# State v. Fausto Camacho (072525)

> Supreme Court of New Jersey · August 5, 2014 · 218 N.J. 533

URL: https://www.frixlaw.com/law-library/cases/2708330

## Case

- **Full name:** State of New Jersey, Plaintiff-Appellant, v. Fausto Camacho, A/K/A Sparks, Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** August 5, 2014
- **Citations:** 218 N.J. 533; 95 A.3d 635; 2014 N.J. LEXIS 804; 2014 WL 3819161
- **Precedential status:** Published
- **Opinion:** Opinion by Fernandez
- **Judges:** Fernandez
- **Cited by:** 114 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2708330

## How later opinions describe it (automated extraction)

- holding that failure to give a no-adverse inference charge was harmless error because the jury was instructed that the defendant had no obligation to testify, and the State presented "overwhelming evidence" of guilt
- holding a court's inadvertent failure to give a Carter instruction was harmless in context of overwhelming evidence and repeated statements by the court and counsel concerning the State's burden and the defendant's right not to testify
- holding a trial court's failure to A-3507-18T2 13 instruct the jury regarding a defendant's election not to testify upon the defendant's request is "subject to the . . . harmless-error analysis"
- noting that structural error has been found "only in a very limited class of cases" and citing examples of constitutional deprivations warranting such treatment (internal quotation marks and citation omitted)

## Opinion text

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Fausto Camacho (A-30-13) (072525)

Argued May 6, 2014 -- Decided August 5, 2014

FERNANDEZ-VINA, J., writing for a unanimous Court.

The issue in this appeal is whether the trial court’s failure to provide a no-adverse-inference jury instruction
is a trial error that is amenable to the harmless-error doctrine, or a structural error that constitutes per se reversible
error.

On April 27, 2009, Derrick Blonski drove his blue Audi to a restaurant in Wallington. Before entering the
restaurant, Blonski turned off the engine but left the key in the ignition. At that time, Emil Baez was making repairs
to his vehicle in the same parking lot. Baez observed a light-colored Altima slowly pull into the parking lot. The
driver of the Altima exited the vehicle, peered into the Audi and gave a thumbs-up signal to the passenger who
remained in the Altima. According to Baez, the driver had a long beard and was wearing a white T-shirt. In
contrast, Baez described the passenger of the Altima as bald or having short hair. Subsequently, Baez heard a car
“peel out” of the parking lot and observed that both the Audi and Altima were gone. When Blonski saw that his
vehicle was missing, he called 9-1-1 and reported the vehicle stolen.

Approximately one hour later, Fair Lawn police officer Luis Vasquez saw an Audi being driven in a very
aggressive manner. Officer Vasquez pulled up next to the Audi and observed that the driver had a long beard and
was wearing a white T-shirt. He turned on the patrol car’s lights and siren. The Audi accelerated to 130 to 140
miles per hour, at which point Officer Vasquez abandoned the chase and radioed his location to the dispatcher.
Subsequently, Detective Joshin Smith of the Clifton Police Department took up the pursuit. While seeking to avoid
the pursuit, the driver of the Audi hit a curb, turned into a shopping center, struck a car, and stopped. The occupants
of the vehicle ran out of the car. Detective Smith observed that the driver, later identified as defendant, had a heavy
beard. Smith chased the defendant on foot, caught up to him, tackled him, and placed him under arrest.

On July 7, 2009, defendant was charged with third-degree theft, pursuant to N.J.S.A. 2C:20-3, and second-
degree eluding by fleeing from a police officer, pursuant to N.J.S.A. 2C:29-2(b). At trial, Detective Smith and
Officer Vasquez each identified defendant as the driver of the Audi in spite of the fact that at the time of trial,
defendant no longer had a beard. Baez, on the other hand, was unable to identify defendant with certainty.
Defendant did not testify or call any witnesses on his behalf at trial. As a result, the trial court asked defense
counsel whether he was requesting a no-adverse-inference instruction, or Carter charge. Carter v. Kentucky, 450
U.S. 288 (1981). Defense counsel answered affirmatively, and defendant expressly agreed with counsel’s statement.
However, the trial court failed to include the charge when instructing the jury. Defendant did not object when the
instructions were given.

The jury found defendant guilty of second-degree eluding, and acquitted him of third-degree theft by
unlawful taking. Defendant moved for a judgment notwithstanding the verdict. The trial court denied the motion.
At sentencing, defendant renewed his motion to set aside the verdict. The court again denied defendant’s motion.
On March 26, 2010, defendant was sentenced to a seven-year term of imprisonment.

On direct appeal, defendant argued that the trial court committed reversible error by failing to provide the
jury with a Carter instruction. Defendant further contended that the trial court erred in denying his motion to set
aside the verdict on the grounds that the verdict was against the weight of the evidence. In an unpublished opinion,
the Appellate Division held that the trial court erred when, after defendant requested the no-adverse-inference
charge, the court failed to instruct the jury that it could not draw an adverse inference from defendant’s failure to
testify. The panel concluded that the trial court’s failure to provide a no-adverse-inference jury instruction after a
defendant requests such an instruction is of such constitutional magnitude as to warrant automatic reversal and

1
remand for a new trial. The appellate panel did not consider defendant’s argument regarding his motion to set aside
the guilty verdict. The Supreme Court granted the State’s petition for certification. 216 N.J. 14 (2013).

HELD: The trial court’s failure to provide a no-adverse-inference jury instruction constitutes trial error, requiring a
harmless-error analysis, and does not mandate automatic reversal. In this case, the error was harmless.

