NOT FOR PUBLICATION WITHOUT THE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-1529-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARNELL REED a/k/a DEMETRIUS
HINES, DARRELL JENKINS, DARNELL
OXFORD, and AARON PACKERSON,
Defendant-Appellant.
________________________________
Argued May 30, 2017 – Decided July 6, 2017
Before Judges Sabatino, Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 13-
08-1920.
Tamar Y. Lerer, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. Lerer, of counsel and on the briefs).
Tiffany M. Russo, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Carolyn A. Murray,
Acting Essex County Prosecutor, attorney; Ms.
Russo, of counsel and on the brief).
PER CURIAM
Following a three-day jury trial, defendant Darnell Reed was
convicted of third-degree resisting arrest by physical force,
N.J.S.A. 2C:29-2(a)(3)(a). The trial judge imposed a
discretionary extended nine-year term of imprisonment with a
discretionary four-and-one-half-year period of parole
ineligibility, to run consecutive to a 364-day sentence defendant
was serving on an unrelated violation of probation conviction.
Defendant appeals from his conviction and sentence.
Defendant raises the following issues on appeal:
POINT I
THE FAILURE TO INSTRUCT THE JURY THAT
DEFENDANT HAD THE RIGHT TO RESIST THE
OFFICERS' USE OF UNLAWFUL FORCE REQUIRES
REVERSAL OF HIS CONVICTIONS. (NOT RAISED
BELOW).
POINT II
BECAUSE THE JUDGE FAILED TO INSTRUCT THE JURY
THAT A GUILTY VERDICT REQUIRED UNANIMITY AS
TO THE VICTIM, THE DANGER OF A PATCHWORK
VERDICT REQUIRES REVERSAL. (NOT RAISED
BELOW).
POINT III
DEFENDANT'S SENTENCE, WHICH CONSISTS OF BOTH
A DISCRETIONARY EXTENDED TERM AND A
DSICRETIONARY PAROLE DISQUALIFIER, IS
MANIFESTLY EXCESSIVE.
POINT IV
DEFENDANT IS ENTITLED TO 115 DAYS OF GAP-TIME
CREDIT.
2 A-1529-15T2
REPLY POINT I
THE FAILURE TO INSTRUCT THE JURY ON SELF-
DEFENSE WAS PLAIN ERROR, CLEARLY CAPABLE OF
PRODUCING AN UNJUST RESULT.
REPLY POINT II
THE FAILURE TO SPECIFY THE VICTIM OF THE
ALLEGED RESISITING RESULTED IN THE RISK OF A
NON-UNANIMOUS VERDICT.
We derive the following facts from the evidence presented at
trial. On April 1, 2013, at approximately 11:30 a.m., Officers
Louis Weber and Manuel Souto of the Newark Police Department were
patrolling the area of North Munn Avenue in Newark in an unmarked
police car. Both officers were dressed in plainclothes. As their
unmarked vehicle approached the intersection of North Munn and
Mountainside Avenues, they observed a car in front of the Bradley
Court Housing Complex, with one occupant, later identified as
defendant, in the driver's seat. They observed a "black male"
leaning into the driver's side window.
As the officers attempted to investigate further, an
unidentified person yelled a code word to warn that police were
in the area. After the warning, the individual by the driver's
side window walked away, and the defendant drove off with the
officers following in their unmarked car. Despite defendant's
vehicle having tinted windows, the officers testified that
defendant was not wearing a seatbelt.
3 A-1529-15T2
According to the officers, defendant was driving erratically.
After following defendant to the intersection of Maybaum and
Tremont Avenues, the officers activated their lights and siren,
at which point defendant pulled over.
Officer Weber approached the passenger side of defendant's
vehicle, while Officer Souto approached the driver's side.
According to Officer Weber, defendant was holding a "brick of
heroin" in his hands.1 After being alerted to this by Officer
Weber, Officer Souto asked defendant to step out of the vehicle
because he was under arrest for possession of drugs. According
to the officers, defendant stepped out of his car holding the
brick of heroin, then dropped it and attempted to flee.
An Essex County grand jury returned an indictment charging
defendant with third-degree possession of heroin, N.J.S.A. 2C:35-
10a(1) (count one); third-degree possession of heroin with intent
to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two);
third-degree possession of heroin with intent to distribute within
1,000 feet of school property, N.J.S.A. 2C:35-7(a) and 2C:35-
5(a)(1) (count three); third-degree possession of heroin with
intent to distribute within 500 feet of a public housing facility,
1
Officer Weber testified that a brick of heroin is "fifty smaller
envelopes of heroin wrapped in a bundle, then wrapped in newspaper
for distribution."
