Opinion
DOCKET NO. A-5260-13T2
01-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BYAER A. JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-05-1679. Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction for third-degree terroristic threats, N.J.S.A. 2C:12-3(a). Because the judge failed to instruct the jury as to the elements of the alleged underlying violent crimes, which allowed the jury to potentially convict defendant for threatening only a simple assault against the victim's loved ones, we reverse and remand for a new trial.
A judge and jury tried this case on March 25 and 26, 2014. The State produced testimony from a correctional officer (the victim) at the Camden County Correctional Facility (the facility). Defendant did not testify. We adduce the following facts from the testimony at trial.
While the victim was on duty at the facility, he entered E Block to "lock in" the inmates and take a headcount. Defendant was housed in E Block, and while still unsecured, asked the victim for a bag of hot water. The victim responded he would have the water delivered to defendant after he locked in. Defendant then told the victim he "would like a sarge." The victim asked defendant if he was refusing to lock in, to which defendant responded "no, but I want a sarge."
A "lock in" occurs at the end of an officer's shift and refers to the officer locking the inmates in their cells to count them. --------
Defendant entered the cell, and on his way in, turned to the victim and said: "You need to remember who you're talking to. I got nothing to lose. You still got people out there you love . . . to lose." After the interaction with defendant, the victim locked defendant in and alerted his sergeant of the situation.
The victim testified he "felt threatened" by defendant's words; he was specifically concerned about his loved ones. He explained when inmates are released, they can hold grudges against officers and "find [them] afterwards," or could "call someone from the outside" to "escalate [the] situation."
The jury found defendant guilty of third-degree terroristic threats. Counsel for both parties agreed on jury instructions, which listed the underlying crimes of "assault or murder" as the violent crimes threatened by defendant against the victim's loved ones. No objection was raised during trial to the jury instructions.
At sentencing, defendant repeatedly stated he did not understand what was occurring in response to the judge's questioning and that he did not give the court jurisdiction over him. The judge concluded defendant was feigning to avoid sentencing, and sentenced defendant after receiving assurance from defense counsel that defendant had understood what was happening when they discussed the sentencing procedures beforehand. The judge sentenced defendant to a five-year prison term with twenty-four months' parole ineligibility, and imposed appropriate fines and penalties.
Defendant raises the following points on appeal:
POINT I
THE JURY CHARGE ON TERRORISTIC THREATS WAS ERRONEOUS IN THAT IT ALLOWED THE JURY TO CONVICT EVEN IF IT FOUND THAT DEFENDANT HAD ONLY THREATENED A SIMPLE ASSAULT. (Partially Raised Below).
POINT II
WHEN [DEFENDANT] REPEATEDLY STATED THAT HE DID NOT UNDERSTAND THE SENTENCING PROCEEDINGS, THE TRIAL JUDGE ERRED BY FINDING THAT [DEFENDANT] WAS FEIGNING. (Not Raised Below).
POINT III
THE SENTENCE IMPOSED WAS EXCESSIVE UNDER THE CIRCUMSTANCES.
We begin by addressing defendant's contention the jury charge was erroneous because the judge failed to instruct the jury as to the elements of assault or murder, the possible crimes of violence defendant is alleged to have threatened. He maintains that had the judge given that charge, the jury may have concluded that he committed a disorderly persons offense of simple assault, which would not be a "crime" under the terroristic-threats statute.
Because defendant did not object to the charge at trial, we review for plain error. State v. Bunch, 180 N.J. 534, 541 (2004). Under this deferential standard, we disregard any error or omission "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also State v. Czachor, 82 N.J. 392, 402 (1980) (explaining "[t]he test for plain error is whether under the circumstances the error possessed a clear capacity for producing an unjust result, that is, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached") (citations and internal quotation marks omitted).
Our Supreme Court has consistently emphasized "clear and correct jury instructions are essential for a fair trial." State v. Nelson, 173 N.J. 417, 446 (2002) (citation and internal quotation marks omitted). "A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990). Indeed, "[s]o critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error." Ibid.