1. The no-adverse-inference jury instruction, or Carter charge, is grounded on the Fifth Amendment privilege
against self-incrimination, applicable to the states through the Fourteenth Amendment. Although not specifically
provided for in the State Constitution, “the privilege itself ‘is firmly established as part of the common law of New
Jersey and has been incorporated into our Rules of Evidence.’” State v. Hartley, 103 N.J. 252, 260 (1986). A
defendant’s ability to invoke the privilege at trial -- generally by opting not to testify -- reflects the well-established
principle that the State is “constitutionally compelled to establish guilt by evidence independently and freely
secured, and may not by coercion prove a charge against an accused out of his own mouth.” Malloy v. Hogan, 378
U.S. 1, 8 (1964). (pp. 11-12)

2. The United States Supreme Court first addressed whether a jury charge violated a defendant’s Fifth and
Fourteenth Amendment rights against self-incrimination in a case where the trial court informed the jury that it was
permitted to draw an unfavorable inference from the defendant’s failure to testify. Griffin v. California, 380 U.S.
609 (1965). In Griffin, the Supreme Court set aside the defendant’s conviction and held that the trial court’s
instruction to the jury that it may draw an adverse inference from the defendant’s failure to testify was improper. In
Carter, supra, the Supreme Court held that the failure of a court to instruct a jury that it may not draw any adverse
inferences based on a defendant’s failure to testify is of constitutional dimension. This Court has consistently
mandated the trial court’s use of the Carter instruction when it is requested by a defendant. (pp. 12-17)

3. The United States Supreme Court divides federal constitutional errors into two categories: 1) trial errors, and 2)
structural errors. Arizona v. Fulminante, 499 U.S. 279 (1991). While it is well-established that the failure to
provide a requested Carter instruction is an error of constitutional dimension, neither this Court nor the United States
Supreme Court have addressed whether a trial court’s failure to issue a requested Carter instruction constitutes trial
error or structural error. A trial error is defined as an “error which occurred during the presentation of the case to the
jury,” and therefore may “be quantitatively assessed in the context of other evidence presented in order to determine
whether it was harmless beyond a reasonable doubt.” Id. at 307-08. A structural error, on the other hand, is a
“structural defect[] in the constitution of the trial mechanism, which def[ies] analysis by ‘harmless-error’ standards.”
Id. at 309-310. Such errors “are so intrinsically harmful as to require automatic reversal . . . without regard to their
effect on the outcome.” Neder v. United States, 527 U.S. 1, 7 (1999). (pp. 18-25)

4. A trial judge’s failure to provide the Carter instruction, on request, is undoubtedly of constitutional dimension.
However, the Court concludes that the failure to give a Carter instruction does not constitute a per se reversible
error. It is a trial error that has an effect that may “be quantitatively assessed in the context of other evidence
presented in order to determine whether it was harmless beyond a reasonable doubt.” Fulminante, supra, 499 U.S. at
307-08. The Court finds, therefore, that the failure to give a Carter instruction is subject to the harmless-error
analysis. (pp. 25-28)

5. The Court is satisfied that “in the context of other evidence,” the court’s inadvertent failure to give a Carter
instruction was “harmless beyond a reasonable doubt”; the results of the trial would have been the same if the
constitutional error had not been made. Fulminante, supra, 499 U.S. at 307-08. In light of the repeated statements
to the jury concerning the State’s burden and defendant’s constitutional right not to testify, as well as the
overwhelming evidence produced by the State, the trial court’s omission of the Carter instruction did not affect the
outcome of the trial or deprive defendant of a fair trial. Accordingly, the trial court’s inadvertent omission of the
Carter instruction was not “clearly capable of producing an unjust result” and was harmless. R. 2:10-2.

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate
Division for consideration of defendant’s motion to set aside the guilty verdict.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion. JUDGE CUFF
(temporarily assigned) did not participate.

2
SUPREME COURT OF NEW JERSEY
A-30 September Term 2013
072525

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

FAUSTO CAMACHO, a/k/a SPARKS,

Defendant-Respondent.

Argued May 6, 2014 – Decided August 5, 2014

On certification to the Superior Court,
Appellate Division.

Jenny M. Hsu, Deputy Attorney General,
argued the cause for appellant (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).

Susan Brody, Deputy Public Defender II,
argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney).

JUSTICE FERNANDEZ-VINA delivered the opinion of

the Court.

In this appeal, the State challenges the reversal of

defendant, Fausto Camacho’s, conviction for second-degree

eluding, contrary to N.J.S.A. 2C:29-2(b).

Defendant was charged with allegedly driving off with an

Audi A4 automobile that had been left outside a restaurant in

Wallington with the keys in the ignition. After the owner saw

3
that his vehicle was missing, he called 9-1-1 and reported the

vehicle stolen. Approximately one hour later, a Fair Lawn

police officer saw an Audi being driven in a very aggressive

manner. The officer turned on the patrol car’s lights and

siren, and began to chase. But the Audi accelerated to 130 to

140 miles per hour and the chase was abandoned. Subsequently, a

Clifton detective took up the pursuit. While seeking to avoid

the pursuit, the driver of the Audi hit a curb, turned into a

shopping center, struck a car, and stopped. The occupants of

the vehicle ran out of the car. The detective chased and

captured the driver, who is the defendant.

On July 7, 2009, defendant was charged with third-degree

theft of an Audi A4 automobile, pursuant to N.J.S.A. 2C:20-3,

and second-degree eluding by fleeing from a police officer,

pursuant to N.J.S.A. 2C:29-2(b). At the end of the trial, the

judge inadvertently failed to provide the jury with the no-

adverse-inference charge that was requested by defendant and his

counsel. Defense counsel did not object to the failure to

provide the requested charge. A jury found defendant not guilty

of third-degree theft, and guilty of second-degree eluding.

The Appellate Division held that the trial court erred

when, after defendant requested the no-adverse-inference charge,

the court failed to instruct the jury that it could not draw an

adverse inference from defendant’s failure to testify. The

4
panel concluded that the trial court’s failure to provide a no-

adverse-inference jury instruction after a defendant requests

such an instruction is of such constitutional magnitude as to

warrant automatic reversal and remand for a new trial.

The failure to provide the no-adverse-inference charge 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).

Accordingly, this Court has mandated the trial court’s use of

the no-adverse-inference instruction when requested at trial.

