                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2315-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RICHARD R. HAROLD, a/k/a
RICHARD B. HAROLD, RICKY
HAROLD, RICK HAROLD, RICK
SMITH, ERIC R. HAROLD, and
MIKE SMITH BEY,

     Defendant-Appellant.
______________________________

                   Submitted October 22, 2018 – Decided November 20, 2018

                   Before Judges Sabatino and Mitterhoff.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Cumberland County, Indictment No. 15-04-
                   0370.

                   Wayne Powell, attorney for appellant.

                   Jennifer    Webb-McRae,        Cumberland       County
                   Prosecutor, attorney for respondent (Stephen C. Sayer,
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      After a four-day jury trial in 2016, defendant Richard R. Harold was found

guilty of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-

3(a)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)

(count two); second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:12-1(b)(4) (count three); fourth-degree aggravated assault, N.J.S.A.

2C:12-1(b)(4) (count four); and a second-degree "certain persons" weapons

possession offense, N.J.S.A. 2C:39-7(b)(1) (count five). The court sentenced

defendant to a forty-five-year custodial term on the attempted murder offense in

count one, subject to an eighty-five percent parole ineligibility period pursuant

to the No Early Release Act, N.J.S.A. 2C:43-7.2, plus a concurrent ten-year

custodial term on the weapons offense in count five. The remaining counts

merged at sentencing.

      For the reasons that follow, we reverse defendant's conviction and grant

his request for a new trial. We do so because of errors in the jury instructions

that were not harmless, given the tenor of the issues, the circumstantial nature

of the evidence presented by the State of defendant's guilt, and the hotly

contested issue of his identity as the perpetrator.




                                                                         A-2315-16T4
                                         2
                                         I.

      The State presented only circumstantial evidence at trial concerning the

underlying shooting incident which it charged as an attempted murder. There

were no eyewitnesses to the incident who identified defendant as the shooter,

nor any confession by defendant. We proceed to summarize some of the key

aspects of the evidence.

      On October 25, 2014, Millville City Police responded to a report of shots

fired in the parking lot of an apartment complex in Millville. No one believed

to be involved with the shooting was present when the police arrived. Shell

casings were found in the parking lot. After speaking with local residents the

following day, police obtained a copy of an outdoor video recording from a

nearby apartment complex that contained footage of the incident. The video

showed the shooter firing a weapon, entering a van parked at the location, and

leaving the scene. The identity of the shooter is not discernable from the video

footage, although it apparently shows he was wearing a black and white shirt.1

No one was injured or killed, and no eyewitnesses were located. The person(s)

who were fired at were not identified.


1
  Counsel did not furnish a copy of the video to this court on appeal. However,
the State acknowledges the video is not clear enough to identify defendant
definitively as the shooter.
                                                                        A-2315-16T4
                                         3
         Three days later, the police received information from a confidential

informant indicating that the defendant had been involved in the shooting.

Police Detective Jason Vinzinski and Officer Darrell Meyer, dressed in plain

clothes, drove in an unmarked vehicle to a residence in Newfield looking for the

defendant. They parked in the driveway outside the residence and waited for

the defendant to appear. Eventually he did so, apparently to dispose of some

trash.

         Officer Vinzinski testified that he made eye contact with defendant at that

time, after which defendant briefly reentered the residence, reemerged, and

drove away in a silver car. 2 Throughout this encounter, the officers never

attempted to identify themselves or communicate with defendant, and they did

not follow him when he left. They remained at the location, where they were

joined by other officers who conducted a search of the residence.

         During the trial, the State relied on several items of circumstantial

evidence to attempt to connect defendant with the shooting. In particular, the

State contended that the same gold van that appears in the video footage was

present at the residence where the defendant was found on October 28. The van


2
  This incident was the basis for the trial court's flight instruction, which the
defense contends was erroneous and unduly prejudicial. We discuss that issue
in Part II(A), infra.
                                                                            A-2315-16T4
                                          4
was registered under the name of Linda Harold, defendant's mother. In addition,

the State claimed that the shooter depicted in the video was wearing the same

black and white shirt that police later found at the residence. Also, police found

a .40-caliber Smith and Wesson handgun at the residence, which generated test

shells matched by a ballistics expert to the shells found at the scene of the

shooting.

      The State did not present any in-court or out-of-court identification of

defendant as the perpetrator of the shooting.       Although mail bearing the

defendant's name was found at the residence, his ex-girlfriend and mother both

testified that he did not live there. The residence belonged to the defendant's

ex-girlfriend, who was in the process of moving out and who claimed she had

granted defendant and his brother only limited access. She testified that she had

never seen the black and white shirt before, and that it was not the defendant's

"style."

      Forensic analysis was unable to confirm a match between defendant 's

buccal swab and DNA collected from the black and white shirt. Furthermore,

Linda Harold testified that she allowed only her other son, Robert Harold, to

borrow her gold van, and that Robert did so on the day that the shooting

occurred. According to the mother, Robert returned the van with a broken


                                                                          A-2315-16T4
                                        5
windshield the next day, and took the van to be repaired at a local auto glass

shop.

        Robert Flem, an employee at the auto glass shop that serviced the gold

van on October 27, 2014, two days after the shooting, did not identify defendant

as the person with whom he interacted that day. The repair receipt states that

the customer's name was "Rick Smith."

        Defense counsel strenuously argued at trial that defendant was not the

perpetrator of the shooting, nor responsible for possession of the seized weapon.

On appeal, defendant argues the jury received improper and inadequate

instructions, and that he is entitled to a new trial.

        Specifically, defendant raises the following points in his brief:

              POINT I

              THE JURY CHARGE GIVEN BY THE COURT ON
              THE ISSUE OF FLIGHT WAS NOT SUPPORTED BY
              THE RECORD AND ACTED TO DEPRIVE THE
              DEFENDANT OF A FAIR TRIAL.

              POINT II

              THE COURT’S FAILURE TO CHARGE THE JURY
              ON THE ISSUE OF IDENTIFICATION ACTED TO
              DEPRIVE THE DEFENDANT OF A FAIR TRIAL.
              (Not raised below)




                                                                            A-2315-16T4
                                          6
                                        II.

      Our appellate courts generally review alleged flaws in jury charges guided

by the standards of Rule 2:10-2. The Rule provides that "[a]ny error or omission

shall be disregarded by the appellate court unless it is of such a nature as to have

been clearly capable of producing an unjust result." R. 2:10-2; see also State v.

Ingram, 196 N.J. 23, 49 (2008). To make such a determination, our courts have

inquired whether the possibility of injustice arising from the erroneous jury

charges was "sufficient to raise a reasonable doubt as to whether the error led

the jury to a result it otherwise might not have reached." State v. Macon, 57

N.J. 325, 336 (1971); see also State v. Jackmon, 305 N.J. Super. 274, 277 (App.

Div. 1997).

      "Erroneous jury instructions on matters material to a jury's deliberations

are ordinarily presumed to be reversible error." Jackmon, 305 N.J. Super. at

277-78. A jury charge serves as a "road map to guide the jury, and without an

appropriate charge, a jury can take a wrong turn in its deliberations." State v.

Nelson, 173 N.J. 417, 446 (2002) (quoting State v. Martin, 119 N.J. 2, 15

(1990)). The Supreme Court has repeatedly emphasized that "clear and correct

jury instructions are essential for a fair trial." Nelson, 173 N.J. at 446.




                                                                              A-2315-16T4
                                         7
      To determine whether alleged defects in a jury charge rise to the level of

such reversible error, we must consider those claims within the context of the

charge as a whole, not in isolation. State v. R.B., 183 N.J. 308, 325 (2005); see

also State v. Chapland, 187 N.J. 275, 289 (2005). When examining the entire

charge, the reviewing court should consider whether the erroneous instruction

was fatal to the conviction. Jackmon, 305 N.J. Super. at 299 (citing State v.

Rhett, 127 N.J. 3, 7 (1992)). If the court finds that prejudicial error did not

occur, the jury's verdict must stand. State v. Coruzzi, 189 N.J. Super. 273, 312

(App. Div. 1983); see also State v. Loftin, 146 N.J. 295 (1996).

      Guided by these principles, we consider, in turn, each of defendant's

allegations of error concerning the jury charge.

                                       A.

      Over defendant's objection, the trial court issued a flight charge upon

determining there was sufficient evidence for the jury to infer that there could

have been flight by defendant indicative of a consciousness of guilt. Although

flight by an accused may be admissible to demonstrate his or her consciousness

of guilt, there must be sound evidential support for such an inference. The trial

court must carefully instruct the jury regarding the inferences it may draw from

such flight evidence. State v. Mann, 132 N.J. 410, 420 (1993). Furthermore,


                                                                         A-2315-16T4
                                       8
while evidence of flight need not "unequivocally" support a reasonable inference

of guilt, it must intrinsically reflect a consciousness of such guilt. State v.

Randolph, 228 N.J. 566, 595 (2017).

      Here, the State presented meager evidence supporting its theory that

defendant's departure from the residence on October 28 demonstrated a

consciousness of guilt to avoid his apprehension for the October 25 shooting.

Notably, when asked by the trial court what evidence demonstrated that

defendant's flight showed such a consciousness of guilt, the prosecutor candidly

told the court, "I mean it's not much." The prosecutor stated the best evidence

he had on this subject was Officer Vinzinski's testimony that he and defendant

made eye contact on October 28 before defendant left the residence. Ibid.

According to Officer Vinzinski's testimony, the officers, both dressed in plain

clothes, waited in an unmarked vehicle outside the residence.        They saw

defendant leave the residence to dispose of trash, and Officer Vinzinski alleged

they made eye contact at that time. Defendant then reentered the residence,

came out shortly thereafter, walked past the unmarked vehicle, got into a silver

car, and drove away.

      As we have already noted, the officers did not attempt to communicate

with defendant or follow him. They remained at the residence after he drove


                                                                        A-2315-16T4
                                       9
away. There is no concrete direct evidence presented that defendant was aware

that there were undercover police officers outside the residence, or that he left

the location in an attempt to evade them.

       The Supreme Court has noted that flight from the scene of a crime may be

evidence of consciousness of guilt if the flight relates to the crime charged.

Randolph, 228 N.J. at 594. Although it may be difficult for a jury to determine

a defendant's actual motive for departure, the jury "must be able to draw

reasonable inferences from the evidence; it may not be left to speculate." Id. at

595.

       In the present case, the inference that defendant's departure from the

residence on October 28 showed a consciousness of guilt of the shooting was

speculative. The event took place three days after the shooting. There was no

in-court or out-of-court identification of defendant as the perpetrator. The State

acknowledged the video footage of the crime scene is not clear enough to

identify the perpetrator's face, but rather, only allows a viewer to "see a couple

of people, and a couple of vehicles[.]" The State's witness Flem, who had

supposedly interacted with the defendant at the auto glass shop, did not identify

defendant. Forensic analysis was not able to match defendant's DNA with the

DNA on the shirt the State alleged he was wearing during the shooting.


                                                                          A-2315-16T4
                                       10
      In sum, there is simply insufficient evidence linking the defendant's

departure from the residence on October 28 to the shooting on October 25. The

fact that the officers' unmarked car partially blocked the driveway does not

necessarily mean that defendant recognized it was a police car, or that he was

leaving because he had shot at someone a few days earlier.

      The State argues that a flight instruction is appropriate when there are both

plausible and sinister explanations for a defendant's flight, citing State v.

