                                NOT FOR PUBLICATION WITHOUT THE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-3943-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WILLIE H. HYMON, JR.,
a/k/a CHARLES HYMON,
WILLIAM H. HYMAN,
WILLIE H. HYMAN, WILLIE
H. HYMON, and WILLIAM
HYMAN, JR.,

     Defendant-Appellant.
____________________________

                    Submitted December 12, 2018 – Decided April 23, 2019

                    Before Judges Accurso, Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 17-01-
                    0026.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Rebecca L. Gindi, Assistant Deputy Public
                    Defender, of counsel and on the brief).
            Scott A. Coffina, Burlington County Prosecutor,
            attorney for respondent (Nicole Handy, Assistant
            Prosecutor, of counsel and on the brief).

PER CURIAM

      Defendant Willie H. Hymon, Jr., was charged in a superseding indictment

with first-degree robbery, in violation of N.J.S.A. 2C:15-1(a)(1) (count one);

first-degree kidnapping, in violation of N.J.S.A. 2C:13-1(b)(1) (count two); and

second-degree burglary, in violation of N.J.S.A. 2C:18-2(a)(1) (count three), in

connection with a home invasion during which he and Urie Ridgeway1 allegedly:

struck the victim with a wooden log and metal pipe, and later with a soda can;

threatened his life; took several items including the victim's money, cell phone,

car keys and car, and a bottle of Maker's Mark bourbon; and duct-taped him to

a chair. Considering the State's theories that defendant acted both as a principal

and Ridgeway's accomplice as to each charge, the jury convicted defendant on

all counts. He was sentenced to an aggregate prison term of thirty years. On

appeal, defendant argues:

            POINT I

            BECAUSE THE JURY WAS NEVER INSTRUCTED
            THAT ITS VERDICT COULD NOT BE
            INFLUENCED BY PASSION, PREJUDICE, OR

1
   Ridgeway pleaded guilty to first-degree robbery three months prior to
defendant's trial.
                                                                          A-3943-16T1
                                        2
SYMPATHY, AND BECAUSE THE TRIAL WAS
RIFE WITH IMPROPER APPEALS TO THE
JURORS' SOCIETAL DUTY, FEAR OF THE
DEFENDANT, AND SYMPATHY FOR THE
VICTIM, THE DEFENDANT WAS DENIED HIS
RIGHT TO A FAIR AND IMPARTIAL TRIAL.

     A.    By Omitting A Critical Portion Of The
     "Criminal Final Charge[,]"[] The Jury Was Never
     Instructed That Passion, Prejudice, And
     Sympathy Could Not Influence Its Verdict.

     B.    The Prejudice From The Court's Charge
     Error Was Compounded By The Judge's And
     Prosecutor's Improper Calls To Arms And The
     Prosecutor's Repeated Appeals To The Jurors'
     Sympathy and Fear.

POINT II

BY INTRODUCING EVIDENCE THAT NON-
TESTIFYING     WITNESSES     PROVIDED
INCULPATORY STATEMENTS ABOUT THE
DEFENDANT'S GUILT, THE STATE VIOLATED
THE DEFENDANT'S CONFRONTATION RIGHT,
THE RULE IN STATE V. BANKSTON, AND THE
RULES OF EVIDENCE.

POINT III

THE TRIAL COURT'S FAILURE TO INSTRUCT
THE   JURY   ON  HOW    TO   EVALUATE
STATEMENTS OF THE DEFENDANT AND ITS
MISCHARACTERIZATION OF THE EVIDENCE IN
ITS IDENTIFACTION CHARGE DENIED THE
DEFENDANT A FAIR TRIAL AND REQUIRES
REVERSAL.


                                                       A-3943-16T1
                        3
            POINT IV

            DEFENDANT'S AGGREGATE THIRTY-YEAR
            SENTENCE IS MANIFESTLY EXCESSIVE AND
            SHOULD BE VACATED BECAUSE THE COURT
            ENGAGED IN IMPROPER DOUBLE COUNTING
            AND FAILED TO CONSIDER THE LIKELIHOOD
            THAT THE DEFENDANT WILL BE SERVING THE
            REMAINDER OF HIS LIFE IN PRISON.

