NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0749-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS FLORES, a/k/a EDWIN RIVERA,
Defendant-Appellant. __________________________________
Submitted January 17, 2018 – Decided July 20, 2018
Before Judges Carroll and Leone.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 15-04-0223.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs).
Michael H. Robertson, Somerset County Prosecutor, attorney for respondent (Paul H. Heinzel, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Luis Flores appeals from his September 20, 2016
judgment of conviction. We affirm his convictions for robbery and
possession of a weapon for an unlawful purpose, but remand to
merge the latter into the former for sentencing purposes.
I.
The testimony at trial included the following. On April 1,
2015, the owner of a grocery store in Bound Brook saw on the
surveillance monitor that defendant was taking items from the
shelves and stuffing them inside his clothing. The owner
approached defendant and told him to unzip his jacket. Defendant
unzipped his outer jacket and said he did not have anything. The
owner saw defendant was wearing a jacket underneath his outer
jacket and told him to unzip his inner jacket.
When defendant partially unzipped his inner jacket, several
detergent boxes fell to the floor, and it appeared he had other
items near his waist. The owner told defendant to pull its zipper
all the way down, but defendant refused. The owner stood three
feet in front of defendant, blocked his exit, and told him to
return the items.
Defendant pulled out a knife. The open folding knife had a
two-and-a-half inch blade and was five inches long. The owner
testified he was "very afraid" and in "fear for my life."
2 A-0749-16T1 The owner pulled out his cellphone to call the police.
Defendant stepped forward, and stuck out his hand with the knife.1
He put the knife close to the owner's body, and grabbed his
cellphone. The owner, fearing defendant might hurt or kill him,
retreated and allowed defendant to leave the store.
As defendant left, he dropped cash inside and outside the
store. He started picking up the cash, and handed the owner his
cellphone. Defendant tried to re-enter the store to retrieve
cash. The owner pushed him out and called for help. A neighbor
came and together they pushed defendant to the ground and held him
and his hand holding the knife. An officer arrived, grabbed the
knife from defendant's hand, and arrested him. The items defendant
took or tried to take from the store were worth over $150.
In his statement to police, defendant admitted he put items
inside his jacket to steal them, and took out "a little" knife
"[f]or [the owner] to see it and get scared." When asked if the
owner got scared, defendant responded "Well, yes. Obviously."
Defendant was convicted of first-degree robbery by putting
the owner in fear of immediate bodily injury while armed with,
using, or threatening the immediate use of a deadly weapon,
1 At trial, the owner demonstrated what defendant had done, and the trial court described that defendant "lunged toward the victim" pointing the knife at him.
3 A-0749-16T1 N.J.S.A. 2C:15-1, and third-degree possessing a weapon for
unlawful purposes, N.J.S.A. 2C:39-4(d).
Defendant appeals, raising the following points:
POINT I – ERRONEOUS JURY INSTRUCTIONS DEPRIVED FLORES OF HIS RIGHT TO A FAIR TRIAL. (Partially Raised Below).
A. The Court Directed the Jury's Verdict With Respect to an Essential Element of the Robbery Charge.
B. During its Preliminary Instructions, the Court Erroneously Charged the Jury on Reasonable Doubt.
C. The Cumulative Effect of the Instructional Errors Warrants Reversal.
POINT II – THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN ADVISING THE JURY TWICE THAT FLORES WOULD ONLY DECIDE WHETHER TO TESTIFY IN HIS DEFENSE AFTER SITTING AND LISTENING TO THE ENTIRETY OF THE PROSECUTION'S CASE. (Not Raised Below).
POINT III – THE JURY'S UNFETTERED ACCESS TO FLORES'S TRANSLATED STATEMENT DEPRIVED HIM OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
II.
Defendant first appeals the denial of his objection to a
sentence in the final jury charge. The trial court gave the model
jury instructions on robbery, telling the jury it had to find that
defendant "threatened [the owner] with or purposely put him[] in
4 A-0749-16T1 fear of immediate bodily injury," and that he was alleged to have
"threatened the immediate use of a deadly weapon." See Model Jury
Charge (Criminal), "Robbery In The First Degree (N.J.S.A. 2C:15-
1)" (rev. Sept. 10, 2012). The court then told the jury:
you must understand what's meant by deadly weapon. That's fairly easy. A deadly weapon is anything which in the manner it is used or intended to be used is known to be capable of producing death or — or serious bodily injury. And generally speaking a knife is known to be capable of producing death or serious bodily injury.