Wilson, 57 N.J. 39, 48-49 (1970). In Wilson, the circumstances of the alleged

flight were very different from those of the present case. The defendant in

Wilson entered a liquor store to commit a robbery, shooting and killing two

people in the process. Id. at 43. After being struck with a bottle and seeing that

his partner had left, the defendant ran from the store. Ibid. The Court ruled in

Wilson that the flight charge was appropriate: "Although the jury could have

inferred that [the defendant] left the store because he was threatened with a

broken bottle, it could also readily infer that he fled to avoid apprehension by

the police and thereby exhibited consciousness of guilt." Id. at 49.

      In contrast with the defendant in Wilson, who fled after robbing a store

and killing two people, there are far more benign explanations for why defendant

in the present case left the residence on October 28 without acknowledging the


                                                                           A-2315-16T4
                                       11
plainclothes officers who were parked in an unmarked vehicle in the driveway.

Significantly, the identity of the defendant as the perpetrator was certain in

Wilson, while that is not so here.

      The trial court's decision in this case to issue the flight charge was based

in part on the length of time the undercover officers were parked outside the

residence, and the fact that a person would need to walk by the unmarked vehicle

in order to get through the driveway. This led the trial judge to determine that

"it took effort for [defendant] to leave" and "[t]he person leaving is going to

have to deal with whoever is there." From this, the court concluded that the

evidence sufficed for a reasonable jury to infer flight and a consciousness of

guilt from the circumstances. We respectfully disagree. Although the evidence

presented was somewhat supportive of a flight theory, it did not rise to a level

that warranted the court's instruction that the proof could be used by the jury to

support such an incriminatory inference.

      The issuance of the flight charge in this case was not harmless error. The

Supreme Court has repeatedly held that erroneous instructions in criminal cases

are typically "poor candidates" for rehabilitation under the harmless error

doctrine. Loftin, 146 N.J. at 412 (1996); see also State v. Simon, 79 N.J. 191,




                                                                          A-2315-16T4
                                       12
206 (1979).     Erroneous jury instructions on material points are generally

presumed to be reversible error. Martin, 119 N.J. at 15.

      In State v. McNeil, 303 N.J. Super. 266, 275 (App. Div. 1997), we

determined that the flight charge given in that case was "totally inapplicable to

the evidence" where a perpetrator's act of leaving the scene of the crime was

presented as evidence of consciousness of guilt. The question for the jury in

McNeil, as here, was whether the defendant was, in fact, the perpetrator. Ibid.

We found that the inappropriate jury charge in McNeil, in combination with

other erroneous charges, was clearly capable of producing an unjust result under

Rule 2:10-2, and therefore was not harmless error. Id. at 269. Similar reasoning

applies here.

      Another reason the flight charge here was erroneous and prejudicial was

because it misstated – no doubt inadvertently – the location from which

defendant's alleged flight 3 occurred. The relevant portion of the charge the court

gave reads as follows:

                  There has been some testimony in this case from
            which you may infer that the defendant fled shortly
            after the alleged commission of the crime. The

3
  The phrase "the place from where the crime has been committed" appears
verbatim in the Model Charge, and was not omitted or modified to fit the
circumstances here. See Model Jury Charges (Criminal), "Flight" (approved
May 10, 2010).
                                                                           A-2315-16T4
                                       13
            defendant denies any flight. The question of whether
            the defendant fled after the commission of the crime is
            another question of fact for your determination.

                   However, mere departure from the place where
            the crime has been committed does not constitute flight.
            If the [sic] you find the defendant[,] fearing that an
            accusation or arrest would be made against him on the
            charge involved in the Indictment[,] took refuge in
            flight for the purposes of evading the accusation or
            arrest on that charge, then you may consider such flight
            in connection with all other evidence in this case as an
            indication or proof of consciousness of guilt.

            [(Emphasis added).]

Defendant rightly points out that "there is no way to know whether the jury

wrongly understood that the [c]ourt was instructing that the hurried departure of

the van from the scene of the crime was the flight conduct referred to in the

charge." The flight charge did not explain that the alleged flight in question

occurred three days after the crime took place, rather than directl y from the

scene of the crime. This unfortunate phraseology increased the potential to

confuse the jury.