Although we are not persuaded by defendant's argument in Point I, we agree, in

part, with the arguments advanced in Points II and III and are compelled to

reverse.

                                         I.

      Defendant conceded in his reply letter brief that, contrary to his initial

assertion that the trial judge omitted "a critical portion" of the final charge, the

judge did instruct the jury that bias, sympathy and prejudice were not to play

any part in their deliberations. Defendant still argues that the judge's opening

instruction, prior to jury selection, together with improper remarks by the

assistant prosecutor in both his opening and closing statements, were "calls to

arms" that deprived defendant of a fair trial.

      Defendant did not object to any of the remarks. We therefore review the

remarks under the plain error standard, that is, whether the instruction or




                                                                            A-3943-16T1
                                         4
prosecutorial comments, or both, were "clearly capable of producing an unjust

result . . . ." R. 2:10-2.

      Turning first to the judge's instruction, we perceive defendant culls only

selective segments of the judge's instruction on jury service and here presents

them out of context. Defendant emphasizes that portion of the instruction in

which the judge rhetorically asked, "Who protects us from the acts of

wrongdoers which, if not addressed[,] would go unpunished and result in

community fear and anarchy?" and another reference to addressing "acts of

wrongdoers." Viewing the jury charge as a whole, State v. Thomas, 187 N.J.

119, 134 (2006), however, the judge presented a fair and balanced presentation

about jurors' duties.

      The judge commented on the jury's role to protect against perils presented

by both overzealous prosecution and criminal acts:

             We all think that our personal freedom and our liberty
             is protected by our armed forces. And indeed, they do
             protect our personal freedom and our liberty. But they
             protect us from an external threat. Who then protects
             us from an internal threat? Who protects us from the
             possible tyranny of a government that might attempt to
             unfairly charge and punish a citizen? Who protects us
             from the acts of wrongdoers which, if not addressed
             would go unpunished and result in community fear and
             anarchy? The answer is that the duty of protecting that
             greatest asset which we have, our personal freedom and


                                                                        A-3943-16T1
                                       5
            our liberty, rests with the weakest branch of the
            government, the judiciary.

The trial judge went on to explain that jurors were temporary members of the

judiciary and that it was their responsibility to "judge the competing interests of

the government and those of its citizens. And if we all do that fairly, we can be

sure that in the end our government will never become a tyrant and we can be

sure that the acts of wrongdoers will be addressed."

      "[P]lain error requires demonstration of 'legal impropriety in the [jury]

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.'" State v. Chapland, 187 N.J. 275, 288-89 (2006) (quoting State v. Hock,

54 N.J. 526, 538 (1969)). Defendant has failed to show any impropriety in the

judge's remarks, much less one that amounted to plain error.

      Defendant also complains that prejudice engendered by the judge's

"charging error was compounded further by the [assistant] prosecutor's flagrant

and repeated call to arms, appeals to the jurors' sympathy for the victim and fear

of the defendant." A conviction may be reversed where the prosecutor engaged

in conduct so egregious in the context of the trial as a whole that defendant was

deprived of a fair trial. State v. Wakefield, 190 N.J. 397, 437-38 (2007). In

                                                                           A-3943-16T1
                                        6
determining whether a prosecutor's misconduct warrants reversal, we consider:

"(1) whether defense counsel made timely and proper objections to the improper

remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the

court ordered the remarks stricken from the record and instructed the jury to

disregard them." State v. Frost, 158 N.J. 76, 83 (1999). A defendant's failure

to object contemporaneously deprives the trial court of the "opportunity to

ameliorate any perceived errors." State v. Feal, 194 N.J. 293, 312 (2008).

      Where, as here, a defendant fails to object, the court can infer that the

remarks or error were of no moment in the context of the trial. State v. Ingram,

196 N.J. 23, 42-43 (2008). "Any 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. Under the harmless error standard,

there must be "some degree of possibility that [the error] led to an unjust verdict.

The possibility must be real, one sufficient to raise a reasonable doubt as to

whether [it] led the jury to a verdict it otherwise might not have reached." State

v. Bankston, 63 N.J. 263, 273 (1973).

