State v. Robinson

*52 O’HERN, J.

dissenting,

“In a long series of cases, we have held that an essential ingredient to a fair trial is that adequate and understandable instructions be given to the jury.” State v. Gartland, 149 N.J. 456, 475 , 694 A.2d 564 (1997). Gartland cited State v. Concepcion, 111 N.J. 373, 379 , 545 A.2d 119 (1988) for the well-settled proposition that an “instruction that is appropriate in one case may not be sufficient for another case. Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case.” This case is inconsistent with that principle.

I.

Edward Robinson was convicted of the robbery of three strangers, each of whom later identified him from a photo array as the robber. However, those identifications were far from trouble-free, and could have led a reasonable juror to doubt their accuracy. In attempting to “mold” the jury instruction to the facts of the ease, the trial court gave only an unbalanced focus on the aspects of the identification that were favorable to the State:

In order to meet its burden with respect to the identification of the individual who Committed the offenses the State has presented the testimony of several witnesses. You’ll recall they included Miss Santana, Mr. Power, and Miss Acosta. And you will recall that those three individuals testified in this courtroom and identified the defendant in this court as the person who committed the offense or offenses. According to the witnesses, them identification of the defendant in court is based upon the observations and perceptions which they made of the defendant on the scene at the time the offense or offenses were being committed.

No mention was made to the jury of the following facts: (1) that Miss Santana told police at first that the perpetrator was named “Eddie West,” not Eddie Robinson; (2) that Santana then told police a short time later that Gregory Marshall, not defendant, was the robber; (3) that Santana may have failed to pick defendant’s photograph from a police book (it is disputed whether defendant’s picture was in this book); (4) that Miss Acosta claimed that she was urged by Santana and Mr. Power to “sign the *53 picture” after they told her they had identified the perpetrator from a photo array. Nor was there ever any mention made, more generally, that the defense had elicited evidence of uncertainty and suggestiveness that would undermine the identifications.

II.

“Correct jury charges are essential for a fair trial.” State v. Martin, 119 N.J. 2, 15 , 573 A.2d 1359 (1990). A jury charge “is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations.” Ibid. “So critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error.” Ibid. An identification instruction in a case where identification is a contested issue is certainly a material point, one that is “a fundamental and essential trial issue.” State v. Green, 86 N.J. 281, 291 , 430 A.2d 914 (1981).

In Green , the Court first held that jury charges, particularly identification charges, must be molded to the facts with specific reference to the facts. Id. at 293-294 , 430 A.2d 914 . The Court ruled that an identification instruction would have passed muster:

if the court had specifically charged the jury that it was the State’s burden to prove beyond a reasonable doubt that it was defendant who had raped Ms. Wadley, that it was not defendant’s burden to prove that he was elsewhere when the offense occurred, and that the State’s ease depended on the eyewitness identification by Ms. Wadley, setting forth the respective factual contentions relative to her descriptions.

[Id. at 293, 430 A.2d 914 (emphasis supplied).]

As Green emphasized, even the pre-Green model jury instruction suggested to the trial court: “here consider briefly reviewing the conflicting contentions of the State and the defendants relating to the above.” Id. at 294 , 430 A.2d 914 .

After Green , we held that jury instructions, including those concerning areas beyond identification, should not simply recite the applicable law without reference to the facts. Concepcion, supra, 111 N.J. at 379 , 545 A.2d 119 . In Concepcion , the Court found plain error in a jury charge on manslaughter that failed *54 sufficiently to define recklessness in the context of the facts of the case. Id. at 379-380 , 545 A.2d 119 . Specifically, the jury instruction did not set forth all of the facts related to the defendant’s conduct that was relevant to a finding (or lack thereof) of recklessness. We held that the charge should have instructed the jury not only to consider that the defendant left a loaded gun on a bookshelf, but also his “bringing a group of people into his apartment, allowing them into the living room although a loaded gun was there, and ... the way he tried to wrestle it from the victim before the victim was shot.” Id. at 380 , 545 A.2d 119 . To reiterate, Concepcion requires that the instruction be molded “in a manner that explains the law to the jury in the context of the material facts of the case.” Id. at 379 , 545 A.2d 119 .

We have consistently adhered to the rule announced in Concepcion. In State v. Martin, 119 N.J. 2, 18 , 573 A.2d 1359 (1990), a causation charge was deemed plain error in a felony murder case because the court “failed to explain how the evidence could affect [the] elements [of ■causation.]” Citing Concepcion , the Court made clear that

Particularly when the trial projects conflicting versions of the facts, the court should mold its instructions to the factual hypotheses of the parties. An abstract statement about causation or the defendant’s state of mind is not nearly so useful as one stating the same idea in the context of the various factual alternatives projected by the parties.

[Ibid, (citations omitted).]

Similarly, an abstract reading of the model jury charge on identification is ineffective when compared to a charge that incorporates the law on identification with references to the various factual contentions in the case that bear on identification.

One year later, in State v. Olivio, 123 N.J. 550, 567 , 589 A.2d 597 (1991), we found reversible error in a jury instruction that “failed to provide an adequate explanation of the standard for determining ‘mentally defective’ ” as that phrase is defined in the sexual-assault statute with respect to a mentally-impaired victim. The Court stated that the “jury must be given an instruction that follows a correct legal standard of mental defectiveness and ex *55 plains that concept in context of the evidence that relates to the complainant’s mental condition and conduct.” Id. at 568 . Olivio reinforces the proposition that a jury instruction on a critical point (and nothing could be more critical than an instruction on identification when improper identification is the principal defense) must be molded with reference to the facts.