Now, and that has to be accompanied by the manner in which it is used would lead the victim to believe it to be capable of producing death or serious bodily injury.
After the court's charge, defense counsel objected that the
trial court added the "generally speaking" sentence. The court
responded: "Well, I don't think anybody who's lived to adulthood
would dispute that a knife is capable of producing death or serious
bodily injury."
We do not approve of the trial court's divergence from the
model instructions by adding the unnecessary "generally speaking"
sentence. However, defendant was not prejudiced. First, the
evidence showed that the knife, "in the manner it [wa]s used or
[wa]s intended to be used, [wa]s known to be capable of producing
death or serious bodily injury," and thus met the definition of a
"deadly weapon" in N.J.S.A. 2C:11-1(c). Second, the court told
5 A-0749-16T1 the jury it could not convict unless it found that defendant used
the knife in a manner that was capable of producing death or
serious bodily injury, and that the victim believed it capable of
producing death or serious bodily injury.
The evidence showed the manner the knife was used was both
known to be, and would lead the victim reasonably to believe it
was, capable of producing death or serious bodily injury. When
the owner confronted defendant for stealing, defendant pulled out
an open folding knife, pointed the knife at the owner, and lunged
at him with the knife. The knife had a two-and-one-half-inch
blade. The owner testified he feared defendant was going to kill
him, and defendant admitted he intended to and did scare the owner.
Moreover, the trial court required the jury to find that "the
manner in which it is used would lead the victim to believe it to
be capable of producing death or serious bodily injury." Under
the statute and the model jury instructions, that is part of an
alternative way of finding that a device is a deadly weapon. The
statute and model instruction define a deadly weapon as
any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, (1) is known to be capable of producing death or serious bodily injury or (2) which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury[.]
6 A-0749-16T1 [N.J.S.A. 2C:11-1(c) (emphasis and numbers added); accord Model Jury Charge (Criminal), "Robbery In The First Degree".]
This second alternative covers the use of objects "fashioned
by a creative robber into something that generates a reasonable
belief that it is or conceals a lethal weapon," such as pointing
"a finger in a pocket." State v. Williams, 218 N.J. 576, 588
(2014). However, the trial court did not treat it as an
alternative or mention "fashioned." Instead, the court told the
jury it could not convict defendant of first-degree robbery unless
it found both that defendant had a knife and that the manner in
which it was used would lead the victim to believe it to be capable
of producing death or serious bodily injury, which imposed on the
State a burden it did not have to carry under the "known to be"
alternative. Again, we do not approve of the court's variance
from the model charge. Nonetheless, the court's additional
requirement offset its earlier "generally speaking" sentence.
Moreover, the trial court properly instructed the jury that
"to find the defendant was armed with a deadly weapon, the State
must prove that he . . . had the purpose to use it in a way that
is capable of producing death or serious bodily injury." See
Model Jury Charge (Criminal), "Robbery In The First Degree." Thus,
the court told the jury it could not convict defendant unless both
7 A-0749-16T1 he had the purpose to use the knife in a way that was capable of
producing death or serious bodily injury, and that he used it in
a manner that led the victim to believe it was capable of producing
death or serious bodily injury.
Under the definition of deadly weapon, the manner in which a
knife is used or intended to be used is crucial. "[I]f the weapon
is not a firearm, but an object with legitimate uses, for example
a paperweight or a pair of scissors, its use or intended use will
determine whether it meets the deadly weapon standard." State v.
Rolon, 199 N.J. 575, 583 (2009). "Because the [folding] knife was
not per se a deadly weapon, the jury had to assess whether
defendant used it or intended to use it as such." Id. at 586.
"If the jury believed defendant used or intended to use the knife
against the victim, the definition of deadly weapon was satisfied."
Ibid.
Here, the evidence showed, and the jury necessarily found,
that defendant intended to use the open folding knife against the
owner by pointing it and lunging with it to put the owner in fear
of death or serious bodily injury. Whether a "knife[] is regarded
as a deadly weapon is resolved by a 'contextual test.' 'If it is
used as a weapon, it is a [deadly] weapon.'" State v. Burford,
163 N.J. 16, 20 (2000) (quoting Cannel, New Jersey Criminal Code
Annotated, comment 4 on N.J.S.A. 2C:39-5 (1999)).
