STATE OF NEW JERSEY v. TERRELL JACKSON DERRELL SAUNDERS (2011)

“Tried to a jury, defendant was convicted of first-degree aggravated manslaughter as a lesser-included offense of murder, N.J.S.A. 2C:11-4(a), and of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).  He was found not guilty of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).”  State v. Jackson, No. A-6317-06 (App.Div. May 19, 2009) (slip op. at 1-2).   We affirmed defendant's convictions.  Id. at 6.

This appeal is before us on remand from the Supreme Court.  State v. Jackson, 200 N.J. 205 (2009).   Among the claims of error addressed in our prior opinion was an objection to the delivery of a “Clawans charge” - a jury instruction permitting a negative inference upon a finding that the defendant failed to present available witnesses whose testimony would be reasonably expected to support his or her version of the facts, State v. Clawans, 38 N.J. 162, 170-72 (1962).   Jackson, supra, slip op. at 4-5.   The Supreme Court granted defendant's petition for certification and summarily remanded for our “reconsideration in light of State v. Alonzo Hill, 199 N.J. 545 (2009).”   Jackson, supra, 200 N.J. at 205.   Defendant and the State have submitted supplemental briefs addressing the significance of Hill.

In Hill, the Court announced a new rule generally disapproving the use of Clawans instructions against defendants in criminal cases.  199 N.J. at 565-67 & 566 n.8 (indicating that the Court had not addressed the issue previously but recognizing that this court had previously held that “use of a Clawans charge against a defendant in a criminal trial” was not error in a case involving an alibi defense and citing State v. Gonzalez, 318 N.J.Super. 527, 529 (App.Div.), certif. denied, 161 N.J. 148 (1999), a case in which this court rejected the argument without discussion and reversed on other grounds).   The Court held:

Clawans charges generally should not issue against criminal defendants.   The inclusion in a criminal trial of a Clawans charge from the court risks improperly assisting the State in its obligation to prove each and every element of a charged crime beyond a reasonable doubt.   It is difficult to foresee a situation where a Clawans charge might play a proper role in a case against a criminal defendant.   Indeed, any reference to a negative inference against a criminal defendant must be carefully scrutinized to ensure that the comment does not mislead or have the capacity to confuse the jury into believing that a defendant had an obligation to produce the witness and the substantive evidence that the witness would have provided.

[199 N.J. at 566.]

Although the Court did not entirely foreclose use of a Clawans charge against defendants in criminal cases, the Court noted “that it would be the rare case, if any, that would warrant a Clawans charge from the court.”   Id. at 566-67.¹

With respect to defendant's claim that it was error to deliver a Clawans charge, this case cannot be distinguished from Hill. The defendant in Hill was charged as an accomplice to armed robbery.  199 N.J. at 553.   The State's theory in Hill was that the defendant, who drove the perpetrators to the scene but remained in the car, was a knowing participant acting with the requisite purpose.  Id. at 550.   But Hill testified that:  he had no “prior knowledge about the robbery”;  the perpetrators, “his teenage nephew” and his nephew's two confederates, had “never said anything” about what they intended to do when they reached their destination;  and he did not see that they had a gun until they left the building after the robbery.  Ibid. The Clawans instruction was given because Hill did not call his nephew to testify at trial and confirm Hill's lack of foreknowledge of the perpetrators' plan.

On those facts, the Court observed that the trial “centered on a factual dispute between the State and Hill over an element of the crime, namely whether the State could prove that Hill had the requisite mens rea to be convicted of robbery.”  Id. at 567.   And, the Court concluded that the error was harmful because “[t]he Clawans charge impermissibly allowed the jury to believe that defendant had a responsibility to call [his nephew] and that Hill bore some burden to prove that he had an innocent state of mind,” which could have “lessen[ed] ․ the State's burden of proof on that element merely because Hill did not present an additional witness to contest the State's” proofs.  Id. at 568-69.

The Clawans instruction in this case was based upon defendant's failure to produce two alibi witnesses.   Defendant was convicted upon the testimony of eyewitnesses who identified him as the person responsible for the shooting of a young man who was driving a vehicle recklessly on a street in their neighborhood.   Jackson, supra, slip op. at 2-3.   Defendant also lived in that neighborhood and the eyewitnesses knew him as “Rell.” Ibid. The shots were fired between 10:20 and

10:35 p.m.