A defendant is guilty of third-degree terroristic threats where he or she (1) "threatens to commit any crime of violence" (2) "with the purpose to terrorize another . . . or in reckless disregard of the risk of causing such terror." N.J.S.A. 2C:12-3(a). The model jury charge for terroristic threats, Model Jury Charge (Criminal), § 2C:12-3(a) Terroristic Threats (Jan. 26, 2004), provides, in pertinent part:
The first element that the State must prove beyond a reasonable doubt is that defendant
threatened to commit any crime of violence. The State alleges that defendant threatened to commit the violent crime of ___.Footnote one of the jury charge states "the trial court should instruct the jury on the elements of the crime of violence defendant threatened to commit." Ibid. (citing State v. MacIlwraith, 344 N.J. Super. 544, 548 (App. Div. 2001)).
In MacIlwraith, this court explained:
An element of a subsection (a) terroristic threat is a threat "to commit any crime of violence." In order for a jury to be properly guided it must be instructed on the qualities of "any crime of violence" the proofs suggest the defendant may have threatened. That is, the elements and definition of any such crimes must be adequately explained to the jury, so that the jury is not left to speculate as to the crimes that might be supported by the evidence. . . . The instruction is one of special importance where, as here, the only other convictions that occurred which embodied facts pertinent to the cognate charges were for petty disorderly persons offenses, which are not crimes by definition.
[Id. at 547-48.]
Here, the judge instructed the jury, in pertinent part:
The first element the State must prove beyond a reasonable doubt is that the defendant threatened to commit any crime of violence. The State alleges the defendant threatened to commit the violent crime of assault or murder of the loved ones of [the victim].
[(emphasis added).]
Defendant relies on MacIlwraith and various unpublished opinions for the proposition that the jury could have found defendant guilty of terroristic threats based on an underlying simple assault, which he contends is not a crime of violence.
N.J.S.A. 2C:1-4(b) states:
An offense is a disorderly persons offense if it is so designated in this code or in a statute other than this code. An offense is a petty disorderly persons offense if it is so designated in this code or in a statute other than this code. Disorderly persons offenses and petty disorderly persons offenses are petty offenses and are not crimes within the meaning of the Constitution of this State.Moreover, the statute defines simple assault as "a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense." N.J.S.A. 2C:12-1(a).
[(emphasis added).]
We conclude the judge committed plain error in failing to define the elements of the underlying crimes of violence and reverse for a new trial. The judge only identified the crimes of violence in the abstract, namely assault and murder, that defendant threatened to commit against the victim's family members. This ignored the clear instruction of MacIlwraith, supra, 344 N.J. Super. at 547, which states that "the elements and definition of any such crimes [of violence] must be adequately explained to the jury."
The judge did not explain the difference between simple assault and aggravated assault, and therefore left the jury "to speculate as to the crimes that might be supported by the evidence." Ibid. The judge should have explained that a conviction for aggravated assault, which is a "crime" under the statute, requires proof of serious bodily injury, N.J.S.A. 2C:12-1(b)(1), whereas simple assault does not, N.J.S.A. 2C:12-1(a)(1). By failing to do so, the judge blurred the lines between the two offenses, prejudicing defendant. Thus, because the judge failed to properly instruct the jury as to the elements of the offenses, and because the jury could have convicted defendant based on the belief that he threatened to commit only a simple assault against defendant's family, his conviction must be reversed and a new trial held.
We reject the State's argument that the threat of simple assault would automatically constitute a crime of aggravated assault given the victim's status as a corrections officer. See N.J.S.A. 2C:12-1(b)(5)(h). The jury charge in this case makes clear that the "State alleges the defendant threatened to commit the violent crime of assault or murder of the loved ones of [the victim]." (emphasis added). Thus, the State's argument was that defendant threatened to commit an assault against or murder the victim's loved ones, not the victim himself, undermining its argument on appeal that the threat was to assault the victim. Moreover, the State concedes that "the instructions failed to strictly heed footnote one [of the jury charge][] by not fully instructing the jury on the elements of the crimes of violence alleged[.]"
We recognize, as the State notes, that defense counsel approved the jury charge. Nevertheless, we conclude that manifest injustice requires reversal. See State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998).
Because we have concluded that the jury charge was inadequate, we need not consider defendant's remaining two points on appeal.
We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION