State of New Jersey v. Daniel Matthews
CourtNew Jersey Superior Court Appellate Division
Date FiledNovember 13, 2026
DocketA-3051-24
StatusUnpublished
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Full Opinion
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3051-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL MATTHEWS, a/k/a
MARCUS MATTHEWS,
Defendant-Appellant.
Argued October 7, 2026 – Decided November 13, 2026
Before Judges Currier, Marczyk, and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 24-04-
0173.
Zachary G. Markarian, Assistant Deputy Public
Defender, argued the cause for appellant (Jennifer N.
Sellitti, Public Defender, attorney; Zachary G.
Markarian, of counsel and on the briefs).
Emily M. M. Pirro, Assistant Prosecutor, argued the
cause for respondent (John P. McDonald, Somerset
County Prosecutor, attorney; Emily M. M. Pirro, of
counsel and on the brief).
PER CURIAM
Defendant appeals from his convictions for the murder and robbery (and
additional charges) of Artis Young after a jury trial, alleging error in the jury
charges. After a review of the contentions in light of the record and applicable
principles of law, we affirm.
I.
Defendant and co-defendant, Andrew Mumby, were charged in an
indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one);
first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree
robbery, N.J.S.A. 2C:15-1(a)(1), (2), and (3) (count three); second-degree
conspiracy to disturb human remains, N.J.S.A. 2C:5-2(a)(1) and (2) (count
four); second-degree disturbing human remains, N.J.S.A. 2C:22-1(a)(1) (count
five); and two counts of third-degree hindering apprehension, N.J.S.A. 2C:29-
3(a)(3) and N.J.S.A. 2C:29-3(b)(1) (counts six and seven).
In October 2024, Mumby pleaded guilty to count one, as amended to first-
degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), in exchange for
testifying against defendant at trial and a recommended sentence of twenty years
imprisonment with an eighty-five percent parole ineligibility period in
accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
A-3051-24
2
During the 2025 trial, Mumby testified that on December 29, 2023, he and
defendant were at defendant's home in Franklin Township "[s]moking weed,
listening to music, [and] watching videos."
Mumby stated he was sleeping downstairs when defendant "woke [him]
up and told [him] to come upstairs" because defendant "was going to rob" Young
of "[s]ome weed." Young had arrived at the house with marijuana while Mumby
was sleeping. Mumby went upstairs with defendant and grabbed Young, while
defendant choked Young with a string. Mumby stated that he "let go" of Young
but defendant kept holding on and wrestled Young to the floor, strangling him
"until he was dead." Mumby recalled Young bleeding from his head.
Thereafter, defendant pulled Young's car into the driveway and asked Mumby
to "help him put [Young] in the trunk," which Mumby did.
Mumby testified he and defendant drove to defendant's girlfriend's house
in Brooklyn late that night. They "went inside the apartment and then came back
out, went to the car and [defendant] told [Mumby] to take [Young's] clothes off."
After defendants removed Young's clothes, they "drove around the street and
left [Young's] body on the sidewalk." They then drove to the Bronx to
defendant's sister's house where they cleaned the car, "[t]ook off the license
plates," and left them "[s]omewhere in the area." The pair then took the train
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back to New Jersey and got into a cab to return to defendant's house. Mumby
testified the cab stopped at a store on the way, but he did not go inside.
The jury reviewed surveillance footage obtained from three locations: the
area of the Bronx where Young's car was found; a supermarket in Somerset
where defendant and Mumby stopped on the cab ride; and the cab's arrival at
defendant's house in Franklin Township.
At some point in the early morning hours of December 30, 2023,
defendant was captured on a surveillance camera in the Bronx and appeared to
be dancing next to the car in which Young's body was still concealed.
Somerset County Prosecutor's Office Detective Thomas Laird testified the
date and time stamp on the video from the supermarket surveillance footage
showed defendant in the store on December 30, 2023, at 10:25 p.m. After
watching the footage, Laird walked the same path in the store as the man in the
video and determined the man purchased a bottle of bleach.
Shameka Nicole Downing, who has a son with Young, testified she last
saw Young on December 29, 2023, when he left a house with a bookbag
containing marijuana packaged in freezer bags. Young answered the phone
when Downing called him around 6:00 p.m., but her call at 9:00 p.m. went to
his voicemail, and she did not speak to him again.
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On December 30, 2023, the New York City Police Department (NYPD)
received a 9-1-1 call about an unconscious man on a sidewalk in Brooklyn.
When police arrived at the scene, they found a deceased man, later identified as
Young, wearing "nothing but underwear," with "ligature marks on [his] neck"
and "bruising around [his] body." The medical examiner performed an autopsy
and concluded Young died by ligature strangulation.
Detectives later located Young's vehicle in the South Bronx after
"receiv[ing] information . . . that a [license plate reader] . . . [and] cameras had
picked up the vehicle in that area." The front and rear license plates had been
removed from the car, but the VIN number on the driver's side dash confirmed
the car was Young's. A search of the car identified reddish-brown stains in the
trunk consistent with blood.
Bloodstains were also found in defendant's garage. A sweatshirt found in
defendant's home tested positive for blood. Further DNA testing analysis
revealed "very strong support" for the conclusion that defendant and Young
were contributors to the DNA mixtures developed from the sweatshirt.
Cell phone records traced the movement of phones owned by Mumby,
Young, and a person who lived in an apartment near where Young's body was
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found.1 The number on the tenant's phone was listed in Mumby's contacts as
belonging to defendant, using a nickname. This evidence revealed all three
phones were near defendant's house in Franklin Township on December 29,
2023, from 6:23 p.m. through 9:54 p.m. The phone number assigned to Young
went dark for a period of time before being located in the Bronx on the morning
of December 30, 2023. Mumby's phone was detected at defendant's house on
December 29 and 30. The phone affiliated with the Bronx tenant left defendant's
house and was located in the area of the Goethals Bridge, the Verrazano Bridge,
and then in Brooklyn at the location of Young's body, before returning to
defendant's home. A search of Mumby's phone revealed that, on December 30,
2023, at 11:41 a.m., Mumby texted a photograph of a freezer bag of marijuana
to an unidentified individual.
The jury acquitted defendant of felony murder but convicted him of the
remaining charges in the indictment.
The court sentenced defendant to fifty years imprisonment for the murder
conviction and twenty years imprisonment for the first-degree robbery
conviction, subject to an eighty-five percent period of parole ineligibility
pursuant to NERA. The court merged counts four and five and imposed a ten-
1
Defendant was also listed as a tenant of the apartment.
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6
year sentence on that count; and the court sentenced defendant to five years
imprisonment on each count of third-degree hindering. The sentences all ran
concurrently.
II.
On appeal, defendant raises the following points for our consideration:
POINT I
[DEFENDANT'S] MURDER CONVICTION MUST
BE REVERSED BECAUSE THE COURT
ERRONEOUSLY INSTRUCTED THE JURY THAT
IT COULD NOT FIND [DEFENDANT] GUILTY AS
AN ACCOMPLICE TO THE LESSER-INCLUDED
MANSLAUGHTER OFFENSES, IN VIOLATION OF
WELL-SETTLED LAW.
POINT II
THE COURT'S USE OF "AND/OR" THROUGHOUT
ITS CONJOINED ACCOMPLICE LIABILITY
CHARGE FOR THE MURDER AND ROBBERY
COUNTS FAILED TO ENSURE THAT THE JURY
REACHED A UNANIMOUS VERDICT ON EACH
DISTINCT COUNT.
Defendant challenges two jury instructions, contending they are reversible
error requiring a new trial.
Appropriate and proper jury instructions are essential for a fair trial. State
v. Scharf, 225 N.J. 547, 581 (2016). "[E]rroneous instructions are poor
candidates for rehabilitation as harmless, and are ordinarily presumed to be
A-3051-24
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reversible error." State v. McKinney, 223 N.J. 475, 495-96 (2015) (quoting
State v. Afanador, 151 N.J. 41, 54 (1997)).
"Nonetheless, not every improper jury charge warrants reversal and a new
trial. 'As a general matter, [appellate courts] will not reverse if an erroneous
jury instruction was "incapable of producing an unjust result or prejudicing
substantial rights."'" Prioleau v. Kent. Fried Chicken, 223 N.J. 245, 257 (2015)
(alteration in original) (quoting Mandal v. Port Auth. of N.Y. & N.J., 430 N.J.
Super. 287, 296 (App. Div. 2013)).
The charge must be read as a whole, and not just the challenged portion,
to determine its overall effect. State v. Garrison, 228 N.J. 182, 201 (2017). "The
test to be applied . . . is whether the charge as a whole is misleading, or sets forth
accurately and fairly the controlling principles of law." State v. Baum, 224 N.J.
147, 159 (2016) (alteration in original) (quoting State v. Jackmon, 305 N.J.
Super. 274, 299 (App. Div. 1997)).
Instructions given in accordance with the model jury charge, or which
closely track the model jury charge, are generally not considered erroneous.
Mogull v. CB Com. Real Est., 162 N.J. 449, 466 (2000). See State v. Ramirez,
246 N.J. 61, 70 (2021) (finding no plain error where the "judge read the model
A-3051-24
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charge verbatim, and no objection to the endangering instruction was made at
trial").
A.
In his first contention regarding the jury charges, defendant asserts "[t]he
trial court erroneously charged the jury that, if it found [defendant] acted as an
accomplice in causing Young's death, it could only convict [defendant] of
murder and not either of the charged lesser[-]ncluded offenses of reckless and
aggravated manslaughter." Defendant notes that "[d]uring its lengthy
deliberations, the jury asked the court to clarify the offenses for which it could
find [defendant] guilty under an accomplice theory, and the [trial] court again
said it could not do so for aggravated or reckless manslaughter." Defendant
relies on State v. Bielkiewicz, 267 N.J. Super. 520, 534-36 (App. Div. 1993), to
support his contention.
To properly assess defendant's argument, we must add some context.
During the charge conference, the following colloquy took place:
THE COURT: Do both parties agree that aggravated
manslaughter and . . . manslaughter [are] appropriate
charge[s] for this case?
....
[DEFENSE COUNSEL]: I think the standard here,
Judge, is whether or not there's evidence in the record
A-3051-24
9
to support the lesser includeds and then the [c]ourt has
to charge them. [I] interpret things differently than the
State obviously. I just don't see the evidence in the
record that would support the lesser includeds.
THE COURT: But your theory, I think, is that
[defendant] wasn't involved at all with this part.
[DEFENSE COUNSEL]: Umm-hmm.
THE COURT: So I can understand your reasoning as
to not wanting it. But when you take into account Mr.
Mumby's testimony, there does appear to be a reckless
component to it. He didn't say rob and kill, he indicated
that we're going to rob him of his weed and it appears
that it got out of control and result[ed] in his death. So
there—they could find that there is a reckless
component to it.
[DEFENSE COUNSEL]: And, again, Judge, just so the
record's clear, I disagree. I think when you look at Mr.
Mumby's testimony, he says that [defendant]tthews put
a rope or a string around [Young's] neck and choked
him and then he was dead. It is not that—
THE COURT: Well, he fell on the floor.
[DEFENSE COUNSEL]: And he fell, right, he fell on
the floor, yeah.
[THE PROSECUTOR]: Judge, I just have grave
concern that not [including] lesser[-]included offenses,
if there's any possibility of the jury finding—I mean,
I've seen reversals on this. I saw a reversal not that long
ago on a case in this courthouse where, you know,
originally, I think the State asked for it and the defense
said no and then they reversed the conviction and said
A-3051-24
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well, the defense was wrong and they should have had
it.
THE COURT: Umm-hmm.
[THE PROSECUTOR]: I think if there is a possibility
the jury could find there was reckless conduct here and
that it wasn't purposeful or knowing but reckless, then
I think it shouldn't be there and, again, it's not my
theory of the case either, but—
THE COURT: Right.
[THE PROSECUTOR]: —I can see where they could
get there.
THE COURT: Well, the [c]ourt has to make its
decision and I do recall a case in which both parties
didn't want the charge and . . . the [c]ourt did charge
based on the evidence that was submitted and the
possibility that they could find an aggravated
manslaughter or reckless manslaughter.
Again, I do believe it's appropriate based on the
evidence that has been put forward by the State today
that they could find this defendant not guilty of murder
purposeful and knowingly, that he didn't have that
intent when he started and that it was really reckless
conduct on his part manifesting an extreme indifference
to the value of human life. So I will charge the lesser
included of aggravated manslaughter and manslaughter
in this case.
Therefore, over defendant's objection, the court charged the jury with the lesser-
included offenses of aggravated manslaughter and manslaughter.
A-3051-24
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Defendant reiterated his objection to the jury being instructed as to lesser-
included offenses during the discussion regarding the accomplice liability
charge. Defense counsel argued accomplice liability should not apply to
aggravated or reckless manslaughter. The following discussion ensued:
THE COURT: All right. Okay. Then we get to—we
have to go through this liability for another's conduct.
So are you saying the accomplice [charge] based on
what I'm reading here, which I agree with that it only
applies to the murder?
[THE PROSECUTOR]: And the robbery. So what I
suggested, and I think this is what defense counsel
agreed with me, is that . . . with regard to accomplice
liability, it applies obviously to the first Count 1, the
murder charge, but it does not apply to the lesser
includeds of agg[ravated] man[slaughter] and reckless
man[slaughter]. It also would apply to the robbery,
though what I proposed was striking all of the language
in there that dealt with agg[ravated] man[slaughter] or
reckless man[slaughter] and just leaving the robbery
language in.
[DEFENSE COUNSEL]: That's correct. And I've had
an opportunity to review that, as I know the [c]ourt has
as well.
The court then engaged in a lengthy discussion with counsel regarding the
instruction on accomplice liability. Counsel each made suggested edits, with
which the other attorney and court agreed.
A-3051-24
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The trial court again specifically asked to "go through in a little bit of
detail here because [it] want[ed] to make sure this lesser included part [wa]s
correct [with] regards to accomplice liability." While the parties were
discussing the robbery charges, defense counsel stated unprompted: "Judge, I
think—it's getting confusing here, but I would add that—that this principle of
law [accomplice liability]—not this specific language, but this principle of law
does not apply to agg[ravated] man[slaughter] or reckless man[slaughter] I
think."
Defendant continued to assert he wanted the jury to only consider
accomplice liability for the robbery charges, and not aggravated manslaughter
or reckless manslaughter. As the discussion continued, defense counsel stated,
"I think the record should reflect that this difficulty is coming because [of] the
lesser . . . includeds of aggravated manslaughter and reckless manslaughter."
Eventually, the trial court and counsel agreed on the following instruction:
THE COURT: Okay. So then let me just go over it
again, . . . to make sure everyone's in agreement.
So . . . if you . . . find the defendant guilty of the
specific charges [murder or first-degree robbery], then
you need not consider any lesser charges. If, however,
you find the defendant not guilty of murder acting as an
accomplice, you should go on to consider aggravated
manslaughter or reckless manslaughter. Accomplice
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liability is not applied to aggravated manslaughter or
reckless manslaughter.
[DEFENSE COUNSEL]: Yeah, I . . . would just add
. . . instead of just saying whether [to] go on to, whether
[defendant] is guilty or not guilty, right?
THE COURT: You should go on to consider
aggravated manslaughter or reckless manslaughter and
whether [defendant] is guilty or not guilty of those
lesser[-]included offenses.
Defense counsel added:
[DEFENSE COUNSEL]: If I can make a suggestion
that on . . . page . . . 38 where it says again, accomplice
status must be considered separately as it relates to each
offense, I would specifically say that as it relates to
murder, first degree robbery, second degree robbery.
That—I think that can't be any clearer than that.
THE COURT: Prosecutor, do you agree, or is that
going to confuse them?
[PROSECUTOR]: No. I think that's fine.
[(Emphasis added).]
The jury was ultimately charged with the following jury instruction
regarding accomplice liability for the murder and robbery charges:
If you find that the State has proven each one of
the elements as described above beyond a reasonable
doubt, then you must find the defendant guilty of
purposeful or knowing murder and/or first degree
robbery. If, on the other hand, you find the State had
failed to prove one or more of these elements beyond a
A-3051-24
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reasonable doubt, then you must find the defendant not
guilty of purposeful or knowing murder and/or first
degree robbery.