      Prosecutors have considerable leeway in summarizing the State's case,

State v. Williams, 113 N.J. 393, 447 (1988), and may do so graphically and

forcefully, State v. Johnson, 287 N.J. Super. 247, 265 (App. Div. 1996); see also


                                                                            A-3943-16T1
                                         7
State v. Morton, 155 N.J. 383, 457 (1998) (finding a prosecutor's description of

the defendant as a "cold-blooded killer" was not reversible error because the

evidence supported the contention and the argument was made in response to

the defendant's argument). They may not, however, make "inflammatory and

highly emotional" appeals that have the capacity to distract the jury from a fair

consideration of the evidence of guilt. State v. W.L., Sr., 292 N.J. Super. 100,

111 (1996). The prosecutor must confine his or her comments to the evidence

and the reasonable inferences that may be drawn therefrom. Johnson, 287 N.J.

Super. at 265.

      Defendant cites to numerous portions of the assistant prosecutor's opening

and closing remarks that he contends appealed "to the jury's sympathy and fear"

by stating:

    for thirty minutes the victim "experienced being terrorized by these two

       suspects";

    "If what you just heard [the State's version of the facts] all sounds like

       the plot or sounds like a horror movie, this is the reality" that the victim

       lived on the night of the incident;

    "The victim is going to talk to you about the injuries he suffered, the

       horror that he went through that night";


                                                                           A-3943-16T1
                                        8
    the night of the incident "was a real[-]life horror story for" the victim;

    "What happened to [the victim] in this case was nothing short of torture";

    the victim "talked about the terror that he felt that night when these two

       individuals were in his home telling him that he was not going to live. . . .

       At one point [the victim] talk[ed] about Urie Ridgeway picking up a

       bottle of bleach, they were going to bleach him, absolute terror for [thirty]

       minutes."

Defendant also claims the assistant prosecutor appealed to the jurors' emotions

by describing the lasting impact of the injuries sustained by the victim "all while

highlighting his sterling character as a pediatric healthcare provider and

Vietnam veteran . . . ."

   All of those remarks, however, related to the evidence that defendant or

Ridgeway, or both: broke into the victim's home, beat him with weapons, tied

him to a chair, threatened him while holding a screwdriver to his eye, threatened

to pour a bottle of bleach on him, repeatedly threatened to kill him, ripped the

phone out of the wall, and left him bound and bloodied. Further, the remarks

related to elements of crimes the jury considered.

   In order to prove first-degree robbery, the State had to prove that defendant

inflicted or attempted to inflict serious bodily injury. N.J.S.A. 2C:15-1(b).


                                                                            A-3943-16T1
                                         9
Likewise, in order to prove criminal restraint – the lesser-included offense to

kidnapping – the State had to prove that defendant restrained the victim

"unlawfully in circumstances exposing [the victim] to risk of serious bodily

injury." N.J.S.A. 2C:13-2(a). In order to negate a jury finding of second-degree

kidnapping, the State was required to prove that defendant did not release the

victim unharmed and in a safe place prior to apprehension. N.J.S.A. 2C:13-1(c).

The term "unharmed" encompasses physical, emotional and psychological harm.

State v. Sherman, 367 N.J. Super. 324, 347 (App. Div. 2004).

    The assistant prosecutor attributed the victim's inability to work as a nurse

anesthetist in the pediatric wing of a hospital to the injuries he sustained at the

hands of the intruders, which caused serious bodily injury. The lasting impact

of the injuries inflicted during the home invasion directly related to elements of

the crimes the jury considered. Defendant failed to mention that the assistant

prosecutor's remarks about the injuries the victim suffered when he was shot by

a sniper in Vietnam were engendered by defense counsel's cross-examination of

the victim about those injuries.     The trial judge cautioned the jurors that

counsel's comments on the evidence during opening and closing statements were

not binding on them and that counsel could not tell the jurors "what the evidence

is or is not."


                                                                           A-3943-16T1
                                       10
    Viewed in that light, we conclude the assistant prosecutor, by confining his

comments to the evidence, stayed within the wide latitude to which he was

entitled. State v. Mayberry, 52 N.J. 413, 437 (1968). He was "entitled to be

forceful and graphic in his summation to the jury, so long as he confine[d]

himself to fair comments on the evidence presented." State v. Rose, 112 N.J.

