State v. Raymond Daniels(073504) , 224 N.J. 168 ( 2016 )

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 of New Jersey v. Raymond Daniels (A-90-13) (073504)
Argued October 7, 2015 -- Decided February 10, 2016
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, in the context of a trial record that included evidence establishing an incomplete affirmative
defense, the Court considers the circumstances under which a trial court may instruct a jury on an affirmative
defense over a defendant’s objections.
In early 2009, detectives from the Asbury Park and Neptune Police Departments identified James Fairley as
a suspect in three Monmouth County bank robberies. Following his arrest, Fairley confessed to all three robberies
and implicated purported accomplices, including defendant Raymond Daniels, who Fairley claimed assisted him in
writing the ransom note used in the first two robberies. Fairley explained that defendant gave him a writing pad and
made suggestions on what to write. In exchange for the help, Fairley gave defendant some heroin and a few
hundred dollars. Fairley asserted that defendant never accompanied him to any of the robberies. Defendant denied
participation in the robberies but admitted to providing Fairley with the writing pad and making content suggestions.
Defendant explained that, at the time, the two men were using heroin together in his room. He confirmed that
Fairley gave him some heroin, but was emphatic that it was not provided as payment for assisting with the note.
Defendant was charged with second-degree conspiracy to commit robbery and two counts of second-degree robbery.
At defendant’s trial, Fairley testified that he wrote one ransom note on defendant’s pad while they were
using intravenous heroin and watching television. However, contrary to his statement to police, Fairley insisted that
defendant never suggested any content for the note, and that, although he gave defendant heroin, he did not give him
money as reimbursement for his help. Fairley also testified that defendant repeatedly reiterated his desire not to be
involved in the robberies. The State introduced portions of Fairley’s contradictory police interview, but Fairley
insisted that he was experiencing heroin withdrawal during the interrogation and had divulged incriminating
evidence against defendant in order to gain leniency and admission to a detox program. Defendant did not testify,
but his statements to police were introduced into evidence.
In light of the potential confusion arising from defendant’s statements to police and Fairley’s testimony, the
State sought a jury instruction on the affirmative defense of renunciation. Defense counsel objected since he had
neither raised the affirmative defense during trial nor requested its inclusion at the jury charge conference. Counsel
further asserted that it was impossible for defendant to meet the element of renunciation requiring that he have
thwarted the crime, and that it was inconsistent with the defense’s overall contention that defendant never intended
to participate in the robberies at any point.
Despite counsel’s repeated objections, the court instructed the jury that, if it found that the State proved the
conspiracy and robbery charges beyond a reasonable doubt, it should consider whether defendant met the elements
of the affirmative defense of renunciation. The court explained renunciation in detail, noting that, in order to find it,
the jury needed to be satisfied by a preponderance of the evidence that defendant thwarted or caused to be thwarted
the commission of the offense. The jury found defendant guilty as an accomplice to the first robbery, but not guilty
as an accomplice to the second robbery or of conspiracy to the commit the robberies. On September 2, 2010,
defendant was sentenced to a ten-year prison term, with an eighty-five percent period of parole ineligibility.
Defendant appealed, contending that the trial court’s decision to issue the renunciation charge prejudiced
his defense. The Appellate Division affirmed in an unpublished decision. It found that the trial court appropriately
tailored the charge, noting that it did not charge the jury that defendant had the burden of proving renunciation. The
Court granted defendant’s petition for certification to address the issue of whether it was proper for the trial court to
have given a jury charge on the affirmative defense of renunciation. 217 N.J. 588 (2014).
HELD: In the context of a trial record that contains evidence of an incomplete affirmative defense and where the
potential for jury confusion exists, a trial court may, over a defendant’s objections, issue a modified jury charge on
the affirmative defense in order to elucidate legal principles pertinent to the evidence. In so doing, the court must
balance the need to educate the jury and the need to protect the defendant’s rights. Here, the trial court’s affirmative
defense charge on renunciation unfairly prejudiced the defense, requiring reversal and remand for a new trial.
1. Renunciation is an affirmative defense to accomplice liability under which an actor is not guilty if he proves, by a
preponderance of the evidence, that he abandoned his efforts to commit the crime or otherwise prevented its
commission. Although the bar is slightly higher, renunciation also is a defense to conspiracy, requiring that, after
conspiring to commit the crime, the co-conspirator informed the authorities about the conspiracy and thwarted the
crime or caused the crime to be thwarted. In both instances, the renunciation must be complete and voluntary. (pp.