8 A-0749-16T1 In any event, we have no doubt that if the trial court had
properly read the model charge without the "generally speaking"
sentence, the jury would have found that defendant used the knife
in a manner "known to be capable of producing death or serious
bodily injury." "Knives are commonly used in causing deaths and
serious bodily injuries." State v. Munroe, 210 N.J. 429, 446
(2012). A folding "knife, popularly known as a pocketknife,
penknife, or jackknife," may "be a lethal weapon." State v. Green,
62 N.J. 547, 560 (1973).2 By pointing the knife and lunging at a
victim, defendant used it in a manner known to be capable of
producing death or serious bodily injury. The jury found that was
what defendant intended to do, and what the owner believed he was
doing. Under these circumstances, it is clear beyond a reasonable
doubt that any rational juror would have found the folding knife
was a deadly weapon. See United States v. Smith, 561 F.3d 934,
937-41 (9th Cir. 2009) (finding harmless that the court instructed
the jury to find if the defendant used a knife rather than
instructing it to determine if he used a dangerous weapon).
2 See, e.g., State v. Walker, 694 S.E.2d 484, 493 (N.C. Ct. App. 2010) ("A pocketknife is also unquestionably capable of causing serious bodily injury or death," including one "having a blade two and a half inches long"); Commonwealth v. Duxbury, 674 A.2d 1116, 1118 n.4 (Pa. Super. Ct. 1996) ("There is no doubt that [a penknife with a three-inch blade] is capable of producing death or serious bodily injury").
9 A-0749-16T1 This was not a situation where a defendant merely had a
folding knife in his pocket throughout the robbery, and "[t]here
was no evidence that defendant used or intended to use his pocket
knife during the course of the robbery. Nor did the victim himself
have knowledge of defendant's possession of the knife." State v.
Riley, 306 N.J. Super. 141, 146 (App. Div. 1997). In those
circumstances, we have held the unseen, unused knife was not a
deadly weapon. Id. at 149; State v. Brown, 325 N.J. Super. 447,
454 (App. Div. 1999); see Rolon, 199 N.J. at 586 (ruling that if
the defendant "never used or intended to use the closed folding
knife that simply dropped out of her pocket onto the floor during
the scuffle, the definition of deadly weapon was not met"). By
contrast, the circumstances here showed defendant was using the
knife as a deadly weapon.
Like our Supreme Court, we "remind our trial courts that,
insofar as consistent with and modified to meet the facts adduced
at trial, model jury charges should be followed and read in their
entirety to the jury." State v. R.B., 183 N.J. 308, 325 (2005).
Nonetheless, to the extent [the trial court's divergences from the
model charge] were error, under the . . . facts of this case, we
do not find the charge so erroneous as to require reversal."
Estate of Kotsovska ex rel. Kotsovska v. Liebman, 221 N.J. 568,
596-97 (2015). Here, the trial court's divergences were not
10 A-0749-16T1 prejudicial and were not "clearly capable of producing an unjust
result." R. 2:10-2.
We recognize that "'"[a]ppropriate and proper charges are
essential for a fair trial."'" State v. Baum, 224 N.J. 147, 158-
59 (2016) (alteration in original) (citations omitted). "An
erroneous jury charge 'when the subject matter is fundamental and
essential or is substantially material'" is presumed prejudicial
and is a "'poor candidate[] for rehabilitation under the harmless
error [standard].'" State v. Maloney, 216 N.J. 91, 104-05 (2013)
(citations omitted). Nonetheless, "[u]nder that standard, there
must 'be "some degree of possibility that [an error] led to an
unjust result. The possibility must be real, one sufficient to
raise a reasonable doubt as to whether [the error] led the jury
to a verdict it otherwise might not have reached."'" Baum, 224
N.J. at 159 (citations omitted). We do not see such a real
possibility here.
Defendant does not claim that there was such a possibility.
Rather, he claims reversal is required because the "generally
speaking" sentence directed a verdict on an essential element of
first-degree robbery, namely that defendant was "armed with, or
use[d] or threaten[ed] the immediate use of a deadly weapon."
N.J.S.A. 2C:15-1(b).
11 A-0749-16T1 However, the trial court did not direct a verdict. The court
uttered the sentence in the course of instructing the jurors "in
order for you to determine whether the defendant was in possession
of or threatened the immediate use of a deadly weapon." The court
made clear to the jurors: "In order for you . . . to find defendant
was armed with a deadly weapon, the State must prove . . . that
he possessed it and had immediate access to the weapon but also
had the purpose to use it in a way that is capable of producing
death or serious bodily injury." The court instructed the jurors:
"If you find that the State . . . has not proven beyond a reasonable
doubt that the defendant was armed with or used or purposely
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 simple [second-degree] robbery."