As recently as in 1997, this Court unanimously reaffirmed its commitment to the Concepcion doctrine in Gartland. In that case, the Court held that an explanation of self-defense and the doctrine of retreat should “have been tailored to the circumstances of the case.” Gartland, supra, 149 N.J. at 476 , 694 A.2d 564 . Without proper reference to the facts of the case that bore on self-defense and retreat, the jury might well have confused those issues. Ibid. Similarly, the generic, non-case-specific charge on identification in this ease left the jury with no feel for the practical aspects of applying the law of identification to the facts.

I agree that not every case omitting reference to facts warrants reversal under the plain error doctrine. State v. Jordan, 147 N.J. 409 , 688 A.2d 97 (1997) (holding that failure to give Kociolek charge, instructing jury not to give too much trust to accuracy .of testimony associated with any extrajudicial oral statements, did not have capacity to bring about unjust result). It is one thing however, not to tailor the identification charge to the facts of the case. It is quite another thing to give an unbalanced rendition of the facts. The State acknowledges that for the jurors the judge is an “authority figure.” When the most important person in the courtroom emphasizes the evidence favorable to the State, what is the jury to think? Consider that that is all that counts.

The Model Charge Committee has recently acknowledged that the trial judge, for purposes of clarity, may comment on evidence relevant to identification. 1 Model Jury Charges (Criminal), “Out- *56 of-Court Identification” (1999). Identification issues, by their very nature, are fact-specific. The Committee’s proposed change has furnished judges with a short list of the generally relevant factors and left space for trial courts to fill in the details. The list is not exhaustive or exclusive. This list of issues should be tailored to the facts.

Just as the explanation of recklessness in Concepcion was deficient because a general charge, simply parroting the model charge, could not approximate how the concept of recklessness might apply to that particular case, with all of its factual distinctions, and the explanation of self-defense in Gartland could not adequately address the peculiar facts of that battered woman’s case without reference to those facts and their bearing on self-defense, a generic charge setting forth the law of identification with no reference to the contrasting evidence of identification did not explain “the law to the jury in the context of the material facts of the case.” Concepcion, supra, 111 N.J. at 379 , 545 A.2d 119 .

The instruction in this case was deficient not only because it violated Green and its progeny, but because it also was biased in favor of the State. In State v. Walker, 322 N.J.Super. 535, 552 , 731 A.2d 545 (1999), the Appellate Division held that an instruction that highlights only the evidence favorable to the State is “misleading” and unfair to the criminal defendant. 2 Similarly, the *57 instruction in this case was misleading to the jury when the court stated “those three individuals testified in this courtroom and identified the defendant in this court as the person who committed the offense or offenses” with no mention that Miss Santana at first told the police that the perpetrator’s name was “Eddie West” and then “Gregory Marshall,” that she initially failed to pick defendant’s photograph from a police book, and that Miss Acosta claimed she was urged by Mr. Power and Miss Santana to “sign the picture” after they told her they had picked a perpetrator from the photo array.

This identification was far from ironclad; yet, it was presented to the jury as such. A jury instruction is said to be “a road map to guide the jury.” Martin, supra, 119 N.J. at 15 , 573 A.2d 1359 . In this case, the court’s instruction was as though the directions that accompanied the map gave only right-hand turns not the left-hand turns, a sure fire way to get someone lost. By explaining that the State bore the burden of proving identification and then highlighting only the State’s identification evidence, the court provided a good guarantee that the jury’s focus during its deliberation on the identification issue would be on the State’s evidence and not all the evidence. As it was plain error in Concepcion to define recklessness solely in terms of the defendant having left a loaded gun on a bookshelf without mentioning his attempts to wrestle it from the victim, it was plain error in this case to charge the jury on identification with reference only to the State’s evidence.

An unbalanced jury charge on identification in a case in which identity is the critical issue constitutes plain error clearly capable of producing an unjust result. Because defendant was denied a fair trial, I would reverse the judgment of the Appellate Division.

Justice LONG joins in this opinion.

*58 For affirmance — Chief Justice PORITZ and Justices STEIN, COLEMAN, VERNIERO and LaVECCHIA — 5.

For reversal — Justices O’HERN and LONG — 2.

The Model Charge Committee has suggested that the trial judge comment on the following factors concerning the issue of in-court or out-of-court identifications: (1) the witness’ opportunity to view the person who committed the offense *56 at the time of the offense; (2) the witness' degree of attention on the perpetrator when [he or she] observed the crime being committed.; (3) the accuracy of any description the witness gave prior to identifying the perpetrator; (4) the degree of certainty expressed by the witness in making the identification;^) the length of time between the witness' observation of the offense and the identification; (6) the circumstances under which the identification was made; (7) any other factor based on the evidence or lack of evidence in the case which [the juror] considers] relevant to [his or her] determination whether the in-court [or out-of-court] identification was reliable; or (8) any other relevant factor present in the case. Model Jury Charges (Criminal), "Out-of-Court Identification" and "In-Court Identification” (1999).

The Walker court responds to this problem by advising the trial court to give a generic model charge on identification that makes no reference to the facts. *57 This approach is entirely contrary to the holdings in Green, supra, Concepcion, supra, and Gartland, supra.