State v. Daniels, 182 N.J. 80 (2004).

We now address whether the failure to provide the charge is

a per se error requiring automatic reversal, or whether the

failure to provide the charge requires a harmless-error

analysis; see State v. Adams, 194 N.J. 186 (2008) (citing R.

2:10-2). This determination requires an analysis of whether the

failure to provide the charge is a trial error that is amenable

to the harmless-error doctrine, or a structural error that

constitutes per se reversible error.

We disagree. For reasons that follow, we conclude that

when there is a failure to provide the no-adverse-inference

charge, the error constitutes trial error and does not mandate

automatic reversal. In this case, we find that the error was

harmless. Accordingly, we reverse the judgment of the Appellate

Division.

5
I.

On April 27, 2009, between 9:00 a.m. and 10:00 a.m.,

Derrick Blonski drove his blue Audi to a restaurant in

Wallington. Before entering the restaurant to place a food

order, Blonski turned off the engine but left the key in the

ignition. At that time, Emil Baez was making repairs to his

vehicle in the same parking lot. Baez observed a light-colored

Altima slowly pull into the parking lot. The driver of the

Altima exited the vehicle, peered into the Audi and gave a

thumbs-up signal to the passenger who remained in the Altima.

According to Baez, the driver had a long beard and was wearing a

white T-shirt. In contrast, Baez described the passenger of the

Altima as bald or having short hair. Subsequently, Baez heard a

car “peel out” of the parking lot and observed that both the

Audi and Altima were gone.

While waiting for his food order, Blonski stepped out of

the restaurant to smoke a cigarette, noticed that his vehicle

was missing, and called 9-1-1 to report it. Later that morning,

at approximately 11:15 a.m., Fair Lawn Police Officer Luis

Vasquez was driving his police vehicle on Route 21 when he

observed a blue Audi “cutting off other vehicles [and] almost

causing accidents.” Officer Vasquez was accompanied in his

patrol vehicle by Auxiliary Police Chief Nick Magiarelli.

6
Officer Vasquez pulled up next to the Audi and observed that the

driver had a long beard and was wearing a white T-shirt.

The Audi accelerated, passing Officer Vasquez and nearly

causing Officer Vasquez’s vehicle to crash into a concrete

divider. Officer Vasquez decided to attempt a motor vehicle

stop and, therefore, turned on his lights and siren. Auxiliary

Chief Magiarelli called police headquarters to report the Audi’s

license plate number and give a description of the vehicle. The

Audi began to accelerate quickly to a speed of approximately 130

to 140 miles per hour. Officer Vasquez determined that it was

too dangerous to continue the pursuit. Accordingly, he

terminated it and radioed his location to the dispatcher.

Detective Joshin Smith of the Clifton Police Department

received a radio communication advising officers to be on the

lookout for the blue Audi. Approximately five minutes later,

Detective Smith observed a vehicle matching the dispatcher’s

description on River Road and began to pursue it. While in

pursuit, Detective Smith reported the sighting to the dispatcher

and radioed in the license plate number of the vehicle. The

dispatcher confirmed that the blue Audi was the suspect vehicle.

At this time, the Audi began to accelerate rapidly. Detective

Smith turned on his lights and siren to signal the driver to

pull over. The driver of the Audi ignored the signal and

quickly proceeded down an entrance ramp onto Route 3 where the

7
Audi’s rear tire struck a curb. The vehicle’s tire began to

lose air pressure as a result of the impact. Nevertheless, the

driver continued to drive erratically onto an area of the

highway where several roads merged. The driver then went over a

curb, slid down a grassy grade and into a shopping center

parking lot, where the Audi struck a parked vehicle.

As the vehicle slowed, Detective Smith observed two

individuals, one from the driver’s seat and one from the front

passenger’s seat, open their respective doors, exit the vehicle,

and begin to run. Detective Smith pursued the driver who later

was identified as defendant. During the pursuit, Detective

Smith observed that the driver had a heavy beard. Detective

Smith also observed that “the passenger was taller than the

defendant with a thin build, a low haircut and no beard.” Smith

chased the defendant on foot, caught up to him in a ravine

behind the shopping center, tackled him, and placed him under

arrest. Another officer brought defendant into police

headquarters.

A.

A Bergen County grand jury returned an indictment

charging defendant with third-degree theft of a motor vehicle,

8
N.J.S.A. 2C:20-3, and second-degree eluding, N.J.S.A. 2C:29-

2(b).1

At trial, Detective Smith and Officer Vasquez testified on

behalf of the State. They each identified defendant as the

driver of the Audi in spite of the fact that at the time of

trial, defendant no longer had a beard. Baez, on the other

hand, was unable to identify defendant with certainty. He

maintained, however, that the person whom he witnessed exit the

Altima and give the thumbs up had a beard.

Defendant did not testify or call any witnesses on his

behalf at trial. As a result, the trial court asked defense

counsel whether he was requesting a no-adverse-inference

instruction, or Carter2 charge, based on his client’s decision

not to testify at trial. Defense counsel answered

affirmatively, and defendant expressly agreed with counsel’s

statement.3

However, the trial court failed to include the charge when

instructing the jury. Defendant did not object when the

instructions were given. After the trial judge completed his

charge to the jury, he specifically asked the attorneys whether

1
Initially, due to a clerical error, the second-degree eluding
charge was mistakenly identified as a third-degree offense in
the indictment.
2
Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d
241 (1981).
3
The trial court also had defendant and his counsel sign a form
reflecting their decision.
9
there were any exceptions to the charge. Defense counsel

replied, “No. Thank you, Judge.”

The jury found defendant guilty of second-degree eluding,

and acquitted him of third-degree theft by unlawful taking.

Defendant moved for a judgment notwithstanding the verdict,

arguing that the verdict was against the weight of the evidence

because there had been an insufficient showing that Detective

Smith properly identified defendant as the driver of the Audi

during the chase. The trial court denied the motion but allowed

defendant to renew his application prior to sentencing.