As noted in our prior opinion, during his testimony defendant “denied any involvement in the incident.   He said he was in a different area of the city, with his friend Yakeema and her sister Shuby.”  Id. at 3. Defendant testified to the following facts:  he left his home, which is near the crime scene, between 3:00 and 4:00 p.m., drove to visit Yakima at her sister Shuby's apartment, which is located in a public housing project across town and about a twenty to twenty-five minute drive from his home;  he stayed at the apartment all evening with Yakima, Shuby and their other guests, whose names he did not know, and returned to his home at about 11:00 p.m.

Defendant elected to testify after the State rested.   Just before defendant “took the stand, defense counsel advised the assistant prosecutor that defendant would testify that he” was not in the area when the crime was committed.  Id. at 4. “This was the first notice that an alibi defense was being proffered.”  Ibid. Despite defendant's failure to comply with Rule 3:12-2, neither attorney advised the judge that defendant would present an alibi defense.   The issue came to the judge's attention during defendant's testimony.   At that point, the prosecutor said he had no objection to the testimony and observed that the testimony would provide the State with material that would be useful during its cross-examination of defendant.

We reject the State's claim that defendant's failure to comply with Rule 3:12-2 makes this “the rare case” that the Court intended to exclude from the general bar against delivery of a Clawans instruction against the defendant in a criminal case.  Hill, supra, 199 N.J. at 566-67.²  The rationale of Hill, which is based upon the risk of undermining the presumption of innocence and lessening the State's burden of establishing guilt beyond a reasonable doubt, undoubtedly extends to an alibi defense.   Alibi, like absence of the requisite mens rea, is not a separate defense but “merely a direct denial of the State's charge.”  State v. Garvin, 44 N.J. 268, 273 (1965);  see also id. at 274 (noting that when “events at the trial ․ suggest to the jury that the defendant has the burden of proving he could not physically have committed the crime, then ․ the trial court should dissipate that danger ․”).

While the delivery of a Clawans charge in this case is not consistent with the new rule announced in Hill, in light of the jury instructions fashioned by the judge, we conclude that the error here, unlike the error in Hill, was “ ‘harmless beyond a reasonable doubt.’ ”  State v. Castagna, 187 N.J. 293, 312 (2006) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L. Ed.2d 705, 710-11 (1967));  see R. 2:10-2.   We base that conclusion upon the alibi instruction the judge delivered.   Instructions must be read as whole.  State v. Wilbely, 63 N.J. 420, 422 (1973).   So read, this instruction did not have the potential to confuse the jurors about the burden of proof.

The judge told the jurors that, as part of his general denial of guilt, defendant contended that he was not present when the crime was committed and could not be the one who committed it.   The judge then stressed:  “Where a person must be present at the scene of the crime to commit it, the burden of proving the defendant's presence beyond a reasonable doubt is upon the State.”   In the next sentence, the judge explained that defendant, in contrast, had no burden.   She directed:  “The defendant has neither the burden nor the duty to show that he was elsewhere at the time the offense was committed ․ “ (emphasis added).   The next sentence of the instruction reiterated the State's obligation:  “You must determine therefore whether the State has proven each and every element of the offense charged, including that of defendant's presence at the scene of the crime and his participation in it.” (emphasis added).

Immediately following that clear direction on the relevant burden of proof, the judge explained the inference:

If you find that ․ persons who you would naturally expect to be produced to testify weren't, you have a right to infer from the non-production of either of these witnesses that their testimony would be adverse to the interests of the defendant․  [The] adverse inference should not be drawn by the jury if you feel you've heard a satisfactory explanation for that non-production or that you feel their testimony would be comparatively unimportant, cumulative in nature or inferior to that which you already have before you.   Whether or not an adverse inference should be drawn from the failure to produce a witness is for your determination based upon the principles of law I have just set forth.