13-15)
2. In State v. Walker, 203 N.J. 73 (2010), the Court determined that even if defense counsel does not request an
affirmative defense charge, it should still be given when the evidence clearly indicates that it is appropriate. In State
v. R.T., 205 N.J. 493 (2011), the Court addressed the question of instructing the jury on an affirmative defense
despite the defendant’s objection. There, the Appellate Division found that a charge should only be given over
defendant’s objection where the facts clearly indicate its appropriateness. A three-justice concurrence agreed,
finding that the evidence in R.T. was insufficient to support the affirmative defense, and emphasizing that
affirmative defenses should not generally be imposed on unwilling defendants. (pp. 16-20)
3. Courts deciding whether to charge an affirmative defense must conduct a fact-sensitive, case-by-case analysis.
R.T. identified a number of factors for courts to consider when the record contains evidence supporting such a
charge, including whether counsel is surprised, how the case was tried, whether the affirmative defense is
incompatible with defendant’s trial position, or whether the instruction would prejudice the defense. However, R.T.
did not address how a court should approach a situation like the one here where the trial narrative imperfectly
matches an affirmative defense but also may contain facts that a jury might not understand how to evaluate unless
provided with an explanation of legal factors relating those disputed facts to both the elements of the crime and the
affirmative defense. In those circumstances, it behooves the court to articulate a way for the jury to evaluate the
facts as they have been developed through competing presentations. Although a defense should not typically be
interposed on a defendant against his wishes, a trial court is not limited to the stark choice between giving an
affirmative defense charge over a defendant’s objection, or no instruction at all. Instead, legal guidance that bears
on a jury’s proper assessment of the State’s and defense’s proofs can be conveyed without resort to the affirmative
defense framework. This approach is particularly suited for accomplice liability cases. (pp. 20-23)
4. Where the criminal trial record presents evidence of an imperfect or incomplete affirmative defense, the court
must consider both the need to educate the jury on how to evaluate the evidence from a legal perspective and the
need to protect the defendant’s rights and not undermine his defense. When not all of the elements of an affirmative
defense are present and a defendant objects to the charge, a court should assess: (1) the nature and extent of the
evidence before the jury; (2) the risk of jury confusion; and (3) the factors identified in R.T. Following this
assessment, the court may conclude that it is appropriate to issue a modified affirmative defense jury charge
instructing the jury on all important legal concepts relating to liability under the charged crimes. (pp. 23-25)
5. Here, the Court is compelled to reverse defendant’s conviction. The renunciation instruction foisted on
defendant an affirmative defense that he did not want and could not meet. In the form in which it was delivered, it
unfairly prejudiced his trial strategy by undermining his true defense, which was that he never intended to conspire,
aid, or assist in the crimes. Nonetheless, the record presented evidence of an incomplete set of facts viewed from the
perspective of the affirmative defense of renunciation. Specifically, the jury heard evidence suggesting that
defendant was an accomplice, but also suggesting that defendant wanted nothing to do with the robberies. Thus, in
assessing the factual record, the court could reasonably conclude that there was a substantial risk of jury confusion
unless the jury was told that, in the event it found that defendant’s intent matched Fairley’s intent to commit the
crimes, abandonment alone was insufficient for acquittal based on renunciation. A limited charge to that effect
would have informed the jury without being incompatible with defendant’s position at trial. However, rather than
such a streamlined instruction, the given charge tracked renunciation principles in full, leaving defendant to combat
an unwanted affirmative defense that was inconsistent with his defense. This approach was confusing and sent
mixed messages to the jury instead of elucidating principles pertinent to the evidence. Consequently, the charge as
given prejudiced the defense. (pp. 25-27)
The judgment of the Appellate Division is REVERSED, defendant’s conviction is REVERSED, and the
matter is REMANDED to the trial court for further proceedings.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.
2
SUPREME COURT OF NEW JERSEY
A-90 September Term 2013
073504
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAYMOND DANIELS, a/k/a
RAYMOND DANIELSS, TOOKIE
DANIELS, RAYMOND DANIELLS,
Defendant-Appellant.
Argued October 7, 2015 – Decided February 10, 2016
On certification to the Superior Court,
Appellate Division.
Brian P. Keenan, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Mary R. Juliano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Christopher J.
Gramiccioni, Acting Monmouth County
Prosecutor, attorney).
Ian C. Kennedy, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (John J. Hoffman,
Acting Attorney General, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
In this appeal, we consider whether the trial court erred
in instructing the jury about the affirmative defense of
renunciation. Defendant Raymond Daniels was charged with
1
conspiracy and as an accomplice to certain robberies. Defendant
did not request a renunciation charge and did not want one.
There is no dispute that the facts necessary to satisfy the
statutory elements of that affirmative defense were not present.
The robberies were not thwarted. They were committed, but by a
co-defendant.
Based on the State’s evidence, the co-defendant’s initial
statement to police implicated defendant as a participant in the
crimes’ planning stage. However, at trial, that co-defendant
testified differently, and favorably for the defense strategy
that defendant never wanted any part in the robberies being
planned and executed by the co-defendant. The State
successfully importuned the trial court to charge the jury on
renunciation as a curb against potential jury confusion --
namely, that the jury would not know how to evaluate evidence it
heard regarding defendant’s alleged involvement in preparations
for the robberies, despite his claim that he did not want to be
involved. In opposing that request, defendant maintained that
he should be the master of his defense, except in limited
circumstances, and that nothing in this case justified foisting
on him an affirmative defense that he claimed undermined his
defense strategy.