At sentencing, defendant renewed his motion to set aside

the verdict. The court denied defendant’s motion. On March 26,

2010, defendant was sentenced to a seven-year term of

imprisonment.

On direct appeal, defendant argued that the trial court

committed reversible error by failing to provide the jury with a

Carter instruction. Defendant maintained that the failure to

provide a Carter instruction should not be analyzed under the

harmless-error rule because of its constitutional significance.

Defendant further contended that the trial court erred in

denying his motion to set aside the verdict on the grounds that

the verdict was against the weight of the evidence.

In an unpublished opinion, the Appellate Division reversed

defendant’s conviction and remanded for a new trial. Its

10
decision was based on the trial court’s failure to charge the

jury that it could not draw an adverse inference from

defendant’s failure to testify, despite defendant’s request for

the charge.4 The appellate panel recognized “that although ‘some

constitutional errors may be harmless, . . . others are of such

constitutional magnitude that they are always reversible

error.’” (quoting State v. Fusco, 93 N.J. 578, 587 (1983)). It

then concluded that “[t]he 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.’”

(quoting State v. Haley, 295 N.J. Super. 471, 477 (App. Div.

1996)).

In reaching its decision, the Appellate Division rejected

the State’s reliance on State v. Oliver, 133 N.J. 141 (1993), as

support for its argument that the defective jury charge was

harmless. The panel noted that although the Court in Oliver

applied the harmless-error standard when the trial court refused

to give the no-adverse-inference charge, it only did so “because

the dissenting Appellate Division judge had determined that the

error was harmless.” (citing Oliver, supra, 133 N.J. at 160).

Nevertheless, the panel concluded that “[e]ven if we were to

4
The Appellate Division reversed and remanded based on
defendant’s Carter-related argument; it did not consider
defendant’s argument regarding his motion to set aside the
guilty verdict. It stated: “As defendant will receive a new
trial, we need not address his second argument.”
11
evaluate this error under the harmless-error standard, we cannot

say that the failure of the judge to give the charge was

harmless-error.”

We granted the State’s petition for certification. State

v. Camacho, 216 N.J. 14 (2013).

II.

The State argues that the Appellate Division improperly

reversed defendant’s conviction. In particular, the State

contends that the Appellate Division erroneously created a rule

of per se reversal for a trial court’s inadvertent omission of

the no-adverse-inference charge.

While the State concedes that the trial court was obligated

to give the Carter instruction to the jury after defense counsel

requested it, it maintains that a trial court’s inadvertent

omission of the no-adverse-inference charge cannot be considered

structural error subject to automatic reversal. Rather, the

error is a trial error that is subject to harmless-error

analysis.

Defendant, on the other hand, argues that the Appellate

Division correctly determined that the trial court committed

reversible error by failing to include the Carter instruction in

its jury charge. Defendant points to Haley, supra, and

maintains that the Carter instruction is of such significant

12
constitutional dimension that a trial court’s failure to give

the instruction should always qualify as reversible error.

III.

The no-adverse-inference jury instruction, or Carter

charge, is grounded on the Fifth Amendment privilege against

self-incrimination. The Fifth Amendment to the United States

Constitution provides, in pertinent part, that “[n]o person . .

. shall be compelled in any criminal case to be a witness

against himself.” U.S. Const. amend. V. That provision, which

is known as the privilege against self-incrimination, is

applicable to the states through the Fourteenth Amendment. See

Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed.

2d 653, 658 (1964); State v. Knight, 183 N.J. 449, 461 (2005);

State v. Hartley, 103 N.J. 252, 260 (1986). “Although we have

no similar provision in our New Jersey Constitution, the

privilege itself ‘is firmly established as part of the common

law of New Jersey and has been incorporated into our Rules of

Evidence.’” Hartley, supra, 103 N.J. at 260 (quoting In re

Martin, 90 N.J. 295, 331 (1982)); see also State v. Reed, 133

N.J. 237, 250 (1993) (“In New Jersey, the right against self-

incrimination is founded on a common-law and statutory –- rather

than a constitutional –- basis.”); N.J.R.E. 501 to 503

(articulating the privilege against self-incrimination and its

exceptions).

13
Ultimately, the privilege against self-incrimination

protects “‘the right of a person to remain silent unless he

chooses to speak in the unfettered exercise of his own free

will, and to suffer no penalty . . . for such silence.’” State

v. P.Z., 152 N.J. 86, 100-02 (1997) (quoting Malloy, supra, 378

U.S. at 8, 84 S. Ct. at 1493, 12 L. Ed. 2d at 659). “A person

invoking the privilege against self-incrimination may do so ‘in

any . . . proceeding, civil or criminal, formal or informal,

where the answers might tend to incriminate him in future

criminal proceedings.’” Ibid. (quoting Minnesota v. Murphy, 465

U.S. 420, 426, 104 S. Ct. 1136, 1141, 79 L. Ed. 2d 409, 418

(1984)). A defendant’s ability to invoke the privilege at trial

–- generally by opting not to testify –- reflects the well-

established principle that the State is “constitutionally

compelled to establish guilt by evidence independently and

freely secured, and may not by coercion prove a charge against

an accused out of his own mouth.” Malloy, supra, 378 U.S. at 8,

84 S. Ct. at 1493, 12 L. Ed. 2d at 659.

A.

The United States Supreme Court first addressed whether a

jury charge violated a defendant’s Fifth and Fourteenth

Amendment rights against self-incrimination in a case where the

trial court informed the jury that it was permitted to draw an

unfavorable inference from the defendant’s failure to testify.

14
Griffin v. California, 380 U.S. 609, 610, 85 S. Ct. 1229, 1230,

14 L. Ed. 2d 106, 107 (1965). There, the trial court’s jury

instruction explained that “a defendant has a constitutional

right not to testify,” but nevertheless stated that

[a]s to any evidence or facts against him
which the defendant can reasonably be
expected to deny or explain because of facts
within his knowledge, if he does not testify
or if, though he does testify, he fails to
deny or explain such evidence, the jury may
take that failure into consideration as
tending to indicate the truth of such
evidence and as indicating that among the
inferences that may be reasonably drawn
therefrom those unfavorable to the defendant
are the more probable.