The trial court merely stated that "generally speaking a
knife is known to be capable of producing death or serious bodily
injury." "Generally speaking" means "in general." The court left
for the jury the specific determinations whether defendant "had
the purpose to use it in a way that is capable of producing death
or serious bodily injury" and whether "the manner in which it was
used would lead the victim to believe it to be capable of producing
death or serious bodily injury."
12 A-0749-16T1 This case bears no resemblance to the cases defendant cites,
where judges directed a verdict. In State v. Collier, 90 N.J. 117
(1982), the judge "direct[ed] the jury to return a verdict of
guilty on the charge of contributing to the delinquency of a
minor." Id. at 121. State v. Ragland, 105 N.J. 189 (1986),
addressed the "unique" situation where a defendant is tried first
for unlawful possession of a weapon and then in a bifurcated
proceeding for possession of a weapon by a convicted felon, where
the judge told the jury it had already found that the defendant
"was in possession of a sawed-off shotgun," even though the jury
was required "to consider anew the evidence previously admitted
[and] to disregard completely its prior verdict." Id. at 192-95.
In State v. Grenci, 197 N.J. 604 (2009), the court in a
burglary prosecution instructed the jury that "it's true with
regard to [two defendants] that they entered without license or
privilege to be" in the victim's apartment. Id. at 621. "That
instruction specifically advised the jury that, in the cases of
[the two defendants], both of whom were being tried in absentia,
one element of burglary had been proven[.]" Id. at 622. "The
court reinforced that mistake by explaining - without any mention
of [the two defendants] - that if '[the third defendant] entered
the apartment of [the victim] at [the victim's] implied or
13 A-0749-16T1 expressed invitation,'" then "'[the third defendant] could not be
convicted of the crime of burglary.'" Id. at 621-22.
By contrast, the "generally speaking" sentence did not
mention defendant, did not advise the jury it was "true" defendant
committed any element, and did not reinforce any such comment.
Rather, as set forth above, the trial court's other instructions
offset the "generally speaking" comment, and made plain that the
jury had to decide this element. "Based on the totality of the
instructions, we are satisfied that the judge did not direct a
verdict on any element of the charges against defendant. Thus, a
reversal is not warranted." See State v. Wesner, 372 N.J. Super.
489, 495 (App. Div. 2004).3
On appeal, defendant complains for the first time about the
trial court's comment regarding "what's meant by deadly weapon.
That's fairly easy." That comment, while unnecessary, was
immediately followed by the correct definition: "A deadly weapon
is anything which in the manner it is used or intended to be used
is known to be capable of producing death . . . or serious bodily
3 Indeed, even a refusal to submit an element to the jury is subject to harmless-error analysis and can be harmless. Neder v. United States, 527 U.S. 1, 4, 7-20 (1999); State v. Purnell, 161 N.J. 44, 63-64 (1999) (following Neder); Smith, 561 F.3d at 938 (following Neder); see also State v. Camacho, 218 N.J. 533, 550-52 (2014) (citing Neder and holding that even instructional errors "of constitutional dimension" are subject to harmless-error analysis).
14 A-0749-16T1 injury." See N.J.S.A. 2C:11-1(c). Defendant has not shown the
comment was plain error "clearly capable of producing an unjust
III.
Defendant next challenges a portion of the trial court's
preliminary instructions to which he did not object at trial.
"[T]he failure to object to a jury instruction requires review
under the plain error standard." State v. Wakefield, 190 N.J.
397, 473 (2007). Defendant must demonstrate "'"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."'"
Ibid. (citations omitted); see State v. Chew, 150 N.J. 30, 82
(1997). To show such an effect, defendant must prove the error
was "clearly capable of producing an unjust result[.]" R. 2:10-
2. We must hew to that standard of review.
portion of the trial court's preliminary instructions after the
jury was sworn, addressing direct and circumstantial evidence:
A conviction may be based on direct evidence alone, circumstantial evidence alone, or a combination of circumstantial and direct evidence, provided, of course, that it convinces you of a defendant's guilt beyond a
15 A-0749-16T1 reasonable doubt. Conversely, if direct or circumstantial evidence gives rise to a reasonable doubt in your minds as to the defendant's guilt, then the defendant must be found guilty. Therefore, both circumstantial and direct evidence should be scrutinize [sic] and evaluated carefully by you.
Defendant now notes the "conversely" sentence should have the
word "not" before "guilty." See Model Jury Charge (Criminal),
"Instructions After Jury Is Sworn" (rev. Oct. 15, 2012).4 The
absence of "not" went unnoticed by the trial court, the prosecutor,
or defendant's counsel, and thus may not have been noticed by the
jury. "Defendant's failure to 'interpose a timely objection
constitutes strong evidence that the error belatedly raised here
was actually of no moment.'" State v. Tierney, 356 N.J. Super.
