ELUDING AN OFFICER
The indictment charges the defendant with committing the crime of eluding an officer. The indictment reads as follows:
(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, 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 to a full stop commits a crime of the third degree.
[That person] is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.
[CHARGE FOLLOWING
SENTENCE IF SUBMITTING BOTH SECOND AND THIRD DEGREE]
[I will ask you to consider both third degree and second degree eluding, and will begin by defining third degree.]
In order to convict the defendant of third degree 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 this state.
2. That was a police or law enforcement officer.
3. That signaled to bring the vehicle to a full stop.
4. That knew that the officer had signaled (him/her) to bring the vehicle 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, you may infer that (he/she) was operating that vehicle 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. To find flight, you must find that the defendant's purpose in leaving was to avoid being stopped by the officer.
A person attempts to perform an act if (he/she) does or omits to do anything
with the purpose of performing that act without further conduct on (his/her)
part, or purposely does or omits to do anything which, under the circumstances
as a reasonable person would believe them to be, is an act or omission
constituting a substantial step planned to culminate in the performance of that
act.
A person acts purposely with respect to the nature of (his/her) conduct or a
result thereof if it is (his/her) conscious object to engage in conduct of that
nature or to cause such a result.
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.
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 THIRD DEGREE]
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 SECOND DEGREE]
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, which will distinguish third-degree eluding from the greater offense of
second-degree eluding. 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.1
In order to find this element, you must determine that there was at least one
person put at risk by the defendant's conduct, including persons along the
chase route, police officers in the chasing vehicle, or persons in the eluding
vehicle.2
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 law of this State [OR: the law regulating power vessels]. It is alleged that defendant's conduct involved [a] violation[s] of the motor vehicle law [OR: the law regulating power vessels]. Specifically, it is alleged that defendant [list motor vehicle violations or power 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.4In other words, it is not your job to decide whether (he/she) is guilty or not guilty of the motor vehicle [OR: power vessel] offense[s]. However, you may consider the evidence that (he/she) committed [a] motor vehicle offense[s] [OR: power 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 the second
degree crime of eluding an officer. 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 second degree eluding and guilty of third degree
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.
1 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 Only violations of Chapter 4 of Title 39 (motor vehicles) or Chapter 7 of Title 12 (power 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 power 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).
4 Because it is inappropriate to
submit to a jury a lesser motor-vehicle offense related to an indictable
prosecution properly before them, State v. Muniz, 118 N.J. 319,
331-32 (1990), the jury should be instructed, if appropriate, that any
outstanding motor vehicle charge will be determined by an appropriate court.
At the same time, 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. The jury should be instructed not to
speculate as to whether any such charges have been filed or disposed of.
The same principles would appear to apply if a power vessel offense, rather
than a motor vehicle offense, is alleged as the basis for the statutory
inference.