At bottom, this appeal is about how courts should go about
educating juries. When evidence of an imperfect or incomplete
2
defense is presented, there are twin concerns to consider: (1)
the need to educate the jury about how to evaluate, from a legal
perspective, evidence it has heard, in keeping with both the
court’s responsibility to administer the justice system and the
jury’s truth-finding function; and (2) the need to protect a
defendant’s rights and to not undermine the defense that has
been advanced at trial. It is not enough to simply determine
that all elements of an affirmative defense are not present.
With this opinion, we identify considerations that should govern
a trial court when confronted with situations such as occurred
here. We are compelled to reverse defendant’s conviction and
remand for a new trial consistent with the guidance provided in
this opinion.
I.
We glean the following facts from the testimony and
evidence presented at defendant’s trial, which included
statements made by defendant and the principal participant in
the robberies, co-defendant James Fairley, during police
interviews.
Between January and February 2009, detectives from the
Asbury Park and Neptune Police Departments (detectives)
investigated three bank robberies that had occurred in
relatively rapid succession in Monmouth County. The first took
place on January 14, 2009, at PNC Bank in Asbury Park; the
3
second on January 22, 2009, at First Atlantic Credit Union in
Neptune (First Atlantic Bank); and the third on February 12,
2009, at TD Bank North in Neptune. Through their investigation,
detectives obtained surveillance videos that were used to
identify a suspect, Fairley, who was located and arrested in
Atlantic City.
While being interviewed by detectives, Fairley confessed to
committing all three robberies. However, he also implicated
purported accomplices, including defendant, in an attempt to
obtain leniency and to secure admission into a detox program
prior to being sent to jail. Specifically, Fairley stated
during his interview that defendant assisted him in writing the
ransom notes used in the first two robberies. According to
Fairley, defendant gave him a writing pad and advised him that
an effective ransom note demands large bills and threatens the
teller. Fairley stated that, in exchange for defendant’s
assistance, Fairley gave him some heroin that the two had
purchased and a few hundred dollars. It is undisputed that
defendant never accompanied Fairley to any of the robberies.
After Fairley implicated defendant as an accomplice,
detectives questioned defendant. Defendant denied any
participation in the three robberies but did admit to providing
Fairley with the writing pad and making a few suggestions about
the content of the ransom note, such as “no dye money.” That
4
occurred while he and Fairley were using heroin together in
defendant’s room. Defendant corroborated Fairley’s allegation
that it was defendant who went to buy heroin for the pair and
that Fairley gave some of that heroin to defendant. However,
defendant was emphatic that the heroin was owed to him by
Fairley and that it was not provided to him as a payment for
assisting with the ransom note. Throughout the interview,
defendant maintained that he never intended to participate in
any of the robberies and that he repeatedly expressed to Fairley
his unwillingness to participate in them.
After the interview, defendant was arrested and charged, in
connection with two of the robberies, with second-degree
conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:1-
1 (count one); and two counts of second-degree robbery, N.J.S.A.
2C:15-1 (counts two and three). Prior to defendant’s trial,
Fairley pleaded guilty to all three robberies and agreed to
testify about defendant’s involvement in two of them. Defendant
did not testify at trial, but his statements to detectives were
introduced into evidence.
Fairley was called as a State’s witness. He testified that
he wrote one ransom note on defendant’s writing pad while the
two were using heroin intravenously and watching television in
defendant’s room. Just as he had told detectives during his
pretrial interview, Fairley testified that defendant did not
5
accompany him to any of the three robberies; however, this time
Fairley stated that defendant was conversing only about the
television show while Fairley was writing the note and that
defendant did not actually suggest any content to include in the
note. Fairley also testified that he gave defendant heroin, but
he denied ever giving defendant money as reimbursement for
assisting with the ransom note. Furthermore, Fairley
highlighted the numerous occasions and statements in which
defendant had reiterated his desire not to be involved in the
robberies. Because part of Fairley’s testimony was inconsistent
with what he had said in his pretrial interview, the State
introduced into evidence portions of Fairley’s statement to
police. When confronted with those earlier statements, Fairley
defended the truthfulness of his trial testimony, stating that
he was experiencing heroin withdrawal during his interrogation
and explaining that he had divulged incriminating evidence
against his purported accomplice in an effort to gain leniency
in the form of being admitted to a detox program.
At the jury charge conference, the State asked the court to
instruct the jury on the affirmative defense of renunciation for
all three charges. The State argued that defendant’s statements
to police, as well as Fairley’s testimony about defendant not
wanting to be involved with the robberies, would be confusing
for the jury. The State expressed concern that the jury might
6
view those statements as exculpatory but would not have the
legal principles of renunciation to guide it in its assessment
of that evidence.
Defense counsel strenuously objected to the charge on
renunciation because he had neither raised the affirmative
defense during the trial nor requested that it be included at
the jury charge conference. Further, defense counsel argued
that renunciation was inconsistent with its overall contention
that defendant never intended to participate in the robberies at
any point. Importantly, defense counsel argued that it was
impossible for defendant to meet the element of renunciation
that requires defendant to thwart the crime. Because the crimes
occurred, defendant clearly did not thwart them, a fact that the
trial court acknowledged. Over defense counsel’s repeated
objections, the trial court issued a charge incorporating
language on the affirmative defense of renunciation.
In its instruction to the jury, the trial court stated that
it was the State’s burden to prove the conspiracy and robbery
charges beyond a reasonable doubt, and if the jury found that
the State met that proof requirement, then it should consider
whether defendant met the elements of the affirmative defense of
renunciation. The trial court first explained the renunciation
principles for the conspiracy charge:
7
Even if you are satisfied and find beyond
a reasonable doubt that [defendant] committed
the crime of conspiracy as alleged in the
indictment, you must nevertheless find him not
guilty if you find that afterwards he informed
the authorities of the existence of the
conspiracy, including his participation in it,
and that he was thereby successfully thwarting
or causing to be thwarted, that is, the
preventing or causing to be prevented the
commission of any offense in furtherance of
the conspiracy. In order to find [defendant]
not guilty of conspiracy based upon a
renunciation as I have defined it here, you
must be satisfied that the circumstances of
his going to the authorities manifested a
voluntary and complete renunciation of his
criminal purpose.
The presence of a renunciation does not
have to be established to your satisfaction
beyond a reasonable doubt. Instead, a lesser
standard of proof is what’s required. You
must find renunciation, if you are satisfied
by a preponderance of the evidence or the
greater weight of the evidence that
[defendant] renounced the alleged crime in the
manner in which the law required it as I have
defined.
Then, after explaining the elements and burdens for accomplice
liability, the trial court explained renunciation for robbery:
Even if you are satisfied and find beyond
a reasonable doubt that [defendant] committed
the crime of robbery as an accomplice as
alleged in the indictment, you must
nevertheless find him not guilty of that
offense if you find it is more likely than not
that he renounced his involvement by doing the
following: Terminating his complicity under
circumstances manifesting a complete and
voluntary renunciation of the crime prior to
the commission of the offense, under the legal
standard which I just described to you.
8
The presence of a renunciation as I have
defined it does not have to be established to
your satisfaction beyond a reasonable doubt.
Instead a lesser standard of proof is what is
required. You can find renunciation if you
are satisfied by a preponderance of the
evidence or the greater weight of the evidence
that [defendant] renounced the alleged crime
of robbery as an accomplice.
On the second day of jury deliberations, the jury found
defendant guilty as an accomplice to the first robbery committed
at PNC Bank (count two), N.J.S.A. 2C:15-1. The jury found
defendant not guilty as an accomplice on count three with
respect to the second robbery at First Atlantic Bank, and also
not guilty on count one as to conspiracy to commit both
robberies.1 On September 2, 2010, the trial court sentenced
defendant to a ten-year prison term, with an eighty-five percent
period of parole ineligibility under the No Early Release Act,
N.J.S.A. 2C:43-7.2.
Defendant appealed, arguing that the trial court’s decision
to issue the renunciation charge prejudiced his defense.2
Specifically, defendant contended that the court erred in
charging the jury on the affirmative defense because it was not
1 The jury heard conflicting statements about whether defendant
had any involvement in the second robbery. At trial, Fairley
testified that he wrote the ransom note for the second robbery
himself, without defendant’s input or awareness. Fairley
initially told detectives that defendant helped in composing the
notes for both robberies.
2 A second argument advanced is not relevant to this appeal.
9
possible for defendant to meet the elements of renunciation as
he did not take any affirmative steps to prevent the commission
of the crime, let alone successfully thwart the crime. The
Appellate Division affirmed defendant’s conviction in an
unpublished opinion. Critical to the panel’s analysis was that,
in its view, the trial court “tailored the charge” and “declined
to charge the jury that defendant had the burden of proving
renunciation.” The panel determined that there was sufficient
evidence in the record to justify the renunciation charge, and
that, when viewed in its totality, the charge neither prejudiced
defendant nor unfairly impinged on his defense strategy.
We granted defendant’s petition for certification to
address the issue of whether it was proper for the trial court
to have given a jury charge on the affirmative defense of
renunciation. State v. Daniels, 217 N.J. 588 (2014). We also
granted amicus curiae status to the New Jersey Attorney General
(Attorney General).
II.
A.
Defendant argues that issuance of a jury charge on the
affirmative defense of renunciation, over the objection of
defendant, is contrary to this Court’s direction in State v.