468, 481 (App. Div. 2003) (citation omitted); see State v. Ingram,
196 N.J. 23, 42 (2008). Because defendant did not object to the
instruction, "there is a presumption that the charge . . . was
unlikely to prejudice the defendant's case." State v. Singleton,
211 N.J. 157, 182 (2012).
Indeed, the structure of the paragraph and the "conversely"
sentence made its meaning clear. After the trial court's first
sentence said "A conviction may be based" on direct or
circumstantial evidence that "convinces you of defendant's guilt
4 The court reporter has certified the transcript was accurate. No audio recording is available.
16 A-0749-16T1 beyond a reasonable doubt," the court followed with "Conversely,
if direct or circumstantial evidence gives rise to a reasonable
doubt in your minds as to the defendant's guilt," leading to the
natural conclusion that the jury would have to find defendant not
guilty. "Conversely" means "introducing a statement or idea which
reverses one that has just been made or referred to." New Oxford
American Dictionary 381 (3d ed. 2010). That was how the
"conversely" sentence was intended and apparently how it was
understood.
In addition, our Supreme Court has "emphasized that '[t]he
alleged error is viewed in the totality of the entire charge, not
in isolation[.]'" Wakefield, 190 N.J. at 473 (citation omitted).
Later in its opening instructions, the trial court gave a full
reasonable-doubt instruction, correctly telling the jury that:
defendant "is presumed to be innocent"; "unless each and every
essential element of an offense charged is proved beyond a
reasonable doubt he must be found not guilty of that charge"; "[a]
reasonable doubt can arise from the evidence itself or from a lack
of evidence"; and if "you are not firmly convinced of Mr. Flores's
guilt, you must give him the benefit of the doubt and find him not
guilty."
Moreover, the trial court's opening instructions told the
jurors to keep an open mind until they heard the final jury
17 A-0749-16T1 instructions. In those final instructions, the court again gave
a full reasonable-doubt instruction, repeating the same correct
instructions that if the jury found a reasonable doubt they must
find defendant "not guilty." The court also correctly instructed
the jury on direct and circumstantial evidence, reciting the
equivalent paragraph and giving the jury the correct law:
A verdict of guilty may be based on direct evidence alone, circumstantial evidence alone or a combination of the two, provided, of course, that it convinces you of the defendant's guilt beyond a reasonable doubt. The reverse is also true. If by reason of direct evidence, circumstantial evidence, a combination of the two, or a lack of evidence it raises in your mind a reasonable doubt about the defendant's guilt, you must give him the benefit of the doubt and find him not guilty.
Thus, the court made clear that if the jurors found a reasonable
doubt based on direct evidence, circumstantial evidence, or the
lack of evidence, they had to find defendant "not guilty."
Further, "'any finding of plain error depends on an evaluation
of the overall strength of the State's case.'" Wakefield, 190
N.J. at 473 (citation omitted). Here, the State presented
testimony from the owner who witnessed and was the victim of the
charged robbery, the responding officer who saw the knife still
in defendant's hand and the stolen goods still in his clothes, the
officers who recovered the knife and goods, the detective to whom
18 A-0749-16T1 defendant confessed, his confession, the knife, and other
witnesses and evidence. The State's case was strong and
essentially uncontradicted.
Defendant cannot show plain error in light of the strength
of the State's case, his non-objection to the "conversely" sentence
in the preliminary direct-and-circumstantial-evidence
instruction, the trial court's clear, correct, and repeated
reasonable-doubt instructions, and its correct direct-and-
circumstantial-evidence instruction in the final charge before the
jury deliberated. He has not shown prejudice "'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.'" Wakefield, 187 N.J. at 473-75
(finding no plain error from the omission of two sentences from
the reasonable doubt instruction).
Rather, the lack of prejudice is shown by "'"the isolated
nature of the transgression and the fact that a correct definition
of the law on the same charge is found elsewhere in the court's
instructions."'" Baum, 224 N.J. at 160 (citations omitted); see
State v. Docaj, 407 N.J. Super. 352, 370-71 (App. Div. 2009). In
State v. Burns, 192 N.J. 312 (2007), our Supreme Court found no
plain error where the judge omitted the word "not" from its
instruction about the defendant's relative who refused to answer
19 A-0749-16T1 questions about the defendant at trial: "[T]he mere fact that Mr.
Young didn't answer the questions is [not] for your consideration
as to the existence of those facts." Id. at 343. The Court
emphasized that the judge elsewhere correctly informed the jury
"it should not draw any inference about facts contained in the
questions that the witness refused to answer." Ibid. The Court
also stressed "[t]he failure of either defendant or the State to
object to the inappropriate comment in the jury charge." Ibid.
