of cases.” 520 U.S. at 468. Examples of such cases
include Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct.
2078, 24 L.Ed.2d 182 (1993) (finding erroneous
reasonable doubt instruction to jury); Vasquez v. Hillery,
474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)
(finding unlawful exclusion of grand jurors of defendant’s
race); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81
L.Ed.2d 31 (1984) (finding right to public trial);
McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79
L.Ed.2d 122 (1984) (finding right to self-representation
at trial); Gideon, supra; Tumey, supra. State cases applying
such harmless-error analysis include State v. Burton, 309
N.J. Super. 280 (App. Div.), certif. denied, 156 N.J. 407
(1998)(error in admitting photographic array of
defendant in prison garb harmless); State v. Bohuk, 269
N.J. Super. 581, 595 (App. Div.), certif. denied, 136 N.J.
29, cert. denied, 513 U.S. 865, 115 S.Ct. 183, 130
L.Ed.2d (1994); State v. Tucker, 265 N.J. Super. 296,
328 (App. Div. 1993), aff’d 137 N.J. 259 (1994), cert.
denied, 513 U.S. 1090, 115 S.Ct. 751, 130 L.Ed.2d 651
(1995); see also State v. Marshall, 123 N.J. 1, 121 (1991)
(applying harmless-error analysis to violations of
defendant’s privilege against self-incrimination).
Certain types of jury instructions are so crucial to the
jury’s deliberations that errors are presumed to be
reversible. Failure to charge the jury on an element of the
offense is presumed to be prejudicial, even in the absence
of a request by defense counsel. State v. G.V., 162 N.J.
252, 262 (2000); State v. Afanador, 151 N.J. 41, 56
(1997); State v. Jordan, 147 N.J. 409, 428-29 (1997);
State v. Martin, 119 N.J. 2, 15 (1990); State v. Vick, 117
N.J. 288, 291 (1989); State v. Federico, 103 N.J. 169,
176 (1986); State v. Grunow, 102 N.J. 133, 148 (1986);
State v. Simon, 79 N.J. 191, 206 (1979) (“Errors
impacting directly upon these sensitive areas of a criminal
trial are poor candidates for rehabilitation” under the
plain error rule); State v. Green, 86 N.J. 281 (1981); State
v. Speth, 323 N.J. Super. 67, 85 (App. Div. 1999); State
v. Blanks, 313 N.J. Super. 55 (App. Div. 1998) (if
evidence does not support charge, then any error in
charge is harmless); State v. Allen, 308 N.J. Super. 421,
431 (App. Div. 1998) (absence of credibility,
inconsistent statement and deliberation charges
warranted reversal).
Where the error has not been raised below, there may
be consequences on appeal other than governed by the
plain error rule. For example, the failure to raise an error
below may be interpreted to mean counsel did not
consider the error sufficiently prejudicial in the context of
the trial. State v. Wilson, 57 N.J. 39, 50-51 (1970); State
v. Macon, supra, at 321. Errors which counsel created or
acquiesced in will not ordinarily be grounds for reversal.
State v. Harvey, 151 N.J. 117, 219 (1997); State v.
Schneiderman, 20 N.J. 422 (1956); State v. Douglas, 204
N.J. Super. 265, 274 (App. Div. 1985); State v. Mack,
131 N.J. Super. 542 (App. Div. 1974); State v. Slocum,
130 N.J. Super. 358 (App. Div. 1974); State v. Harper,
128 N.J. Super. 270, 276-77 (App. Div.), certif. denied,
65 N.J. 574 (1974); State v. Byra, 128 N.J.L. 429 (Sup.
Ct. 1942), aff’d 129 N.J.L. 384 (E. & A. 1943), cert.
denied, 324 U.S. 884, 65 S.Ct. 1025, 89 L.Ed. 1434
(1944).Should the reviewing court apply a procedural bar, it
is prudent to ask that the court plainly state to that effect,
to preserve the procedural bar in the event of a habeas
petition. Harris v. Reed, 489 U.S. 255, 261-62, 109
S.Ct. 1038, 103 L.Ed.2d 308 (1989).D. Fact Findings By The Trial Court
When an error in a fact finding by a trial court sitting
without a jury, the scope of appellate review is extremely
narrow. The seminal case on this subject, State v. Johnson,
42 N.J. 146 (1964), held that the appellate tribunal
must review the record in light of the contention raised,
but not initially from the point of view of how it would
decide the matter if it were the court of first instance. It
should give deference to those findings of the trial judge
which are substantially influenced by his opportunity to
hear and see the witnesses and to have the “feel” of the
case, which a reviewing court cannot enjoy. The aim of
the review at the outset is rather to determine whether the
findings made could reasonably have been reached on
sufficient credible evidence present in the record. This
involves consideration of the proofs as a whole. When the
reviewing court is satisfied that the findings and result
meet this criterion, its task is complete. But if the
appellate tribunal is thoroughly satisfied that the finding
is clearly a mistaken one and so plainly unwarranted that
the interests of justice demand intervention and
correction, then, and only then, it should appraise the
record as if it were deciding the matter at inception and
make its own findings and conclusions. In short, the
reviewing court must have the conviction that the judge
went so wide of the mark, a mistake must have been made.
Accord, State v. Locurto, 157 N.J. 463, 470-71
(1999)(appellate court should not have engaged in
independent assessment of evidence as if it were court of
first instance); see State v. Simon, 161 N.J. 416, 445