Opinion
DOCKET NO. A-3284-10T4
04-09-2013
STATE OF NEW JERSEY, Plaintiff-Respondent v. FAUSTO CAMACHO, a/k/a SPARKS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-07-01362.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Fausto Camacho appeals his March 26, 2010 conviction for second-degree eluding, N.J.S.A. 2C:29-2(b), after a one-day trial. He was acquitted of stealing the car he was driving. Defendant was sentenced to seven years in prison. We reverse and remand for a new trial because the trial judge failed to charge the jury that it could not draw an adverse inference from defendant's failure to testify after defendant requested the charge.
Bergen County Indictment 09-07-01362 charged defendant with third-degree theft of a 2003 Audi A4 automobile, N.J.S.A. 2C:20-3 (count one) and second-degree eluding by fleeing from, "Police Officer J. Smith of the Clifton Police Department" (count two). He was found not guilty of the first count and guilty of the second.
The indictment incorrectly reflects that this charge was a third-degree charge.
Defendant called no witnesses at trial. The State's witnesses testified to the following facts. On April 27, 2009, between 9:00 a.m. and 10:00 a.m., a blue Audi with the keys in the ignition was left outside a restaurant in Wallington. Someone in the parking lot noticed a light-colored Altima enter the parking lot. The passenger, with a long beard and white T-shirt, got out of the Altima, looked into the Audi and gave the driver a thumbs-up signal. The driver had short hair, or was bald. The bystander looked up when he heard a car "peel[] off" out of the lot. Both the Audi and the Altima were gone.
The owner of the Audi came out of the restaurant and called 9-1-1 when he saw that his car was gone. The police responded, but did not see his car in the area.
More than an hour later, Fair Lawn Police Officer Luis Vasquez saw a blue Audi driving "very aggressively." The driver had a beard and wore a white T-shirt. Officer Vasquez put on the car's lights and siren, but the Audi pulled away with Officer Vasquez in pursuit. The Audi accelerated up to 130 to 140 m.p.h., so Officer Vasquez abandoned the pursuit because it became too dangerous.
Clifton Detective Joshin Smith took up the pursuit with lights and siren. The Audi hit a curb twice, turned abruptly into Riverfront Plaza, a shopping center, struck a car and stopped. The two occupants ran out of the car. Detective Smith chased and captured the bearded driver, who was defendant. Among other charges, Detective Smith charged defendant with reckless driving. N.J.S.A. 39:4-96. Later the police recovered a surveillance tape from the 7-Eleven next door to the Wallington restaurant, which showed defendant was a customer that morning.
Although defendant did not have a beard at trial, both Officer Vasquez and Detective Smith identified him as the driver of the blue Audi. Defense counsel argued that defendant was not the driver of the Audi.
Defendant raised the following issues on appeal:
POINT I: THE COURT CREATED REVERSIBLE ERROR WHEN IT FAILED TO PROVIDE THE JURY WITH THE REQUESTED CHARGE OF DEFENDANT'S ELECTION NOT TO TESTIFY. (Partially Raised Below.)
POINT II: THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SET ASIDE THE ELUDING VERDICT, BECAUSE THE OFFICER NAMED IN THE INDICTMENT AS THE SUBJECT OF THE ELUDING NEVER SAW DEFENDANT DRIVING THE CAR.
It is essential to the right to a fair trial that jury charges be accurate and appropriate, particularly in criminal cases. State v. Green, 86 N.J. 281, 289 (1981). Our courts "have always placed an extraordinarily high value on the importance of appropriate and proper jury charges to the right to trial by jury. Erroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error." State v. Grunow, 102 N.J. 133, 148 (1986) (citing State v. Collier, 90 N.J. 117, 122-23 (1982)). That is, erroneous instructions are viewed as "poor candidates for rehabilitation under the harmless error philosophy." State v. Belliard, 415 N.J. Super. 51, 70 (2010) (citing State v. Feaster, 159 N.J. 1, 45 (1998)), certif. denied, 205 N.J. 81 (2011).
The State argues that the judge's initial charge to the venire as well as defense counsel's statements in his opening and closing argument were sufficient to inform the jury that it could not draw a negative inference from defendant's decision not to testify. Before the jury was selected, the judge told the entire venire:
The burden of proving the guilt of a defendant is on the State. The defense has no obligation to present a case, offer any proof relating to the case whatsoever, or Mr. Camacho in this case has no obligation to prove or offer any proof relating to his innocence. The burden falls on the shoulders of the State and the burden has to be proven by a standard of proof called beyond a reasonable doubt, and I'll explain to you in a minute what that means.Defense counsel informed the jury in his opening that, although defendant did not testify, it could not "find or draw an inference that he must be guilty because the burden never shifts to the defendant." Defense counsel reiterated this instruction in his closing. However, the judge charged the jury, as part of the standard jury charge, that "[a]ny comments by counsel are not controlling." He said, "You must accept the law as I say it to you . . . ."
The Model Jury Charge on defendant's election not to testify is:
As you know, (defendant) elected not to testify at trial. It is his/her constitutional right to remain silent.
You must not consider for any purpose or in any manner in arriving at your verdict the fact that (defendant) did not testify. That fact should not enter into your deliberations or discussions in any manner, at any time.