"[V]iewing the instructions as a whole, and in light of the
overwhelming evidence of defendant's guilt, the brief inadvertent
error in the instructions does not require a new trial." Ibid.
The same is true here.
Defendant also argues the cumulative effect of the
instructional errors warrants reversal. However, the omission of
one word in the "conversely" sentence in the preliminary direct-
and-circumstantial evidence instruction had no effect because it
went unnoticed and was corrected by the context and by the trial
court's repeated, correct instructions. Moreover, the "generally
speaking" sentence in the final charge regarding first-degree
robbery was offset by the court's other instructions requiring the
jury essentially to make the required finding. Neither sentence
resulted in prejudice. The two sentences also had no cumulative
effect as they had nothing to do with one another and were
20 A-0749-16T1 separated by the entire trial. "We are fully satisfied that, both
individually and collectively, any errors committed at trial were
not clearly capable of" producing an unjust result. See State v.
Feaster, 156 N.J. 1, 85 (1998).
IV.
Defendant next challenges, for the first time, the trial
court's comments to the jury about the anticipated events before
the jury began deliberations. Defendant fails to show plain error.
At the conclusion of the Thursday trial day, the trial court
gave the jury a "snapshot" of upcoming events "[j]ust for your
planning purposes":
I am advised that the State has, perhaps, one more witness to put before you. Okay. At that point the State will rest. There will then be some legal issues I anticipate that I will have to discuss with counsel. Before I ask [defense counsel] and Mr. Flores as to whether they will present evidence for your consideration and ask if Mr. Flores will testify. I'm not even allowed to ask that until the State has rested because yet again I tell you, the burden of proof is on the State. It never shifts.
Based on those events, the trial court told the jurors "I expect
that we may have this matter concluded on Monday but for jury
charge and summations," but its "expectation realistically" was
that the jurors would "have this case for your deliberations
Tuesday morning."
21 A-0749-16T1 On Monday, after the State rested, the trial court again
advised the jury of upcoming events:
I think I indicated last Thursday that I thought the State's case might wrap up today and indeed it has. At this point I have to have a discussion with [defense counsel] to determine or to ask him to advise me as to whether he intends to put evidence before you for your consideration. There are other legal matters that I need to discuss with the attorneys before we proceed with that. And until the State rests I'm not even permitted, nor is it appropriate for me, to make inquiry of Mr. Flores as to whether he's going to testify, because as I remind you, and you have heard me say a number of times, he doesn't have to present evidence. He doesn't have to testify. Okay. But there is a procedural colloquy – excuse me — not a procedural, a subsequent colloquy discussion we have to have in that regard. So, that will probably take us to three o'clock. . . . So I'm inclined to excuse you now[.]
The trial court then excused the jury for the day. With the
jury absent, the court heard defendant's motion for a directed
verdict, held the colloquy with defense counsel and defendant
about whether defendant wanted to testify, and was told he would
not testify and the defense would rest.
It is clear that in the two quoted paragraphs the trial court
was providing the jurors with a sequence of events to predict when
they would start deliberating and to explain why they were being
dismissed early. The court referenced the colloquy about whether
defendant wished to testify because it was an event that would
22 A-0749-16T1 affect the timing of trial to an uncertain extent because the
court could not know whether defendant would testify until the
State rested.
The trial court's desire to advise the jurors of their
anticipated schedule was understandable. However, it was
unnecessary to describe for the jury events that properly occur
out of the jury's presence, such as the colloquy. The court should
have simply informed the jurors of their own schedule without
describing the colloquy, and needlessly triggering the need for
the cautionary instructions the court gave.
Nonetheless, defendant was not prejudiced. The trial court
gave cautionary instructions that defendant "doesn't have to
present evidence. He doesn't have to testify." and "the burden
of proof is on the State. It never shifts." Moreover, when the
jury returned on Tuesday, it learned defendant was not going to
testify when defense counsel agreed the defense had no "evidence
to present for the jury's consideration. The defense would rest."
Further, the court properly charged the jury:
as you know, Mr. Flores elected not to testify at this trial. As I have told you before, that is his constitutional right to remain silent. You must not consider for any purpose in any manner at any time in arriving at your verdict the fact that Mr. Flores did not testify. That fact should not enter into your deliberations or discussions in any manner at any time.
