, about a week before this incident, he and several friends rode in a taxicab van and "stiffed" the driver, running from the van without paying the fare, which was about $17 or $18. On March 4, 2006, defendant hailed a cab, and it turned out that it was the same van and the same driver that he and his friends had stiffed. Defendant claimed that Jiminez recognized him, closed and locked the doors, and asked whether defendant remembered him. Jiminez then said, "policia," meaning that he was going to drive to the police station, presumably to report the incident from the prior week. Defendant reached over into the driver's area in an attempt to "hit the mechanism" to unlock the door. Jiminez elbowed him. A scuffle ensued, and defendant eventually exited the van and fled.

Defendant contended he was alone during the incident. He said he acted as he did because, in light of his prior criminal record, he did not want to go to the police station. Defendant denied possessing or using any sort of metal bar. He denied robbing Jiminez or stealing any money from him. By this version of the events, defendant provided an explanation as to how his blood ended up on Jiminez's sweater and on the visor.

The prosecutor cross-examined defendant about his prior inconsistent statements to the police, in which he denied being in the van on March 4, 2006. Defendant said he denied being present in the van because of his belief that, in light of his prior criminal record, the police would not believe his version of the events.

The jury acquitted defendant of both carjacking counts and conspiracy to commit robbery. It found him guilty of first-degree armed robbery and possession of a weapon for an unlawful purpose. The judge imposed sentence as we previously set forth.

II

On appeal, defendant raises the following arguments through his counsel:

POINT I

THE JURY INSTRUCTIONS ARE REPLETE WITH ERROR SUCH AS THE INCLUSION OF INAPPLICABLE CHARGES AND THE EXCLUSION OF RELEVANT LAW. (Not Raised Below).

A. The Court Failed To Charge The Lesser-Included Offense Of Second Degree Robbery.

B. The Accomplice-Liability Charge Was Not Tailored To The Facts Of The Case, And Failed To Explain How The Accomplice Theory Applied To The Lesser-Included Offenses.

C. The Court Failed To Explain That The Statements Of The Defendant Could Only Be Used To Impeach.

D. The Trial Court Failed To Follow The Mandates Of R. 1:8-8(b) And Properly Instruct The Jury On Note-Taking.

E. Conclusion.

POINT II

THE CROSS-EXAMINATION OF THE DEFENDANT WENT WELL BEYOND IMPEACHMENT AND WAS TANTAMOUNT TO A VIOLATION OF HIS RIGHT TO REMAIN SILENT. (Not Raised Below).

POINT III

THE TRIAL COURT ERRED IN DENYING A MOTION FOR JUDGMENT OF ACQUITTAL ON THE CARJACKING AND CONSPIRACY COUNTS WHICH RESULTED IN DISTRACTING THE JURY FROM A FAIR EVALUATION OF THE RELEVANT CHARGE OF ARMED ROBBERY.

POINT IV

THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY IN SUMMATION WHEN HE REFERRED TO THE DEFENDANT AS A CONVICTED FELON, WHO WAS NOT WORTHY OF SYMPATHY AND WHO CHOSE TO NOT TELL THE TRUTH TO THE POLICE WHEN QUESTIONED.

POINT V

THE DEFENDANT'S STATEMENTS SHOULD HAVE BEEN EXCLUDED FOR ALL PURPOSES INCLUDING THAT OF IMPEACHMENT.

In a supplemental pro se brief, defendant raises these additional arguments:

POINT I

MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED BECAUSE THE STATE FAILED TO PROVE THEFT BEYOND A REASONABLE DOUBT.

POINT II

THE STATE FAILED TO PROVE ACTUAL KNOWING POSSESSION OF A WEAPON [TO] SUSTAIN A CONVICTION FOR POSSESSION OF A WEAPON [FOR] AN UNLAWFUL PURPOSE.

POINT III

VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV

THE VERDICT MUST BE REVERSED BASED UPON THE FAILURE TO SANITIZE MR. WILSON'S PRIOR CONVICTIONS AND NOT PROVIDING THE JURY WITH A LIMITING INSTRUCTION AT THE TIME OF HIS TESTIMONY.

