This NJ Criminal appeal was recently won after the trial judge failed to explain to the jury the reasons for defendant’s absence during part of the trial.
State v. James Rippy, unpublished opinion, App. Div. Docket No. A-6069-07T4 (December 14, 2010) – Convictions reversed.
“[D]efendant contends that the trial judge committed plain error by failing to sua sponte instruct the jury on his absence from the trial and by giving an erroneous instruction on coconspirator liability for the robbery…. The trial judge gave the Election Not To Testify charge. This was insufficient; as the charge’s language does not address defendant’s absence, thus impermissibly leaving the jury free to speculate about why he was not present at trial, and to infer guilt from his absence. Because of the potential for prejudice due to defendant’s absence from trial, the failure to sua sponte give the ‘Absence From Trial’ charge was clearly capable of producing an unjust result warranting reversal of defendant’s conviction.
“As for the conspirator liability charge, …, to determine whether defendant was vicariously liable for the robbery that Rivera committed, the critical issue became whether defendant’s conscious object in conspiring with Rivera was to promote the crime of robbery or make it easier for Rivera to commit the robbery. The charge given was not limited to the State’s alternative theory of coconspirator liability for the robbery. Rather, it instructed the jury on coconspirator liability as an alternative theory of guilt as to all of the crimes with which defendant was charged. This error impermissibly left the jury free to find defendant liable for the robbery Rivera committed as long as it believed that defendant’s conscious object was to promote either burglary, assault or weapons possession. Thus, the instruction was clearly capable of producing an unjust result warranting reversal of defendant’s robbery conviction.”