23 A-0749-16T1 Defendant does not claim the trial court's scheduling
comments prejudiced him by referencing his right not to testify.
Instead, he asserts that the comments suggested he sought to tailor
his testimony because the court said he would not decide until
after the State rested.
Defendant's argument is baseless. First, the trial court's
statements "I'm not even allowed to ask that until the State has
rested" and "until the State rests I'm not even permitted, nor is
it appropriate for me, to make inquiry" implied the timing of the
inquiry was dictated by legal requirements, not by defendant. We
have ruled a "[d]efendant is not obligated to give the State
advance notice of her intention to testify or not testify. . . .
until the State has rested," State v. Alston, 212 N.J. Super. 644,
648 (App. Div. 1986), and that a court may not require such advance
notice, In re Mandell, 250 N.J. Super. 125, 131 (App. Div. 1991).
Second, defendant did not testify or present witnesses. As
a result, there was no testimony the jury might view as tailored.
Thus, this case bears no relation to the cases defendant cites,
where the defendant testified and "the prosecutor suggested during
summation [or cross-examination] that defendant tailored his
testimony to meet the facts testified to by other witnesses."
State v. Daniels, 182 N.J. 80, 85, 98-99 (2004); see State v.
24 A-0749-16T1 Feal, 194 N.J. 293, 298 (2008). Therefore, "we do not find that
plain error occurred." See Feal, 194 N.J. at 313.
Defendant next complains for the first time that the trial
court allowed the jury to take into the deliberations room the
translated transcript of his statement to police. He fails to
show plain error.
After defendant's arrest, he gave a statement in Spanish to
a detective also speaking in Spanish. The statement was video-
recorded, and a translator viewed the DVD and prepared a written
transcript in English. Defense counsel said he had "No objection"
when the transcript was admitted as an exhibit.
The detective read the transcript to the jury. Without
objection, the trial court gave copies of the transcript to the
jurors to read along, and stated: "since the statement is in
Spanish, the transcript itself has been entered into evidence. So
you'll have the original copy with you in the jury deliberation
room when you begin that portion of your responsibilities."
Just before summations, defense counsel and the prosecutor
stipulated to changes in the transcript, providing English
translations of the Spanish phrases previously marked "inaudible."
Defense counsel read the stipulation to the jury, including: "The
State and the defendant do hereby agree and stipulate that the
25 A-0749-16T1 transcript of the statement of Luis Flores translated into English
should reflect the following changes. The statement transcript
has been marked into evidence. You'll get a copy of it."
Generally, "[t]he jury may take into the jury room the
exhibits received in evidence[.]" R. 1:8-8(a). "The Rule does
not distinguish between testimonial evidence, such as statements
or depositions, and non-testimonial evidence." State v. A.R., 213
N.J. 542, 560 (2013). Under the rule, it was perfectly appropriate
to allow the jury to consider the transcript during deliberations
because it had been admitted as an exhibit. See State v. DeBellis,
174 N.J. Super. 195, 199 (App. Div. 1980).
By contrast, "video-recorded statements have been considered
a different type of exhibit." A.R., 213 N.J. at 560. Courts have
created "an exception to Rule 1:8-8(a)" under which "a trial court
should not permit a jury to have unrestricted access during
deliberations to the videotaped pretrial statements of witnesses."
State v. Weston, 222 N.J. 277, 289 (2015).
The cases creating this exception have emphasized the
differences between a video recording and a transcript.
"'[V]ideotape evidence is unique' because it allows jurors to
observe the witness's demeanor while hearing the testimony." State
v. Burr, 195 N.J. 119, 133 (2008) (quoting State v. Michaels, 264
N.J. Super. 579, 643 (App. Div. 1993), aff'd on other grounds, 136
26 A-0749-16T1 N.J. 299 (1994)). "'[V]ideotaped testimony provides more than
conventional, transcribed testimony'" because the jury views the
image of the witness and hears "'all of the animation, passion,
or sympathy originally conveyed'" in the witness's words. A.R.,
213 N.J. at 553 (quoting Michaels, 264 N.J. Super. at 644). Seeing
the image "magnifies the effect of" hearing "every inflection,
every hesitation, and every equivocation in the voice of the
witness." Id. at 546. "The video recording is the functional
equivalent of a live witness and can be particularly persuasive."
Id. at 560 (citation omitted). Because "a video replay . . .
presents much more information than does a transcript reading,"
defendant is mistaken in claiming that a transcript is the
functional equivalent of a videotaped statement. Burr, 195 N.J.
at 133 (quoting Michaels, 264 N.J. Super. at 644).