[Ibid. (emphasis added).]

The Supreme Court set aside the defendant’s conviction and

held that the trial court’s instruction to the jury that it may

draw an adverse inference from the defendant’s failure to

testify was improper. The Court observed that

comment on the refusal to testify is a
remnant of the inquisitorial system of
criminal justice, . . . which the Fifth
Amendment outlaws. It is a penalty imposed
by courts for exercising a constitutional
privilege. It cuts down on the privilege by
making its assertion costly. It is said,
however, that the inference of guilt for
failure to testify as to facts peculiarly
within the accused’s knowledge is in any
event natural and irresistible, and that
comment on the failure does not magnify that
inference into a penalty for asserting a
constitutional privilege. . . . What the
jury may infer, given no help from the
court, is one thing. What it may infer when

15
the court solemnizes the silence of the
accused into evidence against him is quite
another.

[Id. at 614, 85 S. Ct. at 1232-33, 14 L. Ed.
2d at 109-10 (internal quotation marks and
citations omitted).]

In a footnote, the Griffin Court explicitly stated that it would

“reserve decision on whether an accused can require . . . that

the jury be instructed that his silence must be disregarded.”

Id. at 615 n.6, 85 S. Ct. at 1233 n.6, 14 L. Ed. 2d at 110 n.6.

Subsequently, in Lakeside v. Oregon, 435 U.S. 333, 334, 98

S. Ct. 1091, 1092, 55 L. Ed. 2d 319, 321 (1978), the Court again

addressed the Fifth Amendment right against self-incrimination

in the context of jury instructions for a defendant who elected

not to testify. In Lakeside, defense counsel objected to the

trial court’s issuance of a “no-adverse-inference” instruction

based on his strategy to avoid “any mention of the fact that the

defendant had not testified.” Id. at 341, 98 S. Ct. at 1095, 55

L. Ed. 2d at 326. The defendant argued that “the instruction

infringed upon [] his constitutional privilege not to be

compelled to incriminate himself.” Id. at 336, 98 S. Ct. at

1093, 55 L. Ed. 2d at 323. The Court rejected this argument,

noting that “[b]y definition, ‘a necessary element of compulsory

self-incrimination is some kind of compulsion.’” Id. at 339, 98

S. Ct. at 1093, 55 L. Ed. 2d at 325 (quoting Hoffa v. United

16
States, 385 U.S. 293, 304, 87 S. Ct. 408, 414, 17 L. Ed. 2d 374,

383 (1966)).

The Lakeside Court concluded that the Fifth and Fourteenth

Amendments bar a court from instructing a jury that they may

draw an adverse inference, but that the rule was inapplicable to

the reverse situation. Ibid. The Court emphasized that “a

judge’s instruction that the jury must draw no adverse

inferences of any kind from the defendant’s exercise of his

privilege not to testify is ‘comment’ of an entirely different

order.” Ibid.

The Court stated that “[s]uch an instruction cannot provide

the pressure on a defendant found impermissible in Griffin.”

Ibid. Rather, “its very purpose is to remove from the jury’s

deliberations any influence of unspoken adverse inferences. It

would be strange indeed to conclude that this cautionary

instruction violates the very constitutional provision it is

intended to protect.” Ibid. The Court also noted that the

defendant’s argument rested on two very doubtful assumptions:

First, that the jurors have not noticed that
the defendant did not testify and will not,
therefore, draw adverse inferences on their
own; second, that the jurors will totally
disregard the instruction, and affirmatively
give weight to what they have been told not
to consider at all.

[Id. at 340, 98 S. Ct. at 1095, 55 L. Ed. 2d
at 325-26.]

17
The Court concluded that “[f]ederal constitutional law cannot

rest on speculative assumptions so dubious as these.” Ibid.

Notably, the Court explicitly declined to reach the issue of

whether a trial court must provide a no-adverse-inference

instruction to the jury when requested to do so by a defendant.

Id. at 337, 98 S. Ct. at 1093, 55 L. Ed. 2d at 324.

This issue, however, was addressed fifteen years later in

Carter, supra. In Carter, a trial court refused a defendant’s

request to instruct the jury that it may not draw an adverse

inference from the defendant’s election not to testify at trial.

Id. at 290, 101 S. Ct. at 1114, 67 L. Ed. 2d at 244. The Court

held that the failure of a court to instruct a jury that it may

not draw any adverse inferences based on a defendant’s failure

to testify is of constitutional dimension. Id. at 305, 101 S.

Ct. at 1122, 67 L. Ed. 2d at 254. Specifically, the Court

stated that

[t]he principles enunciated in our cases
construing this privilege, against both
statutory and constitutional backdrops, lead
unmistakably to the conclusion that the
Fifth Amendment requires that a criminal
trial judge must give a ”no-adverse-
inference” jury instruction when requested
by a defendant to do so.

[Id. at 300, 101 S. Ct. at 1119, 67 L. Ed.
2d at 251.]

18
Because “[j]urors are not experts in legal principles,” the

Court concluded that “to function effectively, and justly, they

must be accurately instructed in the law.” Ibid.

Such instructions are perhaps nowhere more
important than in the context of the Fifth
Amendment privilege against compulsory self-
incrimination, since ”[too] many, even those
who should be better advised, view this
privilege as a shelter for wrongdoers. They
too readily assume that those who invoke it
are . . . guilty of crime . . . .”

[Ibid. (quoting Ullman v. United States, 350
U.S. 422, 426, 76 S. Ct. 497, 500, 100 L.
Ed. 511, 518 (1956)).]

This Court has consistently mandated the trial court’s use

of the Carter instruction when it is requested by a defendant.