As I previously instructed, any verdict rendered
must be unanimous. All 12 deliberating jurors must
agree as to guilty or not guilty.
Now, as I have previously indicated, you will
initially consider whether the defendant should be
found not guilty or guilty of acting as an accomplice
with . . . Mumby with full and equal responsibility for
the specific crimes charged, murder and/or first degree
robbery. If you find the defendant guilty of the specific
charges, then you need not consider any lesser
charges. If, however, you find the defendant not guilty
of murder acting as an accomplice of . . . Mumby, you
should go on to consider the offenses of aggravated
manslaughter or reckless manslaughter and whether
[defendant] is guilty or not guilty of those lesser
included offenses. You are not, however, to consider
accomplice liability as to those offenses as it does not
apply, that would be aggravated manslaughter and
reckless manslaughter.
If, however, you find [defendant] not guilty in
acting as an accomplice of . . . Mumby on a specific
charge, first degree robbery, then you should consider
whether the defendant did act as an accomplice of . . .
Mumby but with a purpose of promoting or facilitating
the commission of second degree robbery.
Our law recognizes that two or more persons may
participate in the commission of an offense, but each
may participate therein with a different state of mind.
The liability or responsibility of each participant of any
ensuing offense is dependent on his own state of mind
and not on anyone else's. Guided by these legal
A-3051-24
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principles and if you have found [defendant] not guilty
of the specific crime charged, first degree robbery, you
should then consider whether [defendant] is guilty or
not guilty as an accomplice on the lesser charge of
second degree robbery.
[(Emphasis added).]
During the jury's deliberations, they asked several questions, including
seeking clarification regarding the "attachment to accomplice charge as it relates
to murder charge." The trial court asked the jury to clarify what they meant, and
the jury responded: "Does the (indiscernible) liability for another's conduct
accomplice, . . . apply to all charges and if not, which ones." Defense counsel
stated he was "afraid that . . . was going to happen."
The trial court advised it would tell the jury that accomplice liability only
applied to the charges of murder, robbery, and disturbing human remains.
Defense counsel did not object but asked what language the court would use to
answer the jury's question. The trial court stated: "I'm going to indicate you
should—you can consider the charge of accomplice liability as to murder, first
degree robbery, second degree robbery and disturbing human remains." Defense
counsel's only response was "[t]hank you." When the jury returned to the
courtroom, the court gave it the exact language discussed with counsel as to
which charges it should consider for accomplice liability.
A-3051-24
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During the sentencing hearing, defendant moved for judgment
notwithstanding the verdict and for a new trial. Defendant argued the court erred
in charging accomplice liability as to the murder and robbery offenses, which
required a new trial. The court denied the motions, finding "[t]he weight of the
evidence here clearly shows that an accomplice charge was appropriate and that
the defendant was not prejudiced by an error of its inclusion in regard to murder
and robbery."
Throughout the trial and extensively during the charge conference,
defendant urged the court not to charge the jury with any lesser-included
offenses. However, in considering the evidence, the court found there was "a
reckless component to [the murder]" which required it to charge aggravated
manslaughter and manslaughter as lesser-included offenses.
Defendant does not assert the court's determination to charge the lesser-
included charges was error. Indeed, in State v. Simms, 369 N.J. Super. 466, 471
(App. Div. 2004), we stated:
[t]he well-established rule is that if a charge on the
lesser[]included is requested, it must be given if
rationally based on the evidence, and if not requested,
must nevertheless be given if clearly indicated by the
evidence. Beyond that, the judge has an independent
obligation to instruct on clearly indicated lesser-
included offenses even if the defendant objects.
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[(Internal citations omitted).]
However, as seen in the colloquy quoted above, defense counsel remained
adamant that the court only charge the jury with accomplice liability regarding
the murder and robbery charges and not the lesser-included offenses. Now, on
appeal, defendant contends the court erred in complying with his request and
instead should have charged accomplice liability as to the lesser-included
offenses.