POINT V

THE CONVICTION MUST BE OVERTURNED BASED UPON THE FAILURE TO MOLD THE JURY INSTRUCTIONS.

POINT VI

ANTHONY WILSON WAS DEPRIVED OF A FAIR TRIAL BECAUSE OF THE FALSE SWEARING OF MR. PINALES.

POINT VII

PROSECUTOR COMMITTED MISCONDUCT BY VOUCHING FOR THE VICTIM[']S CREDIBILITY.

POINT VIII

CONCLUSION.

III

The State's theory of the case was that defendant and the unknown assailants acted in concert with each other and shared a common purpose to commit an armed robbery of Jiminez, to commit carjacking against him, and to possess a weapon, the metal bar, for the unlawful purposes set forth in the indictment. The State also theorized that defendant and the others conspired to commit the robbery.

Over the course of a lengthy charge conference, it was determined without objection by the State or defense that various lesser-included offenses to robbery should be presented to the jury, namely second-degree robbery, theft from the person, and theft of moveable property. It was also agreed that the judge would charge theft of services and simple assault in light of defendant's version of the events. Defendant does not appeal from these determinations.

It is notable that at the charge conference, it was the State, not defendant, that requested that lesser-included offenses be charged. Although defendant later agreed, defendant initially objected to the State's proposal. By making the proposal, the State acknowledged its recognition that, under its theory of the case, if Jiminez was believed, at least one of the perpetrators committed a first-degree armed robbery, but one or more of the others, including defendant, might have participated in the criminal episode with a lower degree of culpability depending upon their conduct and intent, making them guilty of only a lesser offense. The State does not now argue otherwise. The issue before us is whether the instructions accurately conveyed that principle to the jury.

In charging the substantive offenses in each count of the indictment, the judge began with robbery. He followed the model charge for first-degree robbery, which was substantially the same as the current version. See Model Jury Charge (Criminal), "Robbery In The First Degree" (2009). This is a "blended" instruction, by which the applicable elements of second-degree robbery are first explained as the elements, followed by a gradation trigger, which explains to the jury (as applicable in this case): "A section of our statute provides that robbery is a crime of the second degree, except that it is a crime of the first degree if the actor: Is armed with, or uses or threatens the immediate use of a deadly weapon." Ibid. (citation omitted). Following that format, and following the language of the model charge, the judge then explained the State's allegation that the metal bar was used as a deadly weapon. Continuing to follow the model charge, the judge then said:

To summarize, if you find that the State has not proven beyond a reasonable doubt any element of the crime of robbery as I've defined it, -- that crime to you, then you must find the defendant not guilty. If you find that the State has proven beyond a reasonable doubt that the defendant committed the -- the crime of robbery as I've defined that crime to you, -- but if you find that the State has not proven beyond a reasonable doubt that the defendant was armed with, or used, or threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then you must find the defendant guilty of robbery in the second degree.

If you find that the State has proven beyond the reasonable doubt that the defendant committed the crime of robbery, and was armed with a deadly weapon, or used, or threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then you must find the defendant guilty of robbery in the first degree.

In Point IA, defendant argues that the court erred by failing to provide a separate instruction for the lesser-included offense of second-degree robbery. More particularly, defendant argues that the "distinction [in the above-quoted passage] was a grossly inadequate explanation of second-degree robbery." We do not agree that the blended instruction contained in the model charge for first-degree robbery is inherently inadequate to explain the difference between first and second-degree robbery. Indeed, when accomplice liability principles are not involved, the charge is clear and sufficient. However, as we will further discuss, when accomplice liability principles are involved, use of this blended instruction has the capacity to blur the distinction among co-perpetrators based upon their particular conduct and intent.

We turn now to defendant's Point IB, that the accomplice liability charge with respect to robbery was fatally defective because it was not tailored to the facts of the case and it failed to explain how the accomplice theory applied to the lesser-included offenses. After the robbery charge, the judge instructed the jury on accomplice liability. There are two model charges for accomplice liability. Both are designated as Model Jury Charge (Criminal), "Liability For Another's Conduct" (1995). "Charge # One" is for use "[w]here defendant is charged as accomplice and jury does not receive instruction on lesser included charges." "Charge # Two" is for use "[w]here defendant is charged as accomplice and jury is instructed as to lesser included charges." The judge correctly followed the latter form, but he incorrectly omitted a crucial portion of it.