In Daniels, supra, 182 N.J. at 90, the Court held that the

“trial court, on request, must instruct the jury that it may

draw no negative inferences from [a] defendant’s silence” at

trial. Additionally, in State v. Brunson, 132 N.J. 377, 385

(1993), we held that although a defendant’s “silence may suggest

to the jury that the defendant has something to hide,” this

concern “may be tempered by the trial court’s instruction to the

jury that it should not draw an adverse inference from a

defendant’s silence.”

IV.

While it is well-established that the failure to provide a

requested Carter instruction is an error of constitutional

19
dimension, neither this Court nor the United States Supreme

Court have addressed whether a trial court’s failure to issue a

requested Carter instruction constitutes trial error or

structural error. We must now determine whether the trial

judge’s inadvertent failure to provide the Carter instruction

was harmless.

The United States Supreme Court in Chapman v. California,

386 U.S. 18, 22, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705, 709

(1967), noted that “there may be some constitutional errors

which in the setting of a particular case are so unimportant and

insignificant that they may, consistent with the Federal

Constitution, be deemed harmless, not requiring the automatic

reversal of the conviction.” However, the Court also recognized

that “there are some constitutional rights so basic to a fair

trial that their infraction can never be treated as harmless-

error.” Id. at 23, 87 S. Ct. at 827, 17 L. Ed. 2d at 710; see

also Fusco, supra, 93 N.J. at 587.

The Court divides federal constitutional errors into two

categories: 1) trial errors, and 2) structural errors. Arizona

v. Fulminante, 499 U.S. 279, 307, 309, 111 S. Ct. 1246, 1263,

1265, 113 L. Ed. 2d 302, 330, 331 (1991).

A.

A trial error is defined as an “error which occurred during

the presentation of the case to the jury,” and therefore may “be

20
quantitatively assessed in the context of other evidence

presented in order to determine whether it was harmless beyond a

reasonable doubt.” Id. at 307-08, 111 S. Ct. at 1264, 113 L.

Ed. 2d at 330; see also State v. Macon, 57 N.J. 325, 338 (1971)

(describing the test as “whether in all the circumstances there

was a reasonable doubt as to whether the error denied a fair

trial and a fair decision on the merits”).

The Supreme Court has emphasized that “most constitutional

errors can be harmless,” and are therefore not subject to

automatic reversal. Fulminante, supra, 499 U.S. at 306, 111 S.

Ct. at 1263, 113 L. Ed. 2d at 329; see also Hedgpeth v. Pulido,

555 U.S. 57, 61, 129 S. Ct. 530, 532, 172 L. Ed. 2d 388, 392

(2008) (stating that “‘while there are some errors to which

[harmless-error analysis] does not apply, they are the exception

and not the rule’”) (quoting Rose v. Clark, 478 U.S. 570, 578,

106 S. Ct. 3101, 3106, 92 L. Ed. 2d 460, 470 (1986))). The

Court further stressed that

[i]n applying harmless-error analysis to
these many different constitutional
violations, the Court has been faithful to
the belief that the harmless-error doctrine
is essential to preserve the principle that
the central purpose of a criminal trial is
to decide the factual question of the
defendant’s guilt or innocence, and promotes
public respect for the criminal process by
focusing on the underlying fairness of the
trial rather than on the virtually
inevitable presence of immaterial error.

21
[Fulminante, supra, 499 U.S. at 308, 111 S.
Ct. at 126, 113 L. Ed. 2d at 330 (internal
quotation marks and citation omitted).]

The Court has addressed whether the harmless-error rule is

applicable in the context of the Fifth Amendment. Chapman,

supra, involved comments made by a prosecutor regarding a

defendant’s failure to testify at trial, which, at that time,

was permitted by a state constitutional provision. 386 U.S. at

19, 87 S. Ct. at 825, 17 L. Ed. 2d at 707. The Court determined

that the state provision violated the Constitution, and

affirmatively rejected the application of a per se rule

requiring automatic reversal. Id. at 20-22, 87 S. Ct. at 826-

27, 17 L. Ed. 2d at 708-09. Accordingly, the Court applied a

harmless-error analysis and concluded “it is completely

impossible for us to say that the State has demonstrated, beyond

a reasonable doubt, that the prosecutor’s comments and the trial

judge’s instruction did not contribute to petitioners’

convictions.” Id. at 26, 87 S. Ct. at 829, 17 L. Ed. 2d at 711.

Similarly, in United States v. Hasting, 461 U.S. 499, 502-

03, 103 S. Ct. 1974, 1977, 76 L. Ed. 2d 96, 102 (1983), the

issue was whether a trial court erred in denying the defendants’

motion for a mistrial after the prosecutor made impermissible

comments in summation regarding the defendants’ election not to

testify at trial. The Court determined that the trial court’s

error in allowing the comments was harmless beyond a reasonable

22
doubt based on the record in its entirety and the overwhelming

evidence of the defendants’ guilt. Id. at 512, 103 S. Ct. at

1982, 76 L. Ed. 2d at 108. The Court, referring to its previous

decision in Chapman, supra, stated that it had “recognized that,

given the myriad safeguards provided to assure a fair trial, and

taking into account the reality of the human fallibility of the

participants, there can be no such thing as an error-free,

perfect trial . . . [T]he Constitution does not guarantee such a

trial.” Id. at 508-09, 103 S. Ct. at 1981, 76 L. Ed. 2d at 106.

B.

A structural error, on the other hand, is a “structural

defect[] in the constitution of the trial mechanism, which

def[ies] analysis by ‘harmless-error’ standards.” Fulminante,

supra, 499 U.S. at 309-10, 111 S. Ct. at 1265, 113 L. Ed. 2d at

331. It “affect[s] the framework within which the trial

proceeds, rather than simply an error in the trial process

itself.” Id. at 310, 111 S. Ct. at 1265, 113 L. Ed. 2d at 331;

see also State v. Purnell, 161 N.J. 44, 61 (1999) (recognizing

that “a structural error affects the legitimacy of the entire

trial, rather than an isolated error that occurs during a

certain part of the trial process and does not contaminate the

trial as a whole”).