454, 518 (1988) (quoting State v. DiPaglia, 64 N.J. 288, 305 (1974) (Clifford,

J., dissenting)).

    We look closely at another of the assistant prosecutor's comments that

defendant argues tended to equate the victim's experience with that of the jurors:

             This is your home. Your home is supposed to be your
             refuge. When you go home from work, from school, or
             from whatever you're doing that day, you go home and
             you want to relax and you want to feel safe. This man
             took that from [the victim]. He can't go home and feel
             safe anymore because of what happened to him that
             night. And he's never going to get that back, that
             feeling of security and safety you have in your house.

      Under the plain error standard, we determine these brief remarks did not

raise "a reasonable doubt as to whether [the comments] led the jury to a verdict

it might not have otherwise reached." Bankston, 63 N.J. at 273. Emotional and

personalized arguments inviting jurors to consider how they would respond to a

situation suggested by the evidence is improper. State v. Blakney, 189 N.J. 88,

95 (2006).     Here, however, the assistant prosecutor merely contrasted the

                                                                          A-3943-16T1
                                       11
psychological impact the invasion had on the victim with the security normally

enjoyed in a home. The use of "you" and "your" was unfortunate, as it may

appear that the assistant prosecutor was trying to connect the victim with the

jurors, but the general tenor of the brief comment did not draw the jurors into

the victim's shoes.

      So too, the assistant prosecutor should not have told the jury in his opening

statement that "when you return at the end of all the presentations of the

evidence and the instruction of the law, to the only fair and just verdict, and that

is a verdict that . . . brings justice to the victim." And he should not have reprised

that theme in his summation: "I submit to you, as I did in the beginning, that

this was a real life horror story for [the victim] and you have the opportunity to

write the last chapter in that story. And I ask you to do that by bringing justice

to the victim." But these two brief references, made a week apart, likewise do

not amount to plain error. Unlike the cases relied upon by defendant, the

assistant prosecutor did not exhort the jury to "send a message." See State v.

Rose, 112 N.J. 454, 520-21 (1988) (finding the prosecutor's comments

inflammatory where he told the jury "[y]ou must send a message out to

everybody outside in this community"); see also State v. Hawk, 327 N.J. Super.

276, 282 (App. Div. 2000) (concluding the prosecutor's comments were


                                                                              A-3943-16T1
                                         12
improper when he stated to the jury that by returning a guilty verdict the jury

would send the message that "this community will not tolerate distributors and

sellers of [drugs]"); State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994)

(finding impropriety in the prosecutor's comment that the jury's participation in

the matter was their opportunity to "make a difference in [their] community").

Also unpersuasive is defendant's reliance on State v. Rodriguez, 365 N.J. Super.

38, 52 (App. Div. 2003), where the prosecutor disparaged the defendant's

assertion of an insanity defense, concluding his summation by urging the jury to

consider the evidence and "[l]et the battle for justice be won." The court

reversed the defendant's conviction because the prosecutor's statements implied

that justice could be served only if they "found defendant guilty; and justice

would not be serviced if the jury found defendant not guilty by reason of

insanity." Id. at 52-53. Here, the assistant prosecutor did not say or imply that

justice would be disserved if the jurors adopted defendant's misidentification

defense. The prosecutor's comments are not reversible error.

                                           II.

      Defendant also contends that the admission of evidence from non-

testifying individuals violated his right to confront witnesses as guaranteed by

the Sixth Amendment to the United States Constitution, U.S. Const. amend. VI,


                                                                         A-3943-16T1
                                      13
and Article I, Paragraph 10 of the New Jersey Constitution, N.J. Const. art. I, ¶

10, as well as the Rules of Evidence. We review that evidence, to which no

objection was lodged, under the plain error standard. R. 2:10-2.

      A Medford Township detective sergeant testified that two women

contacted the police department about the identity of the two suspects and the

composite sketches that were made at the victim's direction and released to the

public. The detective sergeant met with the women "[t]o attempt to locate the

victim's stolen car." Although the assistant prosecutor advised the detective

sergeant not to get "into details of the conversation with any of those

individuals" during his testimony, the detective said he came away with reason

to believe the car might be found "in the area around Mount Holly."

