STATE OF NEW JERSEY v. CHARLES E. MACON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1886-04T41886-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES E. MACON,

Defendant-Appellant.

___________________________________

 

Argued May 2, 2006 - Decided June 16, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-03-0376.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

Jason D. Saunders argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Louis F. D'Onofrio, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was indicted for first-degree carjacking, in violation of N.J.S.A. 2C:15-2a(1); second-degree robbery, in violation of N.J.S.A. 2C:15-1a(1); third-degree burglary, in violation of N.J.S.A. 2C:18-2a(1); third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(7); and fourth-degree contempt, in violation of N.J.S.A. 2C:29-9a. The trial court severed and dismissed the contempt charge. The remaining charges were tried before a jury, which acquitted defendant of burglary, but found him guilty of the other charges. The court sentenced defendant to a thirty-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, for carjacking, and a concurrent four-year term for aggravated assault. The court merged defendant's conviction for robbery into his conviction for carjacking.

The State's primary witness at trial was the victim of the offenses, Laura Jafolla. Around 1 a.m. on November 27, 2001, as she was trying to go to sleep, Jafolla thought she heard someone start the car that she shared with her oldest son in the driveway next to her house. She got out of bed and went outside in her nightgown. She walked up to the passenger side of her car and, looking through the side window, saw a person she later identified as defendant seated behind the wheel. The man got out of the car and started to walk towards Jafolla in a threatening manner. He said to her, "you got a problem[,]" to which she responded, "I thought you were my son." The man then said, "no I ain't your son." At this point, Jafolla tried to run back into her house. However, the man assaulted her, first punching her in the face and giving her a bloody nose, and then knocking her down. After Jafolla was on the ground, the assailant started to twist her head and choke her. He also started to fondle her. A neighbor who heard Jafolla screaming came out of his house, and the assailant then ran away.

Defendant was apprehended a short time later in possession of a yellow flashlight that Jafolla testified had been stolen from her house on the night of the crime. The State also presented evidence that the DNA on two cigarette butts found at the scene of the crime, one of which was inside Jafolla's car, matched defendant's DNA and that a bloodstain on defendant's jeans matched Jafolla's DNA.

On appeal, defendant presents the following arguments:

I. A LESSER-INCLUDED-OFFENSE INSTRUCTION ON ATTEMPTED THEFT SHOULD HAVE BEEN GIVEN BECAUSE A REASONABLE JUROR COULD HAVE FOUND THIS INCIDENT TO HAVE BEEN AN ATTEMPTED THEFT OF A CAR FOLLOWED BY AN ASSAULT. (Not Raised Below).

II. THE TRIAL JUDGE IMPROPERLY BARRED DEFENSE COUNSEL FROM RAISING BEFORE THE JURY -- THROUGH CROSS-EXAMINATION AND ARGUMENT -- THE NOTION THAT ON THE NIGHT OF THE CRIME POLICE WERE SO FOCUSED ON DEFENDANT AS A SUSPECT THAT THEY FAILED TO PROPERLY INVESTIGATE THE CASE, INCLUDING INVESTIGATING ANOTHER MAN WHO WAS FOUND CLOSER TO THE CRIME SCENE THAN DEFENDANT.

III. THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

We conclude that the trial court committed plain error in failing to instruct the jury regarding attempted theft, as a lesser included offense of carjacking and robbery. Therefore, we are constrained to reverse defendant's convictions for those offenses and to remand for a new trial. The argument presented under Point II of defendant's brief is without merit and does not warrant discussion. R. 2:11-3(e)(2). Consequently, we affirm defendant's conviction and sentence for aggravated assault.

"[A] defendant is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993). "No defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). When reviewing a trial court's failure to submit a lesser-included offense to the jury, the standard applied is dependent on whether the defendant requested an instruction on that offense. State v. Savage, 172 N.J. 374, 396-97 (2002). If defendant requests a lesser-included offense instruction, it must be submitted to the jury if "the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Id. at 397 (quoting State v. Brent, 137 N.J. 107, 117 (1994)). If defendant does not request the instruction, it must be given only if it is "clearly indicate[d]" by the evidence. Ibid.

Defendant was charged with first-degree carjacking, in violation of N.J.S.A. 2C:15-2a(1). N.J.S.A. 2C:15-2 proscribes the offense of carjacking:

A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle, as defined in [N.J.S.A.] 39:1-1, or in an attempt to commit an unlawful taking of a motor vehicle he:

(1) inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle;

(2) threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury;

(3) commits or threatens immediately to commit any crime of the first or second degree; or

(4) operates or causes said vehicle to be operated with the person who was in possession or control or was an occupant of the motor vehicle at the time of the taking remaining in the vehicle.

An act shall be deemed to be "in the course of committing an unlawful taking of a motor vehicle" if it occurs during an attempt to commit the unlawful taking of a motor vehicle or during an immediate flight after the attempt or commission.

[N.J.S.A. 2C:15-2a (emphasis added).]

