ELUDING AN
OFFICER[Second and Third
Degree]
(N.J.S.A.
2C:29-2b) model jury charge
(Read Indictment)
The
statute on which this charge is based reads as follows:
Any person,
while operating a motor vehicle on any street or highway in this State, [or any
vessel, as defined pursuant to section 2 of P.L. 1995, c.401 (C.12:7-71), on
the waters of this State], who knowingly flees or attempts to elude any police
or law enforcement officer after having received any signal from such officer
to bring the vehicle or vessel to a full stop commits [the] crime of [eluding].
In order to convict the defendant of eluding, the State
must prove beyond a reasonable doubt each of the following six (6) elements:
1. That was operating a motor vehicle on a street or
highway in [or a vessel on the waters of this of] this state.
2. That was a police or law enforcement officer.
3. That signaled to bring the vehicle [OR: vessel] to a
full stop.
4. That knew that the officer had signaled him/her to bring the vehicle [OR:
vessel] to a full stop.
5. That knew that was a police or law enforcement officer.
6. That defendant knowingly fled or attempted
to elude the officer.
If you find that was the owner of the vehicle [OR: vessel],
you may infer that he/she was operating that
vehicle [OR: vessel] at the time of the offense. However, you are never required or compelled
to draw this inference. It is your
exclusive province to determine whether the facts and circumstances shown by
the evidence support any inference and you are always free to accept them or
reject them if you wish.
Mere failure to stop does not constitute flight. In order
for you to find that the defendant fled or attempted to elude the police, the
State must prove beyond a reasonable doubt that he/she knew that he/she was being pursued by
police officers, but still did not stop.[1]
A person acts knowingly with respect to the
attendant circumstances of his/her conduct if he/she is aware that such circumstances
exist, or is aware of a high probability of their existence. "Knowing" or "with
knowledge" or equivalent terms have the same meaning.
Knowledge is a condition of the mind which cannot be seen
and can only be determined by inferences from conduct, words or acts. A state of mind is rarely susceptible of
direct proof, but must ordinarily be inferred from the facts. Therefore, it is
not necessary, members of the jury, that the State produce witnesses to testify
that an accused said that he/she had a certain state of
mind when he/she engaged in a particular
act. It is within your power to find that such proof has been furnished beyond
a reasonable doubt by inference which may arise from the nature
of his/her acts and his/her conduct, and from all that he/she said and did at the
particular time and place, and from all of the surrounding circumstances.
If you find that the State has failed to prove any one of
these elements beyond a reasonable doubt you must find the defendant not
guilty.
[CHARGE FOLLOWING
SENTENCE IF SUBMITTING
ONLY 3RD
DEGREE ELUDING]
On the other hand, if you find that the State has proven
all of these elements beyond a reasonable doubt, you must find the defendant
guilty.
[CHARGE REMAINING
PARAGRAPHS IF SUBMITTING
BOTH KINDS OF ELUDING]
If you find that the State has proven all six of the
above elements beyond a reasonable doubt, you must go on in your deliberations
to consider a seventh element. The State must prove beyond a reasonable doubt:
7. That the flight or attempt to elude created a
risk of death or injury to any person. “Injury” means physical pain, illness,
or any impairment of physical condition.[2] In order to find this
element, you must determine that there was at least one person put at risk by
the defendant’s conduct, which could include defendant himself/herself any person along the
chase route, any police officer in a chasing vehicle [OR: vessel], or
anyone in the eluding vehicle [OR: vessel].[3]
You
may infer risk of death or injury to any person if the defendant's conduct in
fleeing or in attempting to elude the officer involved a violation of the motor
vehicle laws of this State [OR: the laws regulating vessels]. It is
alleged that the defendant's conduct involved [a] violation[s] of the motor
vehicle laws [OR: the laws regulating vessels]. Specifically, it is
alleged that the defendant [list motor vehicle violations or vessel violations
alleged, and list their elements, taking care to list only those violations
that allegedly occurred after the signal to stop]. Whether he/she is guilty or not guilty of that [those] offense[s] will be
determined by an appropriate court.[5] In other
words, it is not your job to decide whether he/she is guilty or not guilty of the motor vehicle [OR: vessel] offense[s]. However, you may consider
the evidence that he/she committed [a] motor vehicle offense[s] [OR: vessel
offense[s]] in deciding whether he/she created a risk of death or injury.
At
the same time, remember that you are never required or compelled to draw this
inference. As I have already explained,
it is your exclusive province to determine whether the facts and circumstances
shown by the evidence support any inference and you are always free to accept
or reject any inference if you wish.
If you find that the State has proven beyond a reasonable
doubt all seven elements of the offense, then you must find the defendant
guilty of eluding while creating a risk of death or injury to any person. On
the other hand, if you find that the State has failed to prove the seventh
element beyond a reasonable doubt, but has proven the first six elements beyond
a reasonable doubt, then you must find the defendant not guilty of eluding
while creating a risk of death or injury to any person, but guilty of eluding.
Finally, if you find that the State has failed to prove any of the first six
elements beyond a reasonable doubt, then you must find the defendant not guilty
of either crime.
[2]
State v. Wallace, 158 N.J.
552, 558 (1999), holds that the term “injury” should be defined for the jury,
using the Code definition of “bodily injury,” N.J.S.A. 2C:11-1a.
Property damage, psychological injury, or other nonphysical injury do not
satisfy the statutory requirement. Id.
[3]
Wallace, 158 N.J.
at 560. See also State
v. Bunch, 180 N.J. 534 (2004)
(a defendant who uses a motor vehicle to elude and in doing so creates a risk
of death or injury only to himself or herself is guilty of second degree
eluding; statute does not require showing of injury to one other than the
defendant).
[4]
Only violations of Chapter 4 of Title 39
(motor vehicles) or Chapter 7 of Title 12 (vessels) will support this statutory
inference. However, not all such violations will support the inference, and it
should not be submitted where no reasonable juror on the evidence as a whole,
including the evidence of the motor vehicle or vessel violation, could find a
risk of death or injury to any person beyond a reasonable doubt. N.J.R.E.
303b; State v. DiRienzo, 53 N.J. 360, 378 (1969).
[5]
State v. Muniz, 118 N.J.
319, 331-32 (1990). However, the failure to explain, in appropriate
circumstances, the elements of the motor vehicle offenses that form the basis
for the statutory inference of recklessness, so that the jury can make an
accurate determination whether the defendant’s conduct “created the danger of
death or injury,” is reversible error. State v. Dorko, 298 N.J. Super.
at 59-60. Accordingly, the court should explain the elements of the applicable
motor vehicle offenses to the jury, but inform them that the defendant’s guilt
or innocence of those offenses will be determined by an appropriate court. See State
v. Dixon, 346 N.J. Super. 126, 138 (App. Div. 2001). The same
principles would appear to apply if a vessel offense, rather than a motor
vehicle offense, is alleged as the basis for the statutory inference.