      Another Medford detective testified that after the composite sketches were

released, a member of law enforcement provided "information that was helpful

in [the] investigation" and other phone calls from members of the public

provided "very helpful" information "in identifying the suspects in this case":

defendant and Ridgeway.       That detective also testified that he received

information from another witness, whom he fully named, and from one Stella –

who wished to remain anonymous because she feared retaliation – that was

consistent with information provided by other witnesses, including a testifying


                                                                         A-3943-16T1
                                      14
witness; he said Stella added substantially to that "consistent information."

Although the court stopped the detective from saying what Stella told him, he

testified he went to Mount Holly that day and located the victim's stolen car.

      Testimony was also elicited about information provided by defendant's

brother, William Hymon (William). The detective sergeant, after admitting on

cross-examination that he mistakenly took William into custody thinking he was

one of the perpetrators, testified on redirect that he received information during

the course of the investigation that led him to defendant. He also said that

investigators – he did not recall if he was one of them – spoke with William who

"provide[d] information that was useful to this investigation . . . ultimately

leading to the arrest of his brother." The detective sergeant later admitted that

William was "interviewed at length about what happened in this case" and that

William provided police with information that led the detective sergeant to

believe that his brother, defendant, "in fact, [did] it"; "[s]pecifically, that

[police] were looking for his brother."

      Justice Albin, writing for our Supreme Court in State v. Branch,

eloquently recognized, "Both the hearsay rule and the right of confrontation

protect a defendant from the incriminating statements of a faceless accuser who

remains in the shadows and avoids the light of court." 182 N.J. 338, 348 (2005).


                                                                          A-3943-16T1
                                       15
The admission of evidence from a non-testifying witness is, therefore, generally

prohibited.   Id. at 357; see also N.J.R.E. 801(c); N.J.R.E. 802.           But the

Confrontation Clause, which guarantees a defendant the right to cross-examine

witnesses, "does not condemn all hearsay." Branch, 182 N.J. at 348. "A

defendant's confrontation right must accommodate 'legitimate interests in the

criminal trial process,' such as established rules of evidence and procedure

designed to ensure the efficiency, fairness, and reliability of criminal trials." Id.

at 349 (quoting State v. Garron, 177 N.J. 147, 169 (2003)).

      Thus, a police officer may state that he relied "upon information received"

when explaining why he approached a suspect or went to the scene of a crime ,

without violating hearsay rules. Bankston, 63 N.J. at 268. While such testimony

is admissible to show the officer did not act arbitrarily, the hearsay rules are

violated "when the officer becomes more specific by repeating what some other

person told him concerning a crime by the accused." Ibid. Even so, it is the

creation of the inference, not necessarily the specificity of the statements made,

that determines whether the hearsay rules were violated. See State v. Irving,

114 N.J. 427, 447 (1989). In short, a police officer cannot "imply to the jury

that he possesses superior knowledge, outside the record, that incriminates the

defendant." Branch, 182 N.J. at 351.


                                                                             A-3943-16T1
                                        16
      While it may have been permissible for the detectives to testify that they

were provided with information that led them to the location of the stolen car, 2

the elicited hearsay information interjected much more into the trial. The two

women not only provided the general location of the car, the detective sergeant

said the women contacted the department "about the identity of the two suspects

and the composites," leading to the inference that they identified the suspects in

the sketches that the State contended depicted defendant and Ridgeway. Those

same composites were the basis of the other "useful information" gathered from

law enforcement and the public that helped identify the suspects. Again, the

weight of that evidence – the sketches, based on information supplied by the

victim – was bolstered by the inference provided by those non-testifying

witnesses to police. The information supplied by Stella, which was consistent



2
   In Branch, the Court explained that in situations other than a photographic
identification, police officers may use "the phrase 'based on information
received' . . . to explain their actions, but only if necessary to rebut a suggestion
that they acted arbitrarily and only if the use of that phrase does not create an
inference that the defendant has been implicated in a crime by some unknown
person." Id. at 352. The Court, however, explained that an exception may exist
where the defendant suggests an officer acts arbitrarily or with ill motives,
allowing an officer to explain his actions despite the prejudice to the defendant.
Ibid. Defendant does not argue that there was no suggestion that the officers
acted arbitrarily or with ill motive, so as to render unnecessary the introduction
of Bankston-type evidence. As such, we will not address that issue. State v.
Robinson, 200 N.J. 1, 20 (2009).
                                                                             A-3943-16T1
                                        17
with and "substantially added" to the testimony of a testifying witness,

effectively bolstered that witness's testimony, as did the "consistent"

information supplied by the other non-testifying witness whom the detective

named.

      Moreover, William's information, relayed by the detective, "ultimately"

led to defendant's arrest. The police were told that they were "looking for"

William's brother. The detective said that information led him to believe that

defendant "did it."

      We also note that much of William's hearsay information was elicited after

the detective sergeant was cross-examined about his arrest of William and the

detective's subsequent discovery that William was not defendant. Contrary to

the State's contention on appeal, the defense's cross-examination did not invite

error. We see no reason why it was necessary for the State to present William's

incriminating evidence in response to that cross-examination.

      In Bankston, the Court overturned the defendant's conviction when a

detective's testimony created the "inescapable inference" that the detective was

informed from an unknown source that the defendant committed the crime. 63

N.J. at 271. At trial, the detective stated that the defendant fit the description of

the person the police were looking for. Id. at 266-67. The Court stated that


                                                                             A-3943-16T1
                                        18
"[w]hen the logical implication to be drawn from the testimony leads the jury to

believe that a non-testifying witness has given the police evidence of the

accused's guilt, the testimony should be disallowed as hearsay." Id. at 271.

      In State v. Irving, 114 N.J. at 446-47, a detective testified that, after

canvassing the neighborhood in search of leads in a robbery, he decided to

"focus[] on the defendant as the subject of his investigation and placed his

picture in the [photographic] array" to be shown to two witnesses, who

subsequently picked the defendant's photo. The Court found that the detective's

testimony created the "inescapable inference" that "an informant had told [the

detective] that [the] defendant committed the crime"; thus, violating the

principles of Bankston. Id. at 446-47.

      The bulk of the hearsay information testified to by the detectives in this

case either impliedly or directly suggested that non-testifying witnesses

implicated defendant in the crimes. The extra weight attributed to the composite

sketch and the implication of defendant by William – the person the defense, in

advancing the misidentification defense, contended was responsible for the

crimes – was clearly capable of producing an unjust result, R. 2:10-2, especially,

as we will explain, considering the State's proofs against defendant.




                                                                          A-3943-16T1
                                       19
                                            III.

      Defendant contends his trial was tainted because the trial court: (1) failed

to instruct the jury on how to assess the written and oral statements allegedly

made by defendant; and (2) erroneously instructed the jury that the victim made

an out-of-court identification of defendant when no such identification occurred.

Although defendant did not object to the jury instruction, there is a presumption

that a defendant is unfairly prejudiced by erroneous jury instructions on material

points because "proper jury instructions are essential to a fair trial." State v.

Baum, 224 N.J. 147, 159 (2016) (quoting State v. Bunch, 180 N.J. 534, 541-42

(2004)).

      Defendant argues that the trial court erred by omitting the charge

instructing the jury how to evaluate admitted evidence:          two letters and

envelopes allegedly written by defendant and testimony about oral threats to and

demands of the victim attributed to defendant during the home invasion.3 About

a week after the attack, and after defendant was in custody in the Burlington

County Jail, the victim received a letter expressing the author's remorse for



3
  Defendant was said to have demanded jewelry, money and guns. Threats the
victim recounted included: "you're going to get murdered tonight"; "I don't want
to read my name in the newspapers"; "if you don't go to the police, you'll get
your car back"; and "we know where you live."
                                                                          A-3943-16T1
                                       20
violating the victim's "home and peace of mind." The six-page letter was signed,

"Sincerely, Willie." The return address on the envelope was defendant's home

address, and "BCJ" was written on the back of the envelope. The Medford

detective received another hand-written letter from defendant requesting a

receipt for defendant's belongings in police custody, including two bicycles.

Subsequently, the detective served defendant with "legal paperwork"

compelling defendant to provide handwriting exemplars. Defendant provided

exemplars of the alphabet in both upper and lower case letters, but refused to

reproduce the letter sent to the victim, a copy of which was included with the

paperwork.

      At trial, a United States Secret Service Forensic Document Examiner

testified as an expert in handwriting analysis. He explained that he examined

the letter sent to the victim, the envelope in which it was sent, the letter sent to

the detective and defendant's handwriting exemplar. The document examiner

concluded, while the letters and envelopes were "probably of common

authorship," he could not determine whether defendant was the author because

of a lack of handwriting exemplars.




                                                                            A-3943-16T1
                                        21
         The omitted instruction – commonly known as a Hampton-Kociolek4

charge – advises the jury its "function [is] to determine whether or not [any

written or oral] statement was actually made by the defendant, and if made,

whether the statement or any portion of it is credible." Model Jury Charges

(Criminal), “Statements of Defendant” (rev. June 14, 2010).               As to oral

statements, particularly, jurors are told:

                    In considering whether or not an oral statement
              was actually made by the defendant, and, if made,
              whether it is credible, you should receive, weigh and
              consider this evidence with caution based on the
              generally recognized risk of misunderstanding by the
              hearer, or the ability of the hearer to recall accurately
              the words used by the defendant. The specific words
              used and the ability to remember them are important to
              the correct understanding of any oral communication
              because the presence, or absence, or change of a single
              word may substantially change the true meaning of
              even the shortest sentence.
                    You should, therefore, receive, weigh and
              consider such evidence with caution.

              [Ibid.]

After the judge's discussion of each statement and an instruction on how to

assess a statement's credibility, the instruction continues in pertinent part: " If,

after consideration of all these factors, you determine that the statement was not



4
    State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957).
                                                                             A-3943-16T1
                                        22
actually made, or that the statement is not credible, then you must disregard the

statement completely." Ibid.

      Whenever a defendant's oral or written statements are introduced, trial

courts are mandated to give the instruction whether requested by defendant or

not. State v. Jordan, 147 N.J. 409, 425, 428 (1997). The failure to give the

charge

             is not reversible error per se. It is reversible error only
             when, in the context of the entire case, the omission is
             "clearly capable of producing an unjust result. . . ." R.
             2:10-2. That problem would arise most frequently
             when the defendant's statement is critical to the State's
             case and when the defendant has challenged the
             statement's credibility.

             [Id. at 425.]

The omission of the charge "imposes a significant burden on the State to

demonstrate that such error is not plain error." Id. at 430.

      The credibility of the statements is not really in issue in this case. Thus,

contrary to the State's assertion, the general credibility instruction did not rectify

the court's failure to give the Hampton-Kociolek charge. See State v. Setzer,

268 N.J. Super. 553, 563-65 (App. Div. 1993) (holding the omission of a

Hampton charge was not clearly capable of producing an unjust result when a

general credibility charge was given); see also Jordan, 147 N.J. at 429. The


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issues are whether defendant wrote the letters and was the person present at the

crime scene who made the statements.

      The authorship of the letters was hotly contested. Not only was the State's

expert unable to conclude defendant wrote the letters, a jail employee called by

the defense testified that the jail did not have a procedure to identify the sender

of outgoing mail from the jail. As the State noted in its merits brief, defense

counsel, in questioning the victim, highlighted that the letter to him "was dated

a week after the crime at a time when the details of the crime were known to

many and were supplied to the media by law enforcement." Those letters were

critical evidence in this case where the defense was misidentification. In the

letter to the victim, the writer apologized and confessed, giving details about the

events leading up to, during and after the crimes that matched the victim's

account. The letter to the detective, likewise, linked defendant to the crime,

asking for the return of the bicycles found near the crime scene; the detective

testified that the tracks he found, shortly after the crimes were committed and

leading to the bicycles' location, were fresh. He also testified that he did not

recover fingerprints after he processed the bicycles.

      In arguing that the failure to give the charge was not plain error, the State

points to the other evidence against defendant: the victim's detailed description


                                                                           A-3943-16T1
                                       24
of the attack; the victim's in-court identification of defendant who was not

wearing a mask during the crimes; a witness's testimony that on the night the

crimes occurred, he recognized the men depicted in the composite sketches

shown on a television news program and, on the night prior thereto, saw the

victim's car parked in front of a house in which he saw defendant and Ridgeway

drinking from a bottle of Maker's Mark bourbon, which the witness later

retrieved from defendant's garbage and handed over to the police; Ridgeway's

possession of black gloves and a black beanie hat, similar to garb the victim

believed was worn by an assailant, as well as the victim's car keys and iPhone

in the box with which it was taken; defendant's possession of gloves and a jacket

similar to that the victim believed was worn by an assailant; DNA evidence

matching defendant to one cigarette butt found in the victim's car and Ridgeway

to another butt which also contained a minor DNA profile matching defendant;

and DNA evidence indicating there were three contributors to one swab taken

from the Maker's Mark bourbon bottle, from which defendant and Ridgeway

could not be excluded as partial contributors and another which matched only

Ridgeway as one of three contributors.

      "If . . . the defendant's statement is unnecessary to prove defendant's guilt

because there is other evidence that clearly establishes guilt, or if the defendant


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                                       25
has acknowledged the truth of his statement, the failure to give a Hampton

charge would not be reversible error." Jordan, 147 N.J. at 425-26. We do not

conclude the State's evidence, aside from the statements, clearly establishes his

guilt. The victim was not one-hundred percent certain that the clothes found in

defendant's and Ridgeway's possession were those worn by the perpetrators.

The witness's testimony and DNA evidence, linking defendant to the victim's

car and the Maker's Mark bottle, and the victim's property in Ridgeway's

possession, perhaps links defendant to stolen property but does not directly

establish defendant's presence in the house during the crimes. And the victim

was unable to identify defendant from a photo array.

      Furthermore, the value of the victim's in-court identification was

enhanced by the trial court's erroneous instruction that the victim made an out -

of-court identification of defendant. During the identification jury instruction,

the court advised that the State presented the victim as a witness and he

identified defendant in court as the person who committed the crime. The court

went on to instruct that "[t]he State also presented the testimony that on a prior

occasion before this trial [the victim] identified the defendant and aided in the

preparation of a composite drawing."        Where, as here, the defense was

misidentification, the erroneous instruction on that material issue is presumed


                                                                          A-3943-16T1
                                       26
to be reversible error.     State v. Marshall, 173 N.J. 343, 359 (2002).

      Contrary to the State's argument that the court's comment about the out-

of-court identification was "a fleeting mention in the entirety of his charge

regarding identification," the judge went on to reference the out-of-court

identification six more times in instructing the jury how to evaluate the

identifications. We note the State's argument that the instruction was generally

accurate because the victim testified that when he viewed the array:

            I saw [defendant], that I thought was [defendant] and
            some of these pictures look incredibly similar to one
            another. And I kept staring at these two and it was, I
            could take a guess I could say it's that one, and I have a
            [fifty] percent chance of being correct. And I kept
            looking at the two. And then I just bailed. I said I can't
            say one hundred percent of the time that's him because
            they look – what if I pick the wrong one and that guy
            gets in trouble? So I chose instead of guessing at a
            50/50 chance of being right I just said no, I can't say
            [one hundred] percent of the time. And they look close
            to together. The one I was leaning to was [defendant]
            ....

The emphasis by the court on the out-of-court identification, however, could

very well have swayed the jury to think that that non-identification was actually

an out-of-court identification that they should consider.

      Without the statements, the paucity of clear evidence of defendant's guilt

leads us to conclude that the failure to give the Hampton-Kociolek charge also


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                                       27
warrants reversal. This is one of those "rare cases" where the failure to give

both of those charges, in combination with the erroneous identification charge

and the admission of the hearsay information that either impliedly or directly

suggested that non-testifying witnesses implicated defendant in the crime,

constrain us to reverse defendant's convictions.

                                      IV.

      In light of our decision, we need not consider defendant's Point IV

sentencing arguments.

      Reversed and remanded. We do not retain jurisdiction.




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