We set forth some portions of the charge given, upon which the State relies in support of its position that, although the charge was somewhat deficient, it substantially set forth the controlling legal principles and should not provide a basis for reversal. After describing the general concept of accomplice liability, the judge said:

This provision of the law means that not only is the person who actually commits the criminal act responsible for it, but one who is legally accountable as an accomplice is also responsible.

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

The Court will further explain this distinction in a moment. In this case, the State alleges that the defendant is equally guilty of the crimes committed by another person because he acted as an accomplice with the purpose that the specific crime charged be committed.

The State points us to the second sentence in the quoted passage. However, that sentence is preceded by one which suggests that an accomplice is responsible for the same crime committed by the principal, and it is followed by the promise that "[t]he [c]ourt will further explain this distinction in a moment." An adequate explanation never came. The final sentence in this passage merely sets forth the State's contention that if someone committed a first-degree armed robbery against Jiminez, the accomplice is also guilty of that crime because he acted with the purpose to commit it. Again, no explanation is given as to how one perpetrator could be guilty of a greater offense, while another perpetrator, who participates in the criminal episode, could be guilty of a lesser offense.

As the charge continued, it included generic statements, for example, that the State was required to prove "that the defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act," and if the jury found that the defendant "with the purpose of promoting or facilitating the commission of the offense," facilitated or aided in its planning or commission, the jury "should consider him as if he committed the crime, himself." However, no cogent explanation was given, with or without reference to the facts of the case or the specific lesser-included offenses that were going to be charged, as to how the jury should navigate these general principles.

The State also points us to this passage, which the judge included in his instruction:

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

This passage is not only inadequate to explain potential differing degrees of culpability among the participants, but without further explanation it is misleading. It suggests that accomplice liability is predicated upon a finding that the accomplice possessed the same state of mind as the principal. See State v. Bielkiewicz, 267 N.J. Super. 520, 531-32 n.2 (App. Div. 1993).

The capacity to mislead the jurors in this manner was compounded in this case because on the two carjacking counts and the possession of a weapon for an unlawful purpose count, for which no lesser-included offenses were submitted to the jury, the judge followed Charge # One of the model accomplice liability charges, in which the jury is instructed that for defendant to be found guilty as an accomplice the jury must find that defendant possessed the same criminal state of mind as the principal. The jury therefore heard that instruction on accomplice liability three times, after hearing the incomplete version on first-degree robbery and its lesser-included offenses.

Nowhere did the judge instruct the jury that even if one or more of the perpetrators other than defendant committed a first-degree armed robbery against Jiminez, defendant could be found guilty of one of the lesser-included offenses if the jurors were not convinced beyond a reasonable doubt that defendant himself engaged in conduct and acted with a purpose to commit that armed robbery. Indeed, defendant's purpose could have been limited to committing an unarmed second-degree robbery if he did not know or intend that one of his cohorts possessed and would use the metal bar in robbing Jiminez. The jury could also have found that defendant had the purpose only to commit a theft from the cab driver, if that could be accomplished without using force or inflicting bodily injury, which elevates a theft to a robbery.

Instead, the instructions had the capacity to mislead the jury into believing that accomplice liability required a commonality of intent and purpose between the accomplice and principal. In going through each of the lesser-included offenses to first-degree robbery, the judge did not make any mention of accomplice liability principles and how defendant could have been guilty of one of those lesser-included offenses even though one or more of the other perpetrators may have been guilty of any one or more of the greater offenses.

We now set forth the portion of the model charge omitted by the judge which would have furnished the promised further explanation of the potential distinction in degrees of culpability between an accomplice and principal:

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).4

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 agree 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}.

If you find that the State has proven each one of these elements beyond a reasonable doubt, then you must find the defendant guilty. If on the other hand you find that the State has failed to prove one or more of these elements beyond a reasonable doubt, then you must find the defendant not guilty. As I have previously indicated, your verdict(s) must be unanimous. All twelve jurors must agree as to guilty or not guilty.