4 A-1529-15T2
N.J.S.A. 2C:35-7.1(a) and 2C:35-5(a)(1) (count four); two counts
of fourth-degree aggravated assault on a law enforcement officer,
N.J.S.A. 2C:12-1(b)(5)(a) (counts five and six); second-degree
attempt to disarm a law enforcement officer, N.J.S.A. 2C:12-11(a)
(count seven); and third-degree resisting arrest by use of physical
force, N.J.S.A. 2C:29-2(a)(3)(a) (Count Eight).
Tried to a jury, defendant was convicted of third-degree
resisting arrest, but found not guilty of the remaining seven
charges. In charging the jury, the trial judge did not provide a
self-defense instruction. Defendant did not object to the jury
charges.
On December 1, 2014, defendant appeared for sentencing. After
granting the State's motion for a discretionary extended term and
a discretionary period of parole ineligibility, the trial judge
imposed a nine-year term of imprisonment subject to a four-and-
one-half-year period of parole ineligibility. The sentence was
made consecutive to a 364-day sentence defendant was serving on
an unrelated violation of probation conviction. Although the
trial judge awarded defendant twelve days credit for time served,
he did not award defendant any gap-time credit.
I.
Defendant contends that the trial court's failure to instruct
the jury that defendant had the right to resist the officers' use
5 A-1529-15T2
of unlawful force constituted plain error, clearly capable of
producing an unjust result.
"An essential ingredient of a fair trial is that a jury
receive adequate and understandable instructions." State v.
McKinney, 223 N.J. 475, 495 (2015) (quoting State v. Afanador, 151
N.J. 41, 54 (1997)). "At the heart of the guarantee of a fair
trial is the 'jury's impartial deliberations upon the guilt of a
criminal defendant based solely upon the evidence in accordance
with proper and adequate instructions . . . .'" State v. Collier,
90 N.J. 117, 122 (1982) (quoting State v. Simon, 79 N.J. 191, 206
(1979)).
The trial court must give "a comprehensible
explanation of the questions that the jury
must determine, including the law of the case
applicable to the facts that the jury may
find." Thus, the court has 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. Baum, 224 N.J. 147, 159 (2016)
(citations omitted).]
"Jury instructions have been described as a 'road map to
guide the jury[;] without an appropriate charge, a jury can take
a wrong turn in its deliberations.'" McKinney, supra, 223 N.J.
at 495 (alteration in original) (quoting State v. Martin, 119 N.J.
2, 15 (1990)). "Because proper jury instructions are essential
6 A-1529-15T2
to a fair trial, erroneous instructions on material points are
presumed to possess the capacity to unfairly prejudice the
defendant." Ibid. (citations omitted); see also State v. Jordan,
147 N.J. 409, 422 (1997) (finding that some jury instructions are
"so crucial to the jury's deliberations on the guilt of a criminal
defendant that errors in those instructions are presumed to be
reversible"). "Therefore, '[e]rroneous instructions are poor
candidates for rehabilitation as harmless, and are ordinarily
presumed to be reversible error.'" McKinney, supra, 223 N.J. at
495-96 (alteration in original) (quoting Afanador, supra, 151 N.J.
at 54); see also Baum, supra, 224 N.J. at 159 (erroneous
instructions on material points are presumed to possess the
capacity to unfairly prejudice the defendant). The plain error
analysis of an erroneous jury charge mandates that the reviewing
court examine the charge as a whole to determine its overall
effect. McKinney, supra, 223 N.J. at 494.
Defendant did not object to the jury charges at trial and
raised the claim of error for the first time on appeal.
"Consequently, we must consider this issue under the plain error
rule." State v. Walker, 203 N.J. 73, 89 (2010) (citing R. 2:10-
2); see also State v. Burns, 192 N.J. 312, 341 (2007). Our Supreme
Court has established that
7 A-1529-15T2
[i]n the context of jury instructions, plain
error is "[l]egal impropriety in the charge
prejudicially affecting the substantial
rights of the defendant and sufficiently
grievous to justify notice by the reviewing
court and to convince the court that of itself
the error possessed a clear capacity to bring
about an unjust result."
[State v. Camacho, 218 N.J. 533, 554 (2014)
(quoting State v. Adams, 194 N.J. 186, 207
(2008)).]
"Therefore, we may reverse only if the unchallenged error was
'clearly capable of producing an unjust result.'" Ibid. (quoting
R. 2:10-2). "We consider alleged error in light of 'the totality
of the entire charge, not in isolation.'" Burns, supra, 192 N.J.
at 341 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).
"Nevertheless, because clear and correct jury instructions are
fundamental to a fair trial, erroneous instructions in a criminal
case are 'poor candidates for rehabilitation under the plain error
theory.'" Adams, supra, 194 N.J. at 207 (quoting Jordan, supra,
147 N.J. at 422).
"The standard for assessing the soundness of a jury
instruction is 'how and in what sense, under the evidence before
them, and the circumstances of the trial, would ordinary . . .
jurors understand the instructions as a whole.'" State v. Savage,
172 N.J. 374, 387 (2002) (quoting Crego v. Carp, 295 N.J. Super.
565, 573 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997)).
8 A-1529-15T2
"[T]he test to be applied . . . is whether the charge as a whole
is misleading, or sets forth accurately and fairly the controlling
principles of law." McKinney, supra, 223 N.J. at 496 (quoting
State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)
(alteration in original), certif. denied, 153 N.J. 49 (1998)).
The resisting arrest jury instruction stated in part:
Count Eight of the indictment charges the
defendant with the crime of resisting arrest
by using or threatening to use force or
physical violence against Officer Souto and/or
Officer Weber.
The Statute on which this charge is based
reads as follows: A person is guilty of an
offense if he purposely prevents or attempts
to prevent a law enforcement officer from
effecting an arrest, uses or threatens to use
physical force or violence against the law
enforcement officer or another.
In order to convict the defendant of this
charge, the State first must prove beyond a
reasonable doubt that defendant committed the
basic offense of resisting arrest.
. . . .
The second element that State must prove
beyond a reasonable doubt is that Officer
Souto and Officer Weber were effecting an
arrest. It is not a defense to a prosecution
under this subsection that the law enforcement
officer was acting unlawfully in making the
arrest, provided he was acting under color of
his official authority and provided the law
enforcement officer announces his intention to
arrest prior to the resistance.
. . . .
9 A-1529-15T2
If you find the State has proven beyond a
reasonable doubt all five elements of the
offense: (1), that Officer Souto and/or
Officer Weber were law enforcement officers;
(2), Officer Souto and/or Officer Weber were
effecting an arrest; (3), that defendant knew
or had reason to know that Officer Souto
and/or Officer Weber were law enforcement
officers effecting an arrest; (4) that
defendant purposely prevented or attempted to
prevent Officer Souto and/or Officer Weber
from effecting the arrest; (5) that the
defendant used or threatened to use physical
force or violence against a law enforcement
officer or another, then you must find the
defendant guilty of resisting arrest.
Defendant contends the trial court committed plain error by
failing to instruct the jury that a defendant can lawfully defend
himself against an officer's use of unlawful force when effecting
an arrest. More specifically, defendant argues that the trial
court should have given Model Charge (Criminal), "Justification -
Self-Defense, Resisting Arrest (N.J.S.A. 2C:3-4)," (October 17,
1988) as part of its resisting arrest instructions. Defendant
contends that the failure to charge self-defense violated his
rights to due process and a fair trial as guaranteed to him by the
Fourteenth Amendment, U.S. Const. amends. VI, XIV, and the N.J.
Const. art. I, ¶ ¶ 1, 9, 10. We agree.
A law enforcement officer may use force when making an arrest
if he or she "reasonably believes that such force is immediately
necessary to effect a lawful arrest." N.J.S.A. 2C:3-7(a). "If
10 A-1529-15T2
the citizen resists the arrest, the officer is not only justified
in but has the duty of employing such force as is reasonably
necessary to overcome the resistance and accomplish the arrest."
State v. Mulvihill, 57 N.J. 151, 156 (1970). "Accordingly, in our
State, when an officer makes an arrest, legal or illegal, it is
the duty of the citizen to submit and, in the event the seizure
is illegal, to seek recourse in the courts for the invasion of his
right of freedom." Id. at 155-56. However, our law also
authorizes a civilian's use of force in self-protection while
being placed under arrest in certain limited circumstances. "If,
in effectuating the arrest or the temporary detention, the officer
employs excessive and unnecessary force, the citizen may respond
or counter with the use of reasonable force to protect himself,
and if in doing so the officer is injured no criminal offense has
been committed." Id. at 156; see also N.J.S.A. 2C:3-4(b)(1)(a)
(although a person may not use force to resist arrest simply
because the arrest is unlawful, he or she may use force if the
officer employs unlawful force to effect such arrest). The citizen
cannot use greater force in protecting himself from the officer's
unlawful force than appears necessary under the circumstances, and
he loses his privilege of self-defense if he knows that if he
submits to the officer, the officer's excessive use of force will
cease. Mulvihill, supra, 57 N.J. at 157. The rule is designed
11 A-1529-15T2
to protect a person's bodily integrity and health as "the law
recognizes that liberty can be restored through legal processes
but life or limb cannot be repaired in a courtroom." Id. at 156.