The United States Supreme Court has found structural error

to exist “only in a very limited class of cases.” Johnson v.

23
United States, 520 U.S. 461, 468, 117 S. Ct. 1544, 1549, 137 L.

Ed. 2d 718, 728 (1997). Such errors “are so intrinsically

harmful as to require automatic reversal . . . without regard to

their effect on the outcome.” Neder v. United States, 527 U.S.

1, 7, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35, 46 (1999).

In Chapman, supra, the Court specifically noted three

constitutional errors that could not be categorized as harmless

and would thus call for automatic reversal of a conviction: (1)

using a coerced confession against a defendant in a criminal

trial; (2) depriving a defendant of counsel; and (3) trying a

defendant before a biased judge. 386 U.S. at 42-43, 87 S. Ct.

at 837, 17 L. Ed. 2d at 721.

Since the Court’s decision in Chapman, other errors have

been classified as structural errors, including “unlawful

exclusion of members of the defendant’s race from a grand jury,

. . . [violation of] the right to self-representation at trial .

. . and [violation of] the right to public trial.” Fulminante,

supra, 499 U.S. at 309-10, 111 S. Ct. at 1264-65, 113 L. Ed. 2d

at 331 (internal citation omitted). Most recently, the Court in

United States v. Gonzalez-Lopez, 548 U.S. 140, 148-49, 126 S.

Ct. 2557, 2563-64, 165 L. Ed. 2d 409, 419-20 (2006), articulated

additional structural defects, including “the denial of the

right to trial by jury by the giving of a defective reasonable-

24
doubt instruction,” and the right of a non-indigent defendant

“to be assisted by counsel of one’s choice.”

V.

Importantly, the United States Supreme Court has not

characterized the failure to provide a jury instruction as a

structural defect. “Accurate and understandable jury

instructions in criminal cases are essential to a defendant’s

right to a fair trial.” State v. Concepcion, 111 N.J. 373, 379

(1988). In the context of jury instructions, the United States

Supreme Court has acknowledged “that harmless-error analysis

applies to instructional errors so long as the error at issue

does not categorically ‘vitiat[e] all the jury’s findings.’”

Hedgpeth, supra, 555 U.S. at 60-61, 129 S. Ct. at 532, 172 L.

Ed. 2d at 391-92 (quoting Neder, supra, 527 U.S. at 11, 119 S.

Ct. at 1834, 144 L. Ed. 2d at 48).

With respect to a court’s failure to instruct the jury on

the presumption of innocence, the Court applied a harmful error

standard in Kentucky v. Whorton, 441 U.S. 786, 99 S. Ct. 2088,

60 L. Ed. 2d 640 (1979). In Whorton, defendant’s counsel

requested that the jury be instructed on the presumption of

innocence. Id. at 787, 99 S. Ct. at 2089, 60 L. Ed. 2d at 642.

The trial judge refused to give the instruction. Ibid.

However, as noted by the Court, the trial judge gave an

instruction “to the effect that the jury could return a verdict

25
of guilty only if they found beyond a reasonable doubt that the

respondent had committed the acts charged in the indictment with

the requisite criminal intent.” Ibid.

Relying on its understanding of Taylor v. Kentucky, 436

U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978), the Kentucky

Supreme Court held that a presumption-of-innocence instruction

was “constitutionally required in all criminal trials, and that

the failure of a trial judge to give it cannot be harmless-

error.” Whorton, supra, 441 U.S. at 787, 99 S. Ct. at 2088, 60

L. Ed. 2d at 642 (citing Whorton v. Commonwealth, 570 S.W.2d 627

(Ky. 1978)).

The United States Supreme Court granted certiorari. Ibid.

It recognized that in Taylor, it had reversed a criminal

conviction that resulted from a trial in which the judge had

refused to give a requested jury instruction on the presumption

of innocence. Id. at 788-89, 99 S. Ct. at 2089-90, 60 L. Ed. 2d

at 643. However, the Court emphasized that its decision was

fact-specific and its “opinion focused on the failure to give

the instruction as it related to the overall fairness of the

trial considered in its entirety.” Id. at 788, 99 S. Ct. at

2089, 60 L. Ed. 2d at 643.

The Whorton Court declared that “the failure to give a

requested instruction on the presumption of innocence does not

in and of itself violate the Constitution.” Id. at 789, 99 S.

26
Ct. at 290, 60 L. Ed. 2d at 643. Rather, the prejudicial effect

of the failure to give a requested instruction on the

presumption of innocence

must be evaluated in light of the totality
of the circumstances -- including all the
instructions to the jury, the arguments of
counsel, whether the weight of the evidence
was overwhelming, and other relevant factors
-- to determine whether the defendant
received a constitutionally fair trial.

[Ibid.; see State v. Marshall, 123 N.J. 1,
145 (1991), cert. denied, 507 U.S. 929, 113
S. Ct. 1306, 122 L.Ed. 2d 694 (1993).]

The Court ultimately reversed the judgment and remanded for a

“determination of whether the failure to give such an

instruction in the present case deprived the respondent of due

process of law in light of the totality of the circumstances.”

Id. at 790, 99 S. Ct. at 2090, 60 L. Ed. 2d at 643-44.

VI.

A trial judge’s failure to provide the Carter instruction,

on request, is undoubtedly of constitutional dimension.

However, with the aforementioned principles in mind, we agree

with the State and conclude that the failure to give a Carter

instruction does not constitute a per se reversible error. It

is a type of error that concerns the evidentiary value the jury

may give to a defendant’s election not to testify on his or her

own behalf. Therefore, it is a trial error that has an effect

that may “be quantitatively assessed in the context of other

27
evidence presented in order to determine whether it was harmless

beyond a reasonable doubt.” Fulminante, supra, 499 U.S. at 307-

08, 111 S. Ct. at 1264, 113 L. Ed. 2d at 330. Furthermore, a

Carter instruction is not required in every criminal trial; it

is merely available if a defendant so requests. Carter, supra,

450 U.S. at 305, 101 S. Ct. at 1122, 67 L. Ed. 2d at 254.

We find that the failure to give a Carter instruction is

therefore subject to the Chapman harmless-error analysis.

