State v. Thomas

• Decision Date: 28 June 2006
• Citation: 900 A.2d 797,187 N.J. 119
• Parties: STATE of New Jersey, Plaintiff-Appellant and Cross-Respondent, v. Charles S. THOMAS, Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Supreme Court

900 A.2d 797

187 N.J. 119

STATE of New Jersey, Plaintiff-Appellant and Cross-Respondent, v. Charles S. THOMAS, Defendant-Respondent and Cross-Appellant.

Supreme Court of New Jersey.

Argued March 21, 2006.

Decided June 28, 2006.

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Karen L. Fiorelli, Deputy Attorney General, argued the cause for appellant and cross-respondent (Zulima V. Farber, Attorney General of New Jersey, attorney).

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for respondent and cross-appellant (Yvonne Smith Segars, Public Defender, attorney).

Charles S. Thomas, submitted a supplemental brief, pro se.

Justice RIVERA-SOTO delivered the opinion of the Court.

This appeal requires that we address two separate issues. First, we must consider whether, in the absence of a request by either the prosecution or the defense, the trial court erred in not charging the crime of hindering apprehension as an included or related offense of robbery. Second, we must also consider whether the trial court committed plain error when it failed to instruct the jury that, in order to sustain a conviction for second-degree eluding, the prosecution bore the burden of proving that the defendant knowingly created a risk of death or injury during flight from the commission of the crime.

We hold that, due to constitutional grand jury and notice considerations, trial courts are under no obligation to give, sua sponte, a related offense instruction that is not requested by either the prosecution or the defense. We further hold that there is no mens rea element to that portion of the eluding statute, N.J.S.A. 2C:29-2b, that enhances a defendant's penal exposure from a third- to a second-degree offense if, while knowingly fleeing or attempting to elude any law enforcement officer, the defendant "creates a risk of death or injury to any person."

I.

The relevant facts in this case are easily summarized. At approximately 5:30 p.m. on November 9, 2001, in Union Township, seventy-five year old Lore Kraemer was returning to her car from the cleaners when a man crouched by the front wheel of her car attacked her. He grabbed her left wrist, twisted and pulled her arm, and took her pocketbook containing some $750. The man ran to an idling station wagon driven by defendant Charles Thomas, and the station wagon drove off. The station wagon had been stolen earlier that week.

Kraemer screamed and returned to the cleaners to telephone the police. In the interim, Officer Daniel Roman, who was off-duty and driving his personal vehicle but was in uniform, drove past the cleaners and noticed the commotion. Officer Roman spoke with two men at the scene and gave chase after the station wagon. As he followed defendant, he radioed police dispatch, appraised them of what he had heard and observed, reported his location and that he was following the station wagon, and provided a description and the license plate number of the station wagon.

Responding to a radio call, Officers Stephen Ervelli and Raymond Reilly, who were driving an unmarked police car, tried to block defendant's escape route by placing their car, with all emergency flashers alight, perpendicular to defendant's route of travel. Defendant, however, swerved around that blockade, struck the unmarked car, and continued his flight, often reaching dangerously high speeds. Officers Ervelli and Reilly circled around to join in the pursuit and again confronted defendant, this time head-on. Defendant again crashed into the officers' car, continuing his flight at excessively high speeds, swerving in and out of traffic lanes, crossing into incoming traffic, and striking several vehicles. Defendant did not stop until he drove through a red light and struck yet another vehicle, finally disabling the stolen station wagon. Defendant and his passenger jumped out of the station wagon and ran in different directions, vaulting a number of backyard fences. In the process, they discarded Kraemer's purse as well as a number of other items. The police pursued on foot. The person who robbed Kraemer, who was the passenger in the station wagon, was never caught. Defendant, however, was arrested by Officer Ervelli in a backyard some two blocks away from where defendant abandoned the disabled station wagon.