A self-defense charge is required when "any evidence raising
the issue of self-defense is adduced, either in the State's or the
defendant's case." State v. Kelly, 97 N.J. 178, 200 (1984). If
such evidence is present, "then the jury must be instructed that
the State is required to prove beyond a reasonable doubt that the
self-defense claim does not accord with the facts; [and] acquittal
is required if there remains a reasonable doubt whether the
defendant acted in self-defense." Ibid; see also State v. Gentry,
439 N.J. Super. 57, 63 (App. Div. 2015) (holding that a self-
defense instruction is required, even when not requested, where
the evidence indicates a rational basis for instructing it).
"[B]ecause self-defense must be charged if the evidence,
viewed most favorably to the defendant, would support that
justification, we focus on 'the evidence that provides a rational
basis for a self-defense charge.'" Gentry, supra, 439 N.J. Super.
at 63 (quoting State v. Rodriguez, 195 N.J. 165, 170 (2008)).
Here, defendant was repeatedly struck in the rib area and was
thrown to the ground. He suffered a bloodied and swollen face.
Photographs depicted defendant's blood on the pavement at the
scene of the arrest. More than ten of defendant's dreadlocks were
12 A-1529-15T2
forcibly ripped from his scalp. He required treatment at a
hospital for his injuries. Defendant still suffers from a "knot"
in his ribcage.
Viewed most favorably to the defendant, the evidence
supported a finding that the officers used unnecessary and
excessive force against defendant, thereby providing a rational
basis for a self-defense charge. Therefore, the trial court should
have given the jury a self-defense charge as part of its resisting
arrest instructions. Kelly, supra, 97 N.J. at 200; State v. Simms,
369 N.J. Super. 466, 472-73 (App. Div. 2004). The failure to
instruct the jury that legitimate self-defense is a justification
for resisting arrest where the facts reasonably could support that
defense constitutes plain error. Simms, supra, 369 N.J. Super.
at 473.
In Simms, the defendant was convicted of third-degree
resisting arrest, although being acquitted of the companion third-
degree charge of assaulting an officer. Id. at 468. During the
trial, the defendant testified that after he had submitted to the
arrest, "[the officer] had slammed his body into the wall and was
trying to slam his head into the wall." Id. at 473. We concluded
that the "jury could have found . . . that [the officer] was using
unreasonable and excessive force in attempting an arrest and that
defendant reasonably feared for his physical safety, justifying
13 A-1529-15T2
him in using such force as was reasonably necessary . . . to
[break-away]." Ibid. Therefore, the defendant was entitled to a
self-defense charge and its omission from the jury instructions
was plain error. Ibid.
Here, the jury was instructed that a person is not entitled
to resist even an unlawful arrest, but was not instructed that
when an officer uses excessive and unnecessary force in
effectuating an arrest, a citizen may respond or counter with the
use of reasonable force to protect himself. The jury instructions,
however, did not address self-defense. Absent an appropriate
self-defense instruction, the jury was effectively prevented from
considering whether the officers employed unlawful force, and
whether defendant reasonably believed it was necessary to use
force to protect himself.
We further note that the jury acquitted defendant of seven
of the eight charges, including simple possession of heroin,
aggravated assault of a law enforcement officer, and attempting
to disarm a law enforcement officer. It is likely that the jury
found aspects of the testimony of the State's witnesses to be less
than credible. Given these circumstances, the evidence of guilt
can hardly be characterized as overwhelming. Cf. State v. Sowell,
213 N.J. 89, 107 (2013); State v. Marrero, 148 N.J. 469, 497
(1997).
14 A-1529-15T2
By failing to include a self-defense charge, the jury
instructions possessed a clear capacity to bring about an unjust
result, constituting plain error. R. 2:10-2. Therefore, we
reverse defendant's conviction for resisting arrest, and remand
the case for a new trial. During the retrial, the jury shall
receive an appropriate self-defense instruction. In holding that
the evidence was at least sufficient to require submission of the
issue of self-defense to the jury, we express no view as to whether
defendant's version of the facts should be accepted.