Thus, this Clawans instruction, which was more complete than the one delivered in Hill in that it advised the jurors not to draw the inference if they concluded that the witnesses' testimony would be cumulative of defendant's testimony, immediately followed an explicit direction that defendant had no obligation to establish that he was not at the scene.   In other words, read as whole, it did not “impermissibly allow[ ] the jury to believe that defendant had a responsibility to call” these witnesses or that he “bore some burden to prove” where he was at the time of the shooting.  Hill, supra, 199 N.J. at 568.   Thus, it did not have the same potential as the instruction the Court could not deem harmless in Hill - the potential to “lessen[ ] ․ the State's burden” to prove the fact about which the missing witnesses had information.  Id. at 569.

There is another difference between this case and Hill that is relevant to our analysis of the impact of the error.  State v. Chapland, 187 N.J. 275, 289 (2006).   In Hill, the State had no direct evidence of the defendant's state of mind, which is the factual issue that might have been illuminated by the testimony of Hill's nephew.   Here, the State had direct evidence that defendant was present at the scene of the crime, which was the factual issue that testimony from the missing alibi witnesses might have called into further question.   The State's evidence of the defendant's presence at the time of the crime was persuasive in that it was provided by eyewitnesses who knew defendant because they lived in his neighborhood.

On the basis of the differences between the jury instruction given in this case and Hill and the relative strength of the evidence presented in both cases, we distinguish Hill and conclude that the error in this case is harmless.   There is no room for “reasonable doubt as to whether the error denied [defendant] a fair trial and a fair decision on the merits.”  State v. Macon, 57 N.J. 325, 338 (1971).

Affirmed.

FOOTNOTES

FN1. On consideration of the terms of the Court's remand order, the due process concerns underlying the rule announced in Hill and the principles governing retroactive application of a new rule of law, State v. Feal, 194 N.J. 293, 308-09 (2008), we have no doubt that Hill applies to this defendant, whose petition for certification was pending when Hill was decided..  FN1. On consideration of the terms of the Court's remand order, the due process concerns underlying the rule announced in Hill and the principles governing retroactive application of a new rule of law, State v. Feal, 194 N.J. 293, 308-09 (2008), we have no doubt that Hill applies to this defendant, whose petition for certification was pending when Hill was decided.

FN2. In evaluating the merits of the State's request to argue for a negative inference and receive a Clawans charge, the judge in this case considered defendant's failure to comply with Rule 3:12-2, which obligates a defendant to give the State notice of an alibi defense.   See generally State v. Bradshaw, 195 N.J. 493 (2008) (discussing the Rule and steps the court should follow when confronted with a violation).   A violation of Rule 3:12-2 is a circumstance relevant to the availability of the witness to the State, which is a proper consideration in determining whether the negative inference is proper.  Hill, supra, 199 N.J. at 560 (quoting Clawans, supra, 38 N.J. at 170-72).   As argument by the prosecution, as opposed to a Clawans instruction delivered by the judge is not clearly foreclosed by Hill, failure to comply with R. 3:12-2 has continuing relevance when the State seeks leave to urge the inference in its summation.  199 N.J. at 569-70 & 569 n.9;  State v. Irving, 114 N.J. 427 (1989) (discussing inference suggested in the State's summation in a case in which the judge did not deliver an instruction on the inference)..  FN2. In evaluating the merits of the State's request to argue for a negative inference and receive a Clawans charge, the judge in this case considered defendant's failure to comply with Rule 3:12-2, which obligates a defendant to give the State notice of an alibi defense.   See generally State v. Bradshaw, 195 N.J. 493 (2008) (discussing the Rule and steps the court should follow when confronted with a violation).   A violation of Rule 3:12-2 is a circumstance relevant to the availability of the witness to the State, which is a proper consideration in determining whether the negative inference is proper.  Hill, supra, 199 N.J. at 560 (quoting Clawans, supra, 38 N.J. at 170-72).   As argument by the prosecution, as opposed to a Clawans instruction delivered by the judge is not clearly foreclosed by Hill, failure to comply with R. 3:12-2 has continuing relevance when the State seeks leave to urge the inference in its summation.  199 N.J. at 569-70 & 569 n.9;  State v. Irving, 114 N.J. 427 (1989) (discussing inference suggested in the State's summation in a case in which the judge did not deliver an instruction on the inference).

PER CURIAM