Defendant notes the precaution that, "because a jury's review
of a videotaped witness statement or testimony raises concerns
that a particular segment will be overemphasized or viewed out of
context, any replay of such a statement or testimony must be
conducted in open court, under the careful supervision of the
trial judge." Weston, 222 N.J. at 292-93. However, this
precaution arose from the Court's principal fear that jurors would
"place undue emphasis" on video recordings because of "the unique
features of . . . video-recorded evidence." A.R., 213 N.J. at
27 A-0749-16T1 546, 559-61; see Burr, 195 N.J. at 131-34 (citing precautions "to
reduce the risk that the jury would unduly emphasize the videotaped
testimony" "over other testimony presented at trial"); see also
Michaels, 264 N.J. Super. at 643-45 (agreeing that replaying
witness's videotaped testimony "'unduly emphasized their
testimony'"). In any event, in these and other cases the Court
stated it was sufficient if "the entire testimony requested should
be played back — including direct and cross examination — so that
evidence may be considered in its proper context." E.g., State
v. Miller, 205 N.J. 109, 122 (2011). The trial court provided the
jury with the entire transcript, and thus the entire context.
Similarly, it was the unique nature of video recordings that
caused the courts to require that "a replay of a videotaped
statement during deliberations should only be conducted upon the
jury's request, and after a determination that the jury's concerns
cannot be addressed with a readback of testimony." Weston, 222
N.J. at 293 (citing A.R., 213 N.J. at 560-61; Burr, 195 N.J. at
133-35; Michaels, 264 N.J. Super. at 644-45).
Defendant now complains that the transcript was translated
by a legal secretary in the prosecutor's office. However, she was
fluent in Spanish, spoke the same Puerto Rican dialect as
defendant, and had translated over a hundred statements. Both she
and the Spanish-speaking detective certified to the accuracy of
28 A-0749-16T1 the transcript. Moreover, defendant points to no inaccuracy in
the transcript. Thus, defendant has not shown plain error. See
Weston, 222 N.J. at 300.
In any event, defense counsel expressly stated he had no
objection to the admission of the transcript, stipulated to changes
to replace inaudible words, and stipulated the jury would receive
a copy. In his closing argument, counsel reiterated that "[t]he
statement of Mr. Flores was entered into evidence and you'll have
it with you." Counsel argued defendant's statement showed that
he only intended shoplifting, and that he only took out the knife
to defend himself and escape. Accordingly, defendant's claim is
also barred by "the invited-error doctrine. Under that settled
principle of law, trial errors that '"were induced, encouraged or
acquiesced in or consented to by defense counsel ordinarily are
not a basis for reversal on appeal[.]''" A.R., 213 N.J. at 561-
63 (citations omitted) (barring the defendant from complaining
that the jury had unfettered access to a video-recorded statement
during deliberations); see N.J. Div. of Youth & Family Servs. v.
M.C. III, 201 N.J. 328, 339-42 (2010) (barring the defendant from
complaining documents were admitted when defense counsel said he
had no objection).
29 A-0749-16T1 VII.
Finally, defendant raises a merger claim the State concedes
is meritorious. On the robbery court, the trial court sentenced
defendant to ten years in prison with 85% parole ineligibility
under the No Early Release Act, N.J.S.A. 2C:43-7.2. On the count
charging the possession of a weapon for unlawful purposes, the
court imposed a concurrent term of four years in prison.
As the parties agree, the possession for unlawful purposes
count should have merged for sentencing purposes with the robbery
count. The trial court instructed the jury: "the State contends
that the defendant's unlawful purpose in possessing the knife was
to put the victim in fear of immediate bodily injury." That
concededly occurred during, and was an element of, the robbery.
See N.J.S.A. 2C:15-1(a)(2). There was no evidence of, and the
jury was instructed not to consider, any other unlawful purpose.
"[W]hen the only unlawful purpose in possessing the [knife] is to
use it to commit the substantive offense, merger is required."
See State v. Tate, 216 N.J. 300, 308 (2013) (quoting State v.
Diaz, 144 N.J. 628, 636 (1996)).
We reverse defendant's sentence for possession for an
unlawful purpose and remand "for correction of the judgment of
conviction to reflect that the conviction for possession of a
weapon for an unlawful purpose merges into the [robbery]
30 A-0749-16T1 conviction." See id. at 313. We affirm in all other respects.
We do not retain jurisdiction.
31 A-0749-16T1