Walker, 203 N.J. 73 (2010). Defendant cites Walker’s
proposition that when a defendant requests an affirmative
10
defense, the trial court should provide the charge if the record
provides a rational basis for doing so; on the other hand, if
counsel does not request the affirmative defense, the court
should issue a charge on the affirmative defense sua sponte only
if all of the elements of the affirmative defense are clearly
indicated by the evidence. Defendant points to State v. R.T.,
205 N.J. 493 (2011), as further support for his argument that a
“clearly indicated” standard was applicable in his circumstances
because he did not request the disputed affirmative defense
charge. Under either a rational basis or clearly indicated
standard, defendant contends it was error for the trial court to
have given a renunciation charge because he plainly could not
satisfy all elements of the affirmative defense.
According to defendant, the court mischaracterized his
statements about not wanting to participate in the robbery as
indicative of an attempted renunciation. By coloring those
statements with the renunciation affirmative defense
instruction, defendant claims that the charge given by the court
prejudiced him. Defendant’s trial defense maintained that he
did not intend to join in the robberies that Fairley committed.
The affirmative defense, defendant says, presumes complicity in
the robberies and therefore undermines that defense.
B.
11
The State concedes that it was impossible for defendant to
meet the elements of renunciation and that the trial court was
aware of this impossibility. However, the State argues that the
charge nonetheless was proper because the trial court
appropriately sought to provide the jury with guidance on how to
evaluate defendant’s potentially confusing statements about his
desire not to participate in the robberies. Instead of allowing
the jury to formulate its own theory about renunciation and what
it requires, the State maintains that the trial court provided
pertinent information on the legal concept to avoid any
confusion. The State contends that using the renunciation
charge for that purpose was reasonable because the jury could
plausibly conclude from the trial testimony that defendant
agreed to accompany Fairley to the robberies but then changed
his mind.
Importantly, the State asserts that charging the jury with
renunciation did not prejudice defendant because the trial court
did not tell the jury that defendant had raised or requested the
charge, and the trial court did not charge that defendant had
the burden to prove renunciation. The State further contends
that there was no prejudice because the trial court told the
jury it could use the information about defendant not wanting to
participate in the robbery for any purpose.
C.
12
Amicus curiae, the Attorney General, argues that the
renunciation charge was proper because, absent that guidance to
the jury, there was too great a risk of confusion about
defendant’s statements that he did not want to be involved with
the robberies and the jury could have reached its verdict based
on speculation, misunderstanding, or confusion. If defendants
were allowed to plant the seeds of an affirmative defense in the
jurors’ minds without the court actually explaining the legal
principles of such a defense, the Attorney General contends that
would allow for gamesmanship. The Attorney General asserts that
defendant’s narrative thread clearly implicated the renunciation
defense, and at every opportunity. The Attorney General
contends that there was no prejudice to defendant because the
trial court molded the jury instructions to the facts, and lack
of prejudice is evident from defendant’s acquittal on the
robbery count involving First Atlantic Bank and on the count of
conspiracy to commit robbery.
III.
As this case requires examination of the impact of the
renunciation charge provided in defendant’s trial, we begin with
the basic principles of renunciation.
Renunciation is an affirmative defense to accomplice
liability. N.J.S.A. 2C:2-6(e)(3) and 2C:5-1(d). Under
accomplice liability, the accomplice is “guilty of the same
13
crime committed by the principal if he shares the same criminal
state of mind as the principal.” State v. Whitaker, 200 N.J.
444, 458 (2009). In accomplice liability cases, the jury must
be instructed on the necessary findings of a shared intent
between accomplice and principal and that the accomplice
directly or indirectly participated or assisted in the
commission of the criminal act. State v. Bielkiewicz, 267 N.J.
Super. 520, 528 (App. Div. 1993). However, under the defense of
renunciation, an actor is not guilty of accomplice liability if
he proves, by a preponderance of the evidence, that he abandoned
his efforts to commit the crime or otherwise prevented its
commission. N.J.S.A. 2C:2-6(e)(3). But, renunciation is not
complete when mere abandonment does not prevent the commission
of the crime. N.J.S.A. 2C:5-1(d). In such a case, defendant
must take affirmative steps to successfully prevent the
commission of the crime. Ibid.Renunciation is also a defense to conspiracy, although it
has a slightly higher bar. A renunciating co-conspirator must
prove, by a preponderance of the evidence, that after conspiring
to commit the crime, he subsequently informed the authorities
about the conspiracy and therein thwarted the crime or caused
the crime to be thwarted. N.J.S.A. 2C:5-2(e). In both
accomplice liability and conspiracy, the renunciation must be
complete and voluntary. N.J.S.A. 2C:5-1(d) and 2C:5-2(e). “To
14
be voluntary, the abandonment of criminal conduct must reflect a
change in the defendant’s purpose or a change of mind that is
not influenced by outside circumstances.” State v. Alston, 311
N.J. Super. 113, 121 (1998). “To be complete the abandonment
must be permanent, not temporary or contingent. And, of course,
the claimed renunciation must have resulted in avoidance of the
crime.” Id. at 121-22.