________

4 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).

[Model Jury Charge (Criminal), "Liability For Another's Conduct," Charge # Two (1995).]

Because defendant did not object to the jury charge, our review is guided by the plain error standard, and we will not reverse unless the error is "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result is sufficient; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In the context of jury instructions, plain error is "legal 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. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). Erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979).

In Bielkiewicz, this court definitively set forth the principles implicated in this case, and held that "when 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." Supra, 267 N.J. Super. at 527. We noted that submission of lesser-included offenses to the jury without accurate and complete instructions regarding accomplice liability for the lesser offenses raises a "risk that the jury will compromise on a guilty verdict for the greater offense." Id. at 534. This is because without clear instructions, a jury convinced beyond a reasonable doubt that the principal committed the greater offense might easily be led to believe that "they would be required either to acquit or also to convict the alleged accomplice of [the greater offense]." Ibid.

Bielkiewicz followed a line of cases espousing the same principle, see, e.g., State v. Sloane, 111 N.J. 293, 299 (1988); State v. Weeks, 107 N.J. 396, 410 (1987); State v. Madden, 61 N.J. 377, 391 (1972); State v. Fair, 45 N.J. 77, 95 (1965), and it has been uniformly followed in subsequent cases, see State v. Ingram, 196 N.J. 23, 39 (2008) ("We have adopted, with approval, Bielkiewicz's analysis." (citations omitted)). Bielkiewicz is the seminal case on the subject, however, because it provides a detailed analysis of what must be explained to the jury to constitute the required accurate and complete understanding of accomplice liability principles when lesser-included offenses are involved.

The instruction in this case required strict adherence to those principles. The lack of compliance was a serious error. The State argues that any error should be deemed harmless because the State's proofs were overwhelming, defendant's blood was found in the van, the weapon was recovered from inside the van, the victim suffered significant injuries, and it is obvious that all of the perpetrators were acting together with a common purpose. We reject that proposition.

Accomplice liability principles take on particular importance in situations involving multiple participants engaging in a violent attack with the potential for differing states of mind. State v. Cook, 300 N.J. Super. 476, 486 (App. Div. 1996). In such circumstances, "'[t]he liability of each participant for any ensuing crime is dependent on his own state of mind, not on anyone[] else's.'" Id. at 486-87 (quoting State v. Bridges, 254 N.J. Super. 541, 566 (App. Div. 1992), rev'd on other grounds, 133 N.J. 447; dismissed as moot, 134 N.J. 482 (1993)). The jury in this case obviously rejected defendant's version of the events, after which "it was required to apply correct legal principles to assess [defendant's] liability under the State's own version of the events." Id. at 488. It was necessary that the jury be "advised in unequivocal terms that, depending on its view of the evidence, it could decide that the liability of [defendant] was different from that of [any other assailant] because each had a different state of mind." Id. at 487-88. Such an explanation was critical to a reliable result. We conclude that the error had the clear capacity of producing an unjust result, as a result of which defendant's conviction for first-degree robbery must be reversed.

IV

Although it is not necessary to our decision, we comment on another aspect of the charge on robbery and the accompanying accomplice liability instruction that was problematic. Use of the blended first-degree robbery charge, which includes within it second-degree robbery instructions, was a cause of some confusion in the context of accomplice liability. Throughout much of the accomplice liability charge, the judge referred generically to "robbery" as the charged offense. Of course, the charged offense was first-degree robbery, and second-degree robbery was a lesser-included offense. With respect to the latter, a proper accomplice liability instruction was required, and the jury was required to determine whether defendant's state of mind included the added element that elevates second-degree robbery to first degree.

In our view, in these circumstances, it would be clearer if the jury were first instructed on first-degree robbery as the charged offense, and then given a separate and distinct charge on second-degree robbery, pointing out, of course, the difference of the missing element that would elevate it to first degree. In doing so, it would be made clear to the jury that second-degree robbery is a separate offense from first-degree robbery and requires separate consideration as to its elements in terms of accomplice liability principles. We refer this issue to the Committee on Model Criminal Jury Charges for its consideration.