"Mistakes at trial are subject to the invited-error doctrine." State v. A.R.,
213 N.J. 542, 561 (2013). "Under that settled principle of law, trial errors that
'"were induced, encouraged or acquiesced in or consented to by defense counsel
ordinarily are not a basis for reversal on appeal . . . ."'" Ibid. (alteration in
original) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)). The doctrine of
invited error "is grounded in considerations of fairness[] and is meant to prevent
defendants from manipulating the system." Id. at 561-62 (internal citations
omitted) (citation modified).
The record supports the application of the invited error doctrine. Defense
counsel vigorously opposed the accomplice charge regarding the lesser-included
offenses, which resulted in the court and counsel spending a significant amount
of time painstakingly crafting a charge to defendant's liking. Defense counsel
A-3051-24
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agreed to the ultimate iteration of the charge and there was no objection during
the jury instructions. This acceptance of the charge was ratified by counsel's
agreement to the court's reiteration to the jury, in response to its question, that
accomplice liability only pertained to the murder and robbery charges.
We disagree with defendant's contention that Bielkiewicz requires a court
to always charge accomplice liability regarding lesser-included charges to
murder. 267 N.J. Super. at 527. We considered and rejected that argument in
State v. Rue, 296 N.J. Super. 108, 115 (App. Div. 1996), stating:
The difference between this case and Bielkiewicz is
that the evidence in that case could have supported a
finding that defendant Bielkiewicz did not share [co-
defendant] Pitts' homicidal state of mind. A jury could
reasonably have concluded from his actions that
Bielkiewicz was intent on inflicting bodily injury on the
victim to help Pitts win the fight, but that he did not
share Pitts' intent to cause death or serious bodily
injury. That is not the case here. The parties presented
the jury with two scenarios. The first was the state's
version that defendant himself participated in the
vicious beating of the victim which caused the death.
The second was that defendant remained in the car and
did not participate at all in the crime. Neither of those
versions warranted a Bielkiewicz charge, the former
because defendant's culpability was as a principal; the
latter because defendant was not guilty of a crime at all.
Here, as in Rue, defendant claimed he had nothing to do with the murder,
while the State's theory was that defendant was the principal and mastermind of
A-3051-24
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the events and strangled Young himself. In addition, the trial court was clear in
its instructions to the jury regarding accomplice liability for murder .
We acknowledge we may consider whether an induced or invited error on
appeal is reversible error if that error "cut mortally into the substantive rights of
the defendant." State v. Harper, 128 N.J. Super. 270, 277 (App. Div. 1974). In
such cases, the court may decline to apply the invited error doctrine if doing so
would "cause a fundamental miscarriage of justice." N.J. Div. v. M.C. III, 201
N.J. 328, 342 (2010) (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 508
(1996)).
However, there was no miscarriage of justice established here as there was
ample evidence for the jury to reach its guilty verdict. The bloody sweatshirt
found in defendant's garage had both his and Young's DNA on it as well as
Young's blood. Defendant was seen in video footage dancing next to Young's
car while Young was still in the trunk. Cell phone data tracked defendant and
Young leaving defendant's home together prior to the murder. In addition,
Mumby testified as to defendant's actions regarding the robbery and murder of
Young.
Even if we disregarded the invited error of counsel regarding the
accomplice liability charge, defendant has not demonstrated plain error under
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Rule 2:10-2 to overturn his conviction on these grounds. See State v. Wakefield,
190 N.J. 397, 473 (2007) (citing State v. Bunch, 180 N.J. 534, 541 (2004))
("[T]he failure to object to a jury instruction requires review under the plain
error standard.").
B.
We turn to defendant's second contention—that the court's use of "and/or"
during the accomplice liability charge failed to ensure the jury reached a
unanimous verdict on the separate counts of murder and robbery. Defendant
relies on State v. Gonzalez, 444 N.J. Super. 62 (App. Div. 2016), to support his
argument.
As there was no objection to the jury instruction, we review for plain error.
R. 2:10-2. In applying this standard to an alleged erroneous jury instruction, we
examine the record to determine whether "impropriety in the charge
prejudicially affect[ed] the [defendant’s] substantial rights . . . and . . . [had the]
clear capacity to bring about an unjust result." State v. Nero, 195 N.J. 397, 407
(2008) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).