In the instant case, we must determine whether the trial
court erred in instructing the jury, over defense counsel’s
objections, on the affirmative defense of renunciation when
requested to do so by the State. Appropriate and proper charges
to a jury are essential for a fair trial. State v. Savage, 172
N.J. 374, 387 (2002). That said, what is at stake here is not
simply whether a jury instruction was omitted, was improperly
molded to the facts, or was erroneously delivered. Were any of
those the complained-of errors here, we would be guided by the
normal standard that “erroneous [jury] instructions on material
issues are presumed to be reversible error.” State v. Marshall,
173 N.J. 343, 359 (2002). Instead, we have the unusual
circumstance of a jury having been instructed on an affirmative
defense that defendant did not assert, did not want, and argued
was in conflict with his defense. With that in mind, we turn to
the matter at hand.
IV.
15
The State, defendant, and the Attorney General seek to find
support for their respective positions in this Court’s past
decisions that have addressed circumstances in which this Court
identified a trial court’s duty to instruct on an affirmative
defense in the absence of any request by the defendant.
Chiefly, two cases feature in the arguments made in this appeal.
In Walker, supra, we set forth a standard for a trial court
to use when defense counsel requests an affirmative defense,
namely that the trial court should provide the requested charge
on the affirmative defense when there is a rational basis to do
so based on the evidence. 203 N.J. at 86-87 (applying lesser-
included offense principles and citing State v. Denofa, 187 N.J.
24, 42 (2006)). However, we further stated that if defense
counsel does not request the charge, the court should still give
it when the evidence clearly indicates that it is appropriate.
Id. at 87. The facts in Walker explain the Court’s reason for
providing guidance for such sua sponte court instructions on
non-requested affirmative defenses.
In Walker, the defendant was charged with multiple crimes,
including first-degree murder, stemming from his involvement in
a robbery. Id. at 77. While the defendant and another co-
defendant carried out the robbery, the victim of the crime was
murdered. Id. at 78-79. At trial, the defendant testified that
he never intended to rob the victim. Id. at 81. He further
16
stated that he had punched the victim only once in self-defense
and then waited for approximately five minutes, while in a state
of shock, as his co-defendant beat the victim. Id. at 80-81.
The defendant contended that he never saw a weapon being used
and that he ran from the house before the victim was dead. Id.
at 81. On appeal, we held that it was error for the trial court
not to have sua sponte charged the jury on the statutory
affirmative defense to felony murder, because there was evidence
in the record pertaining to each of the elements of the
affirmative defense. Id. at 89.3 Plainly, in the context of a
defendant who is arguing on appeal that he should have received
the benefit of an affirmative defense that was overlooked at
trial, the test of examining for “some evidence” of the elements
of the affirmative defense in order to justify the claim of
error is appropriate. See ibid. That was the proper quantum of
proof necessary to justify a claim of error advanced by a
defendant who lost the opportunity of benefiting from the
affirmative defense. Ibid. A different and more complicated
calculus pertains when reviewing a trial record for factual
3 That said, we determined in the context of that appeal that the
error did not constitute plain error requiring a new trial; the
error was not clearly capable of producing an unjust result
because the defendant had also been convicted of conspiracy,
robbery, reckless manslaughter, and possession of a knife. Id.
at 90-91. Based on those other convictions, this Court inferred
that the jury had “found against defendant on most, if not all,
of the four prongs of the [affirmative] defense.” Id. at 90.
17
support for an affirmative defense that defendant did not
request and may have actively opposed.
The following year we considered such circumstances in
R.T., supra, where the issue was whether a trial judge erred by
charging the jury, sua sponte, with a voluntary intoxication
instruction over defense counsel’s objection. 205 N.J. at 493.
Although our Court issued two opinions on the judgment in R.T.,
four justices concurred in the reasoning of Justice Long’s
concurrence, which agreed with the Appellate Division’s judgment
and utilized a clearly indicated standard when examining for the
factual presentation of an affirmative defense that was not
requested by counsel. Id. at 509. The appeal required a
careful, fact-specific analysis, which merits repeating.
The defendant in R.T. was charged with, and convicted of,
various sexual assault offenses for abusing his nephew. Id. at
494. During the defendant’s initial interview with police, he
told detectives that he might have assaulted his nephew, but if
he did, it was because he was intoxicated at the time of the
assaults. Id. at 495-97. Later at trial, the defendant
completely denied assaulting his nephew and claimed that the
incriminating statements made to police were a result of
coercion. Id. at 499. The defendant’s prior inconsistent
statements were admitted into evidence, and the court raised
whether the jury should be charged on the affirmative defense of
18
intoxication, noting that the record contained evidence about
the defendant drinking while possibly committing the assaults.
Id. at 501-02. Defense counsel objected, arguing that such a
charge would be inconsistent with the defense. Id. at 501-03.
The court decided to instruct the jury on the affirmative
defense of intoxication over defense counsel’s objection. Id.
at 505.