Defendant was charged with second-degree robbery, in violation of N.J.S.A. 2C:15-1; second-degree eluding, in violation of N.J.S.A. 2C:29-2b; third-degree possession of a weapon (a motor vehicle) for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; third-degree aggravated assault (use of a deadly weapon), in violation of N.J.S.A. 2C:12-1b(2); fourth-degree criminal mischief, in violation of N.J.S.A. 2C:17-3a and b(2); fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2a; third-degree receiving stolen property (the station wagon), in violation of N.J.S.A. 2C:20-7; third-degree burglary, in violation of N.J.S.A. 2C:18-2; and third-degree theft, in violation of N.J.S.A. 2C:20-3. However, before trial, the State moved to dismiss the third-degree burglary and third-degree theft charges. Defendant, then, was tried on the remaining charges.

At trial, the prosecution established the facts recounted above from the victim, the owner of the station wagon,¹ and the police officers who gave pursuit. In addition, Detective Kevin Kalendek of the Union Township Police Department testified that he spoke with defendant twice, once on the day of the incident following defendant's arrest and, at defendant's specific request, again on November 13, 2001, four days later. Detective Kalendek further testified that, at that second interview, he informed defendant of his rights against self-incrimination and to counsel, as provided in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that defendant initialed and signed a written waiver of those rights, and that he stated "he was driving the station wagon[;] he didn't mean to ram the officers in their patrol car[; and] he was just trying to get away and basically that's it." Detective Kalendek asked defendant if he would provide a written statement but, at that point, "he was uncooperative and he was returned to his cell." On cross-examination, and over the prosecutor's objection, Detective Kalendek was asked if defendant "den[ied] being involved in the robbery." Detective Kalendek's reply was succinct: "Yes, he did." Defendant did not testify and he offered no witnesses in his defense.

At the close of the evidence, the trial court conducted a charge conference. The court suggested that, in light of the evidence presented, there was a rational basis on which to charge theft as a lesser included offense of robbery and defendant agreed. In addition, at defendant's request, the trial court agreed to charge simple assault as a lesser included offense of aggravated assault with a deadly weapon. Significantly, defendant never requested that the trial court charge the jury on hindering apprehension also as an included offense of or a related offense to robbery, and defendant never objected to the trial court's charge in respect of the crime of eluding. Specifically, after describing the six elements of the offense of third-degree eluding, including its mens rea element, the trial court charged the jury, in accordance with our Model Jury Instructions, as follows:

[T]hat would be a third degree eluding. To make it and grade the crime beyond that, the State must prove to you one additional element. That is as follows: That the flight or attempt to elude created a risk of death or injury to another person. Injury means physical pain, illness or any impairment of the physical condition.

For you to find this element you must determine that there was at least one person put at risk by the defendant's conduct including persons along the chase route. It could be police officers in chasing cars or persons in the eluding vehicle. You may infer a risk of death or injury to any person if the defendant's conduct in [fleeing] or attempting to elude the police involved a violation of the motor vehicle laws of this state.

....

It is not your job to determine whether he is guilty or not guilty of the motor vehicle offenses. However, you may consider the evidence that he committed a motor vehicle offense in deciding whether or not he created a risk of death or injury to people on the roadway. That is why [the description of applicable motor vehicle violations] is being given to you. Okay? At this same time remember that you are never required or compelled to draw this inference. As I have explained to you, it is your [province] to determine whether the facts and circumstances shown by the evidence support the inference. You are also free to accept or reject any inference that you wish.

If you find the State has proven beyond a reasonable doubt all seven elements, then your verdict should be one of guilty of the causing a risk of death or injury to people. Look at your verdict sheet for a moment. It is set up initially under eluding that would be the first six elements of the crime, guilty or not guilty. If a determination is guilty, you must decide the next issue. That grades the crime. The State must prove to you beyond a reasonable doubt as to the next issue, did he during the flight or attempt to elude the police create a risk of death or injury to another person, yes or no. Once again, all decisions you make must all [be] beyond a reasonable doubt. Okay?

Again, defendant did not object to this charge.

The jury acquitted defendant of either aggravated or simple assault, but convicted defendant of second-degree robbery, second-degree eluding, third-degree possession of a weapon (a motor vehicle) for an unlawful purpose, fourth-degree criminal mischief, fourth-degree resisting arrest, and third-degree receiving stolen property (the station wagon). On May 2, 2003, the trial court granted the State's motion for the imposition of a...