In reviewing any claim of error relating to a jury charge, the "charge must
be read as a whole in determining whether there was any error," State v. Torres,
183 N.J. 554, 564 (2005), and the effect of any error must be considered "in light
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21
of the overall strength of the State's case." State v. Walker, 203 N.J. 73, 90
(2010) (internal quotation marks omitted) (quoting State v. Chapland, 187 N.J.
275, 289 (2006)).
Prior to the substantive jury charge, the trial court informed the jury:
Now, there are seven offenses charged in the
indictment. They are separate offenses by separate
counts in the indictment. In your determination of
whether the State has proven the defendant guilty of the
crimes charged in the indictment beyond a reasonable
doubt, . . . defendant is entitled to have each count
considered separately by the evidence which is relevant
and material to that particular charge based on the law
as I will give it to you.
Thereafter, the court charged the jury as to the elements of murder and robbery
in separate sections. The court did not use and/or in any part of those
instructions.
In charging the jury as to accomplice liability, the court followed the
model jury charge verbatim, Model Jury Charges (Criminal), "Liability for
Another's Conduct: Accomplice (N.J.S.A. 2C:2-6)" (rev. June 7, 2021), stating:
A person is an accomplice of another person in the
commission of an offense if with the purpose of
promoting or facilitating the commission of the offense,
he, [(a)], solicits such other person to commit it and/or
[(b)], aids or agrees or attempts to aid such other person
in planning or committing it. This provision of the law
means not only is the person who actually commits the
A-3051-24
22
criminal act responsible for it, but one who is legally
accountable as an accomplice is also responsible.
Now, this responsibility as an accomplice may be equal
and the same as . . . he who actually committed the
crimes or they may be responsible or there may be
responsibility in a different degree depending on the
circumstances as you may find them to be.
[(Emphasis added).]
In Mogull, 162 N.J. at 466, the Supreme Court noted "[i]t is difficult to find
that a charge that follows the Model Charge so closely constitutes plain error." We
have similarly stated that "a jury charge is presumed to be proper when it tracks
the model jury charge because the process to adopt model jury charges is
'comprehensive and thorough.'" State v. Cotto, 471 N.J. Super. 489, 543 (App.
Div. 2022) (quoting State v. R.B., 183 N.J. 308, 325 (2005)). See also State v.
Whitaker, 402 N.J. Super. 495, 513-14 (App. Div. 2008), aff'd, 200 N.J. 444 (2009)
("When a jury instruction follows the model jury charge, although not determinative,
'it is a persuasive argument in favor of the charge as delivered.'").
In Gonzalez, we reversed the defendants' convictions after concluding the
trial court's repeated use of "and/or" in the jury instructions created ambiguity
as to whether the jury was unanimous as to all elements of all offenses. 444 N.J.
Super. at 77. We also reversed the defendant's conviction in State v. Fair, 469
N.J. Super. 538, 558, 541 (App. Div. 2021), after determining the trial court
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failed to instruct the jury it needed to arrive at a unanimous decision on which
provision the defendant allegedly violated after he was "charged in a one-count
indictment of making terroristic threats within the meaning of 'N.J.S.A. 2C:12 -
3a and/or b.'"
After our careful review of the record, we are satisfied the jury
instructions at issue here do not present the same troubling ambiguities as those
in Gonzalez and Fair because the trial court followed the phrasing of the model
jury charges and clearly instructed the jury regarding its consideration of the
instructions.
The trial court instructed the jury with the model jury charge for the
murder and robbery charges. The court clearly expressed the jury must consider
each offense separately, assessing the elements that pertain to each crime.
Moreover, the court did not use "and/or" in explaining the elements of the
charges, instead articulating the elements of each offense separately. In
addition, the trial court stated it was using "and/or" in certain instances because
the elements applied to both murder and robbery, but the jury did not have to
find defendant guilty of both offenses. And, the instructions explicitly provided
that the jury's verdict must be unanimous.
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We are satisfied defendant has not demonstrated the trial court's jury
instructions were plain error "clearly capable of producing an unjust result."
Whitaker, 200 N.J. at 465; R. 2:10-2.
Affirmed.
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