On appeal, the defendant challenged the trial court’s
intoxication instruction, and in a published opinion the
Appellate Division reversed and remanded the case for retrial,
stating that a charge should be given over a defendant’s
objection “only where the facts in evidence ‘clearly indicate’
the appropriateness of that charge.” State v. R.T., 411 N.J.
Super. 35, 48 (App. Div. 2009). The matter was appealed as of
right to this Court based on a dissent by a member of the
appellate panel. See R. 2:2-1(a)(2).
A three-justice concurrence allowed to stand the Appellate
Division judgment that the intoxication charge was improper and
prejudicial, and that it entitled the defendant to a new trial.
R.T., supra, 205 N.J. at 514-15 (Long, J., concurring). The
concurrence stated that the defendant’s references to drinking
were vague and too attenuated to the actual crimes, and
concluded that the evidence was simply insufficient to support
an intoxication affirmative defense. Id. at 513. The Chief
19
Justice concurred in that analysis, but dissented from the
Appellate Division judgment that had granted a new trial because
he viewed the error as harmless. Id. at 515 (Rabner, C.J.,
concurring in part, dissenting in part). Two Justices
dissented; they agreed with the reasoning of the appellate panel
member’s dissent, and concluded that the intoxication
instruction was neither prejudicial nor improper. Id. at 517(Rivera-Soto & Hoens, J.J., dissenting).
Thus, although the Court in R.T. was split evenly on the
judgment, four justices, or a majority of the Court, agreed with
the analysis set forth in Justice Long’s concurrence. That
opinion highlighted the potential danger of issuing an
affirmative defense over defense counsel’s objection, and
emphasized that “[i]n general . . . an affirmative defense
should not be imposed on an unwilling defendant.” Id. at 511(Long, J., concurring). Justice Long’s concurrence added that
“[i]t goes without saying that a defendant who denies having
committed a crime should not be required to acknowledge, either
explicitly or inferentially, complicity in the event by way of a
compelled affirmative defense.” Ibid.Importantly, the majority in R.T. identified a list of
factors for courts to consider when the record contains evidence
to support charging the jury on an affirmative defense. Id. at
510. Those factors include “whether counsel is surprised, how
20
the case was tried, whether the defense is incompatible with
defendant’s position at trial, or whether the instruction would
prejudice the defense in some way.” Ibid. Although the factors
were derived from principles involved in determining whether to
charge a jury on lesser-included offenses, R.T. recognized that
unlike lesser-included offenses, which have public policy
implications,4 affirmative defenses generally are more
problematic because they have, “at their core, the notion that a
defendant has indeed committed the interdicted act but that he
should be excused from its consequences.” Id. at 510-11 (citing
State v. Harmon, 104 N.J. 189, 209 (1986)). Ultimately, R.T.
cautioned that a trial court’s decision whether to charge the
jury with an affirmative defense is fact-sensitive, requiring
“case-by-case analysis.” Id. at 511.
We do not agree with defendant that R.T. and other case law
requires that the analysis in this matter begin, and end, with
the threshold inquiry of whether the affirmative defense of
renunciation was clearly indicated on this record. That
approach misstates R.T.’s required nuanced analysis. R.T.
contemplated more than a matching of facts to the elements of a
4 See State v. Powell, 84 N.J. 305, 319 (1980) (acknowledging
that when record facts “would justify a conviction of a certain
charge, the people of this State are entitled to have that
charge rendered to the jury, and no one’s strategy, or assumed
(even real) advantage can take precedence over that public
interest”).
21
clearly indicated affirmative defense in order to assess whether
a trial court’s duty to inform and educate jurors in their
truth-seeking function has been satisfied. It called for a
case-specific analysis. And it did not declare that if a single
element of an affirmative defense is not satisfied, the court’s
duty to educate the jury evaporates.
R.T. did not address how a court should approach a trial
narrative that imperfectly, or incompletely, matches an
affirmative defense but nonetheless may contain factual strands
that a jury might not know how to evaluate unless the court
provides an explanation of legal factors that relate those
disputed facts to both the elements of the crime and the
elements of the affirmative defense. In such situations, it
behooves the court, with the participation of trial counsel, to
articulate a way for the jury to evaluate the facts as they have
been developed through competing presentations. Although, for
the most part, a defendant is the master of his defense and a
court typically should not interpose a defense against his
wishes, a trial court is not limited to the stark choice of
giving an affirmative defense charge against a defendant’s
wishes, or no instruction at all. Legal guidance that bears on
a jury’s proper assessment of the State’s and defense’s proofs
can be conveyed without resort to the affirmative defense
framework.
22
Such an approach is particularly suited for accomplice
liability cases, which, courts have been told, require full,
accurate, and understandable instruction, regardless of whether
defense counsel requests the instruction. See Bielkiewicz,
supra, 267 N.J. Super. at 527. Here, the court sought to mold
an instruction to do just that, in recognition that the jury
could be confused about defendant’s statements telling Fairley
what to put into his robbery note while asserting that, both
before and after, he had scoffed at conducting a robbery and
said he wanted nothing to do with it.