(Defendant) is entitled to have the jury consider all evidence presented at trial. He/she is presumed innocent whether or not he/she chooses to testify.
"[T]he right of an accused in any criminal action not to be called as a witness and not to testify has long been a part of New Jersey law[.]" State v. Bogus, 223 N.J. Super. 409, 421 (App. Div.) (citing State v. Hartley, 103 N.J. 252, 260 (1986)), certif. denied, 111 N.J. 567 (1988). In Bogus, we explained:
A defendant's right not to take the stand includes not only the right to avoid giving incriminating responses to inquiries put to him but also to be free from the inquiries themselves. The privilege against self-incrimination is sufficiently important that the Constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege, and forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. Furthermore, 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.
[Id. at 421-22 (citations and internal quotation marks omitted).]
The failure to so instruct a jury on this point is of constitutional dimension. Carter v. Kentucky, 450 U.S. 288, 302-03, 101 S. Ct. 1112, 1120, 67 L. Ed. 2d 241, 252 (1981). Our Supreme Court has recognized that although "some constitutional errors may be harmless, . . . others are of such constitutional magnitude that they are always reversible error." State v. Fusco, 93 N.J. 578, 587 (1983). The failure "to instruct the jury that it may not draw an adverse inference from defendant's constitutional right to remain silent is such an error." State v. Haley, 295 N.J. Super. 471, 477 (App. Div. 1996) (citing Bruno v. United States, 308 U.S. 287, 293-94, 60 S. Ct. 198, 200, 84 L. Ed. 257, 260 (1939)).
In Haley, during a charge conference, "the trial judge discussed with [the pro se] defendant the Model Jury Charge regarding a defendant's election not to testify and asked [the] defendant if he wanted that charge to be given to the jury. 295 N.J. Super. at 475. Although the defendant requested the charge, the judge inadvertently omitted it, ibid., and neither the defendant nor his standby counsel alerted the court. Id. at 477. In holding that the judge's omission constituted reversible error, we held that: "the error [was] of such magnitude as to 'cut mortally into the substantive rights of the defendant,' even if acquiesced in, so as to be considered by us." Ibid. (quoting State v. Shomo, 129 N.J. 248, 260 (1992)). "[T]he error in failing to instruct the jury that it may not draw an adverse inference from defendant's constitutional right to remain silent" is an error of "such constitutional magnitude that [it is] always reversible error." Ibid. (citations omitted). We added:
Even were this a constitutional error that, per se, does not require a reversal, we cannot say with any assurance that the failure to tell the jury it could not consider defendant's lack of testimony adversely "might [not] have contributed to the conviction."
[Id. at 478 (alteration in original) (quoting State v. Sanchez, 129 N.J. 261, 278 (1992)).]
We have also determined that if one defendant in a two-defendant case asks for the "no adverse inference" charge and the other defendant declines the charge, the charge must be given. See State v. McNeil, 164 N.J. Super. 27, 31 (App. Div. 1978), certif. denied, 79 N.J. 497 (1979) (holding that it was not reversible error in this situation to give the charge as to the requesting defendant only).
The United States Supreme Court has indicated that it is very doubtful "that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own[.]" Lakeside v Oregon, 435 U.S. 333, 340, 98 S. Ct. 1091, 1095, 55 L. Ed. 2d 319, 325 (1978) (holding that it does not violate the defendant's rights to give the "no adverse inference" charge over defendant's stated objection).
The State argues that the defective jury charge was harmless, pointing to our Supreme Court opinion of State v. Oliver, 133 N.J. 141 (1993). In Oliver, a defendant on trial for sexual assault and related crimes was convicted after the trial judge refused to instruct the jury, contrary to the defendant's request, that it could not draw any adverse inference from the defendant's election not to testify. Our Court analyzed the charge using the harmless error standard when it found reversible error where the trial court refused to give the no negative inference charge. Id. at 160. The Supreme Court used this standard in Oliver only because the dissenting Appellate Division judge had determined that the error was harmless. Ibid. The Court concluded its discussion in Oliver by citing and quoting Carter v. Kentucky, 450 U.S. 288, 303, 101 S. Ct. 1112, 1120, 67 L. Ed. 2d 241, 252 (1981), which states, "[n]o judge can prevent jurors from speculating about why a defendant stands mute in the face of criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum." Ibid. Thus, Oliver can not be fairly read to sanction review of the failure to give this charge under the harmless error standard. Even if we were to evaluate this error under the harmless error standard, we can not say that the failure of the judge to give the charge was harmless error. "'[T]here [was] a reasonable possibility that the [error] . . . contributed to the conviction.'" See Sanchez, supra, 129 N.J. at 278 (1992) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705, 710 (1967)). As we noted in Haley, the error was of such a nature that manifest injustice would likely result. We, thus, reverse and remand for a new trial due to the judge's omission of a requested instruction regarding defendant's decision not to testify.
Defendant also argues that the trial judge erred in denying defendant's motion to set aside the guilty verdict and grant a new trial pursuant to Rule 3:20-1 because the verdict was against the weight of the evidence. He does not argue that the State's evidence was inadequate to support the conviction. State v. Reyes, 50 N.J. 454, 458-59 (1967). As defendant will receive a new trial, we need not address his second argument.
Reversed and remanded for a new trial. 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