A.

Here, the Appellate Division held the opposite, and

concluded that the failure to provide the Carter instruction is

a per se reversible error.

In reaching its decision, the panel interpreted this

Court’s opinion in Oliver, supra. In Oliver, supra, 133 N.J. at

149, the Court applied a harmless-error analysis when, contrary

to defendant’s request, the trial judge refused to provide the

jury with a Carter instruction and told him it was “‘too late.’”

The Court heard the case as an appeal as of right based on a

dissent in the Appellate Division decision. Id. at 145.

Although both the majority and the dissent agreed that the

trial court erred in refusing defendant’s request, their

opinions differed on whether or not the error was harmless. Id.

at 159-60. Contrary to the majority, the dissenting judge

28
considered the failure to instruct on defendant’s decision not

to testify to be harmless-error. Id. at 145, 160.

In its opinion, this Court explicitly stated that

“[b]ecause both the majority and dissent agreed that the trial

court's refusal to give the charge was error, the issue of the

propriety of that refusal (as opposed to its harmfulness) is not

before us on appeal.” Id. at 160. Accordingly, the Court

“confine[d] [its] consideration to the position of the dissenter

below that the refusal amounted to harmless-error.” Ibid. The

Oliver Court then stated that “[g]iven the gravity of charges

and the severity of the sentence exposure, we agree with the

majority below that the error was not harmless.” Ibid. (citing

Carter, supra, 450 U.S. at 303, 101 S.Ct. at 1120, 67 L.Ed. 2d

at 252).

The appellate panel in this case noted that the Oliver

Court applied the harmless-error standard “only because the

dissenting Appellate Division judge had determined that the

error was harmless.” We reject the Appellate Division’s

conclusion that this Court applied a legal standard merely

because the Appellate Division decision it was reviewing applied

that same standard.

Additionally, contrary to the panel’s statement, the

dissenter was not the only member of the appellate panel that

reached the conclusion that the harmless-error rule applied to a

29
Carter violation. Both the majority and dissenting opinions

agreed that the harmless-error rule was applicable. Oliver,

supra, 133 N.J. at 159-60. The disagreement between the

majority and dissent was limited to whether the Carter violation

was actually harmless beyond a reasonable doubt based on the

specific facts in the record. Ibid.

B.

The Appellate Division also relied on Haley, supra, a case

factually similar to this one. In Haley, although the pro se

defendant requested the Carter charge, and the judge agreed to

provide the instruction, the judge inadvertently omitted it.

Haley, supra, 295 N.J. Super. at 475. Neither the defendant nor

his standby counsel alerted the court to the missing charge.

Id. at 477. The appellate panel concluded that the failure to

provide a jury instruction on the defendant’s election not to

testify when requested by the defense was reversible error,

despite the failure to object. Ibid. It stated that “the 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).

Insofar as Haley stands for the proposition that all

failures to provide the Carter instruction require reversal, we

overturn Haley.

30
C.

In this case, because defendant did not object to the

court’s failure to instruct the jury on the requested charge,

and even acquiesced to the failure, we consider this issue under

the plain error rule. R. 2:10-2. Therefore, we may reverse

only if the unchallenged error was “clearly capable of producing

an unjust result.” R. 2:10-2. In the context of jury

instructions, plain error is “‘[l]egal 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.”

Id. at 207 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)

(citations omitted)).

From our examination of the record, we find that the trial

court’s inadvertent failure to give a Carter instruction was

harmless. We are satisfied that “in the context of other

evidence,” the error was “harmless beyond a reasonable doubt”;

the results of the trial would have been the same if the

constitutional error had not been made. Fulminante, supra, 499

U.S. at 307-08, 111 S. Ct. at 1264, 113 L. Ed. 2d at 330.

Here, despite the judge’s failure to provide the Carter

instruction, the record reveals that considering the trial in

its entirety, the judge’s omission did not deprive defendant of

31
a fair trial. Both the court’s instructions and counsel’s

statements provided the jury with the functional equivalent of

the Carter instruction. They explained the State’s burden to

the jurors and informed them that defendant had no obligation to

testify. See State v. Burris, 145 N.J. 509, 531 (1996)

(recognizing presumption that juries understand and abide by

court instructions).

Moreover, the State presented overwhelming evidence that

defendant was the driver of the blue Audi when it eluded police.

Although at the time of trial defendant no longer had a beard,

both Detective Smith and Officer Vasquez testified and

identified defendant as the driver of the Audi. Most

significantly, Detective Smith testified that he arrested

defendant after observing him exit the driver’s side door of the

vehicle.

In light of the repeated statements to the jury concerning

the State’s burden and defendant’s constitutional right not to

testify, as well as the overwhelming evidence produced by the

State, the trial court’s omission of the Carter instruction did

not affect the outcome of the trial or deprive defendant of a

fair trial. Accordingly, the trial court’s inadvertent omission

of the Carter instruction was not “clearly capable of producing

an unjust result” and was harmless. R. 2:10-2.

VII.

32
The judgment of the Appellate Division is reversed and the

matter is remanded to that court for consideration of the

remaining issue raised by defendant that the panel did not

reach.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, and JUDGE RODRÍGUEZ (temporarily assigned) join in
JUSTICE FERNANDEZ-VINA’s opinion. JUDGE CUFF (temporarily
assigned) did not participate.

33
SUPREME COURT OF NEW JERSEY

NO. A-30 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

FAUSTO CAMACHO, a/k/a SPARKS,

Defendant-Respondent.

DECIDED August 5, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Fernandez-Vina
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) --------------------- --------------------
TOTALS 6

1

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2708330. Public record. Not legal advice.