      We recognize that defense counsel did not call this particular

misstatement to the judge's attention, and that the prosecutor in summation did

not argue defendant had fled from police officers at the scene of the shooting.




                                                                         A-2315-16T4
                                      14
Nonetheless, the misstatement within the instruction adds to our concern that

the jurors could have been misled.

      In sum, the flight charge in this case was not adequately supported by the

evidence and was phrased in a manner that incorrectly suggested defendant fled

police at the shooting scene. These errors require a new trial, given that the

State's proofs of guilt were not insurmountable. Cf. State v. Sterling, 215 N.J.

65, 102 (2013) (finding no harmful trial error requiring reversal of certain

charges where DNA evidence had overwhelmingly proved the defendant's

identity and guilt).

                                       B.

      The second contested issue on appeal is whether the court should have

given an identification instruction to the jury. Defense counsel did not request

such an identification charge, but argues that the court should have sua sponte

issued this instruction. We review this issue, not raised below, under a plain

error standard of review. Macon, 57 N.J. at 333.

      The model "No In- Or Out-Of-Court Identification" charge reads as

follows:

                    (Defendant), as part of his/her general denial of
             guilt, contends that the State has not presented
             sufficient reliable evidence to establish beyond a
             reasonable doubt that he/she is the person who

                                                                        A-2315-16T4
                                       15
            committed the alleged offense. The burden of proving
            the identity of the person who committed the crime is
            upon the State. For you to find this defendant guilty, the
            State must prove beyond a reasonable doubt that this
            defendant is the person who committed the crime. The
            defendant has neither the burden nor the duty to show
            that the crime, if committed, was committed by
            someone else, or to prove the identity of that other
            person. You must determine, therefore, not only
            whether the State has proven each and every element of
            the offense charged beyond a reasonable doubt, but also
            whether the State has proven beyond a reasonable doubt
            that this defendant is the person who committed it.

            [Model Jury Charges (Criminal), "No In- Or Out-Of-
            Court Identification" (rev. Oct. 26, 2015).]

Defendant argues that, without this instruction, the jury may not have been

sufficiently cognizant of the State's burden to prove beyond a reasonable doubt

not only that an offense occurred, but that it was this particular defendant who

committed it.

      Because there was no in-court or out-of-court identification of defendant

as the perpetrator, and defendant maintains that he did not commit the crime,

identity was a hotly disputed issue in this case. Given the exculpatory testimony

from defendant's mother and ex-girlfriend, it is at least plausible that the

defendant's brother, Robert Harold, was the perpetrator. As we already have

noted, defendant's mother testified that Robert borrowed the gold van, which

was linked to the shooting, on October 25, and returned it to her with a broken

                                                                         A-2315-16T4
                                       16
windshield the next day, October 26. It is also noteworthy that the DNA analysis

of the shirt the defendant was supposedly wearing during the shooting was not

conclusive, and that his ex-girlfriend testified, "he wouldn't be caught dead in

that [shirt]." Flem, the auto glass repair clerk, was unable to identify defendant

as his customer. All things considered, the identification charge would have

been appropriate in this setting.

      Trial courts have an "independent duty . . . to ensure that the jurors receive

accurate instructions on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either party."         State v.

Reddish, 181 N.J. 553, 613 (2004) (citing State v. Thompson, 59 N.J. 396, 411

(1971)). At times, a trial court's failure to sua sponte charge the jury on a

particular issue may constitute plain error requiring reversal. State v. Fair, 45

N.J. 77, 93 (1965). Although this omission by itself would not necessitate a new

trial, the error compounds the prejudice stemming from the erroneous flight

charge. A new trial in this close case, in which the circumstantial proofs of

identity were not as "overwhelming" as in other cases, is in the interests of

justice. R. 2:10-1.4



4
  Because the jury charge errors could have tainted defendant's conviction on
the weapons possession count, that count should be tried again as well.
                                                                             A-2315-16T4
                                        17
Reversed and remanded for a new trial.




                                         A-2315-16T4
                              18