In light of our ruling, we need not reach defendant's argument
that his extended sentence was manifestly excessive.
II.
We also need not reach defendant's argument that the repeated
use of the term "and/or" in the jury instructions injected
ambiguity into the jury's consideration of the proofs. Instead,
we offer the following guidance to the trial court on remand.
The resisting arrest charge given by the trial judge included
the phrase "Officer Souto and/or Officer Weber" nine times. By
way of example, the jury charge stated:
The four elements of that offense are: (1),
that Officer Souto and/or Officer Weber were
law enforcement officers; (2), that Officer
Souto and/or Officer Weber were effecting an
arrest; (3), that defendant knew or had reason
to know that Officer Souto and/or Officer
Weber were law enforcement officers effecting
15 A-1529-15T2
an arrest; (4), that defendant purposely
prevented or attempted to prevent Officer
Souto and/or Officer Weber from effecting the
arrest.
. . . .
The fourth element that the State must prove
beyond a reasonable doubt is that defendant
purposely prevented or attempted to prevent
Officer Souto and/or Officer Weber from
effecting the arrest.
[(emphasis added).]
The verdict sheet did not require the jury to determine the
identity of the officer against whom defendant resisted.
As a result, the jury instructions and the verdict sheet
allowed the jury to find defendant guilty of resisting arrest
without agreeing on the identity of the officer subjected to the
alleged resistance. Defendant contends that this allowed for a
non-unanimous verdict.
In a criminal prosecution, the State must prove each element
of the offense beyond a reasonable doubt. State v. Medina, 147
N.J. 43, 49 (1996) (citing In re Winship, 397 U.S. 358, 364, 90
S.Ct. 1068, 1072-73, 25 L.Ed. 2d 368, 375 (1970)), cert. denied,
520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed.2d 688 (1997). "[T]he
possibility that defendant may have been sentenced based on a
less-than-unanimous verdict . . . seriously implicates defendant's
substantive rights." State v. Shomo, 129 N.J. 248, 260 (1992).
16 A-1529-15T2
The unanimity rule mandates unanimous agreement on each element
of the offense. State v. Gentry, 183 N.J. 30 (2005). Accordingly,
the jury must unanimously agree "on which acts were committed
against which victim." Id. at 33. Here, the jurors must agree
unanimously which officer was the victim of resisting arrest.
Recently, in State v. Gonzalez, 444 N.J. Super. 62, 75-76
(App. Div.), certif. denied, 226 N.J. 209 (2016), we overturned a
conviction because of the improper use of the inherently confusing
phrase "and/or" in a jury instruction, which injected ambiguity
into the charge in the discrete factual context of that case.
Here, Officers Weber and Souto attempted to place defendant
under arrest. The indictment does not identify the officer(s)
that defendant resisted by the use of physical force. It is,
therefore, possible that some jurors thought that defendant was
resisting Officer Weber and not Officer Souto, while other jurors
thought defendant was resisting Officer Souto but not Officer
Weber. If that occurred, defendant is theoretically correct that
such a "patchwork verdict" would not satisfy the constitutional
requirement of a unanimous finding of guilt. See ibid.
While the facts here suggest that defendant's conduct was
likely directed at both arresting officers, on remand the trial
court should consider avoiding the use of the term "and/or" in the
jury instructions. The court further should consider identifying
17 A-1529-15T2
each alleged victim in the verdict sheet. Doing so would eliminate
possible confusion and the potential for a non-unanimous verdict.
III.
Relying on our decision in State v. Ogletree, 435 N.J. Super.
11 (App. Div.), certif. denied, 220 N.J. 40 (2014), defendant
argues that he is entitled to 115 days of gap-time credit for the
time after the imposition of the 364-day sentence for violation
of probation until the sentencing in this case.
Pursuant to N.J.S.A. 2C:44-5(b), a defendant who is given two
separate sentences on two different dates is awarded gap-time
credit toward the second sentence for the time spent in custody
since he or she began serving the first sentence. State v.
Hernandez, 208 N.J. 24, 38 (2011). The State concedes that
defendant is entitled to 115 days of gap-time credit. Therefore,
defendant shall receive 115 days of gap-time credit if he is
convicted again on the retrial.
Reversed and remanded for a new trial. We do not retain
jurisdiction.
18 A-1529-15T2