V

In addition to first-degree robbery, defendant was also convicted of possession of a weapon for an unlawful purpose. As we noted earlier in this opinion, the indictment alleged accomplice liability in that count (as well as in the first-degree robbery and the two carjacking counts). It is questionable whether accomplice liability applies to a possessory weapons offense. Cook, supra, 300 N.J. Super. at 489. However, in this case, that is the way it was charged in the indictment, and that is the manner in which the jury was instructed. The jury was not instructed on principles of constructive possession or joint possession. It was instructed that the element of the crime requiring proof that the weapon was used in a manner that was prohibited by law required a finding that "defendant possessed a weapon with his conscious objective, design, or specific intent to use it against the person or property of another in an unlawful manner as charged in the indictment and not for some other purpose." (emphasis added).

Although the instruction continued with a more general statement that "the State contends that the defendant's unlawful purpose in possessing the weapon was to use it against Victor Panales Jiminez," we are of the view that considering the overall charge on the subject, it had the capacity to infect this conviction in the same way as the robbery conviction. The jury might well have concluded that if defendant was guilty as an accomplice to a principal who committed the crime "charged in the indictment," namely first-degree armed robbery, and reached that conclusion under the faulty instruction on accomplice liability, it may have believed it was required to also find defendant responsible, as an accomplice, for possession of the weapon used in the first-degree armed robbery for that specified unlawful purpose. Accordingly, we also reverse defendant's conviction for possession of a weapon for an unlawful purpose.

VI

We comment very briefly on the remaining arguments raised by defendant. With respect to Points IC and II, if defendant testifies at his retrial, and if his prior statements are used to impeach him, close adherence to the strictures pertaining to the use of a defendant's silence shall be followed, and the judge should not again fail to instruct the jury that his prior statements may be considered only for credibility purposes. See Model Jury Charge (Criminal), "Statement By Defendant (Where Admissible For Credibility Purposes Only)" (1992).

As to Point ID, if note taking by the jurors is to be permitted, the judge should first discuss the matter with counsel on the record and set forth on the record the reasons for the determination. See R. 1:8-8(b). And, if that practice is followed, the appropriate jury instruction at the beginning of the trial and also in the final charge should be given. See Model Jury Charge (Criminal), "Note-Taking By Jurors" (Instructions after Jury is Sworn) (1998), and "Note Taking By Jurors" (Instructions: Post-Evidence) (1998).

When defendant testified, evidence of prior convictions was properly admitted, but for the sole purpose of affecting his credibility. In his version of the events, defendant described how he and his friends stiffed Jiminez for a cab fare a week before this incident, and then, when Jiminez recognized him at the time of this incident, defendant punched Jiminez in the scuffle. In his summation, the prosecutor recounted that, by his own testimony, defendant was a thief and a convicted felon, which he immediately followed with this statement: "That's what kind of man he is. He's not worthy of sympathy." We agree with defendant's argument in Point IV that this comment was improper, and it should not be repeated.

The argument in Point III lacks merit, see State v. Wilder, 193 N.J. 398, 403-06 (2008), but is rendered moot by our disposition of the appeal. Defendant's Point V was included in his appellate brief only to make clear that the issue of allowing the use of his prior statements for impeachment purposes, which was previously decided by this court, see n.3, supra, is preserved for Supreme Court review. We therefore need not comment on it.

None of the arguments raised in defendant's pro se supplemental brief warrant separate discussion. R. 2:11-3(e)(2).

 
Reversed and remanded.

There was some discrepancy in the police reports as to whether Jiminez said he had $500 or $600 above the visor. There was also some evidence that an unspecified amount of cash was found in the van, suggesting that it might not have been taken by the assailants.

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

The prosecutor did not intend to use defendant's statements to the police in its case in chief, but made known to defense counsel and the trial court his intention to use them to cross-examine defendant if defendant testified. After an N.J.R.E. 104 hearing, the trial judge ruled that the prosecutor could not use the statements for that purpose. On an emergent application, we granted the State's motion for leave to appeal and summarily reversed the order barring the use of the statements for cross-examination.

(continued)

(continued)

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A-4243-07T4

November 24, 2009