Defendant objected to referencing the affirmative defense
and offered no alternative. His defense focused on the State’s
failure to prove that he formed the requisite intent to be an
accomplice to the robberies being planned by Fairley. Despite
the court making every effort to balance the concerns of both
parties, in our view, the jury charge went too far because it
explained renunciation in greater detail than was necessary.
That created the impression that defendant had to dismantle a
strawman argument in order to advance his strategy that he never
formed the intent necessary for accomplice liability.
In situations where a criminal trial record presents
evidence of an imperfect or incomplete defense, the trial court
must consider: (1) the need to educate the jury on how to
evaluate evidence from a legal perspective, in keeping with the
23
court’s responsibility to administer the justice system and the
jury’s truth-finding function; and (2) the need to protect a
defendant’s rights and not undermine the defense that has been
advanced at trial. Although a defendant has a right to choose
the defense he will present, the court must be concerned about
the countervailing public consideration that all legal concepts
necessary for the jury’s truth-seeking function are presented to
the jury for the proper administration of justice. A court
should assess a number of considerations when not all of the
elements of an affirmative defense are present and a defendant
resists the affirmative defense because it is asserted to be
inconsistent with his chosen defense.
First, the nature and extent of the evidence before the
jury must be examined. Questions such as how close the evidence
comes to establishing a defense, and whether the record contains
only an isolated reference to the defense’s essence or a
sustained theory throughout the trial are points to be
evaluated.
Second, against the background of how the case was tried,
the court must carefully assess the risk of jury confusion, if
the jury receives no guidance, in light of the evidence and
arguments presented at trial.
Third, the court should evaluate the factors identified in
R.T., supra, including whether counsel is surprised, how the
24
case was tried, and whether the potential instruction would be
incompatible with defendant’s position at trial or would
prejudice the defense in some way. 205 N.J. at 510.
Notwithstanding that an affirmative defense is only
imperfectly presented in the trial record, the court may
conclude that it is appropriate to issue a modified jury charge
that instructs the jury on all important legal concepts that
relate to liability under the charged crimes.
V.
In this matter, we are compelled to reverse defendant’s
conviction. The jury instruction given over defendant’s
objection foisted on defendant an affirmative defense that he
did not want and could not meet, as the State and the trial
court all realized. In the form in which it was delivered, the
instruction unfairly prejudiced defendant’s trial strategy.
From defendant’s perspective, the instruction drew the jury’s
attention away from his true defense -- that he never intended
to conspire or aid or assist in the commission of the crimes.
Certainly, the record presented evidence of an incomplete
or imperfect set of facts viewed from the perspective of the
affirmative defense of renunciation. The jury heard evidence
that could support that defendant was an accomplice:
defendant’s own statement and co-defendant Fairley’s testimony
included proof that defendant told Fairley what to include in
25
the robbery note. But, there was also evidence of an incomplete
defense. According to defendant, he initially told Fairley that
the idea of doing a robbery was crazy and repeatedly stated that
he did not want anything to do with any robbery Fairley was
contemplating. Fairley’s trial testimony supported defendant’s
assertion; however, Fairley’s pretrial statements to detectives
undermined it. The jury heard substantial evidence about
defendant’s incomplete demonstration of a renunciation defense
in Fairley’s cross-examination and in the State’s opening and
closing statements. In assessing that factual record, the court
could reasonably conclude that there was a substantial risk of
jury confusion unless the jury was told that “abandonment alone
is not enough for acquittal” based on renunciation, provided the
jury was satisfied that the State proved that defendant’s intent
matched Fairley’s intent to commit the robberies. A limited
charge to that effect would not have been incompatible with
defendant’s position at trial, and would have informed the jury.
However, rather than such a streamlined charge, the jury
charge contained page after page of transcript that discuss
renunciation. Even though the court emphasized that the State
had the burden of proving, beyond a reasonable doubt, each of
the elements of the crime, the court also told the jury that
defendant had a preponderance-of-the-evidence burden in
connection with the State’s proofs regarding the strawman
26
argument of renunciation. That approach was confusing and sent
mixed messages to the jury rather than elucidate principles that
were pertinent to the evidence.
In sum, because the charge tracked renunciation principles
in full, defendant had to combat an unwanted affirmative defense
that was inconsistent with his defense. We conclude that the
charge as given prejudiced the defense. For the reasons
expressed, defendant’s conviction must be reversed.
VI.
The judgment of the Appellate Division is reversed and the
matter is remanded to the trial court for further proceedings.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
LaVECCHIA’s opinion. JUSTICE FERNANDEZ-VINA did not
participate.
27
SUPREME COURT OF NEW JERSEY
NO. A-90 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAYMOND DANIELS, a/k/a
RAYMOND DANIELSS, TOOKIE
DANIELS, RAYMOND DANIELLS,
Defendant-Appellant.
DECIDED February 10, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
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 -----------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6