The statute does not define "during," and there is no case law interpreting this term as used in N.J.S.A. 2C:15-2.

However, the section of the Code proscribing robbery, with which defendant was also charged, contains an almost identical definition of "in the course of committing a theft," which differs only in its use of the term "in" instead of "during." N.J.S.A. 2C:15-1 provides in pertinent part:

A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.

[N.J.S.A. 2C:15-1 (emphasis added).]

This court has recognized that "[w]hen the carjacking statute is read in conjunction with the robbery statute, it is clear that N.J.S.A. 2C:15-2a(1) mirrors N.J.S.A. 2C:15-1a(1); N.J.S.A. 2C:15-2a(2) mirrors 2C:15-1a(2) and N.J.S.A. 2C:15-2a(3) mirrors 2C:15-1a(3)." State v. Garretson, 313 N.J. Super. 348, 356 (App. Div.), certif. denied, 156 N.J. 428 (1998); see also State v. Drury, 382 N.J. Super. 469, 481 (App. Div. 2006)("When we compare the robbery and carjacking statutes, it is apparent that the required elements mirror each other, except that carjacking includes the more specific element that the property taken unlawfully is a motor vehicle"), certif. granted, ___ N.J. ___ (2006).

The robbery statute was enacted in 1979, see L. 1979, c. 178, 28, whereas the carjacking statute was enacted in 1993, see L. 1993, c. 221, 1. As a result, the robbery statute has significantly more case law on the factual predicates for a charge on the lesser-included offenses of theft or attempted theft.

We perceive nothing in the legislative history, policy or language of the carjacking statute that could support a conclusion that the Legislature intended it to be applied more expansively than the robbery statute. Therefore, despite the carjacking statute's use of the term "during" rather than "in," we conclude that the case law interpreting the phrase "in the course of committing a theft" under the robbery statute also governs the interpretation of the phrase "in the course of committing an unlawful taking of a motor vehicle" under the carjacking statute.

When determining whether an assault takes place "in the course of committing a theft," our courts consider whether a robbery and an assault "were clearly part of a continuous transaction." State v. Mirault, 92 N.J. 492, 501 (1983). In Mirault, the defendant was unlawfully inside a woman's home when a patrolman with his revolver drawn discovered defendant and shouted "freeze," after which "the defendant leaped at him and grabbed his revolver as the two fell to the ground," causing the patrolman to suffer minor injuries. Id. at 494. The Court considered the circumstances that "the continuous and violent struggle took but a few minutes, never moved beyond the scene of the crime, and never found the defendant in complete custody until the backup police arrived[,]" and held on the basis of these facts that the assault on the police officer was part of a "continuous transaction" that took place "in the course of committing a theft." Id. at 501.

When there is a factual issue as to whether a theft or attempted theft and the use of force, infliction of bodily injury or threat of bodily injury were part of a "continuous transaction," the issue must be submitted to the jury in the form of instructions on the lesser-included theft offense. Thus, in State v. Jordon, 240 N.J. Super. 115 (App. Div.), certif. denied, 122 N.J. 328 (1990), a shoplifter was confronted by a store detective shortly after he left the store. The shoplifter allegedly punched the store detective, but was eventually subdued and brought back to the store, where he proceeded to assault two other store detectives in an effort to escape. Id. at 117-118. The court held that the jury could have found that the defendant did not use any force against the detective who initially detained him after he left the store and that the bodily injury to the two store detectives who detained him after he was brought back into the store "was not inflicted in the course of committing a theft," id. at 121, because defendant's attack on those detectives occurred after his attempted flight from the store had concluded and he was in custody. Id. at 120-21.

In State v. Grissom, 347 N.J. Super. 469, 479 (App. Div. 2002), this court also reversed a robbery conviction because the trial court did not charge the jury regarding the lesser-included theft offense. The defendant in Grissom was a passenger in a taxicab who got out of the taxicab and walked away without paying the fare. The driver followed the defendant in his cab and, upon reaching him, demanded the fare. In response, the defendant pulled out a handgun and asked "[A]re you looking for money." The taxi driver then drove away. Id. at 472-473. We found "sufficient evidence in the record from which the jury could have concluded that defendant reached a point of at least temporary safety . . . when he exited the cab and that his pointing of the gun was a separate offense." Id. at 479.

In State v. Villanueva, 373 N.J. Super. 588, 595 (App. Div. 2004), a case that is similar factually to this case, the defendant had broken into a car and was removing the radio when he was confronted by the owner. Id. at 592. Defendant exited the passenger window of the vehicle feet-first and subsequently had a physical confrontation with the owner, the specific circumstances of which were contested. Ibid. We concluded that even though defendant had not requested the jury to be instructed regarding attempted theft as a lesser-included offense of robbery, the failure to submit this offense to the jury constituted plain error because "the court [had] in essence coerced the jury into finding defendant guilty of robbery as the only means for holding him legally accountable for attempting to steal [the victim's] car radio." Id. at 595. In reaching this conclusion, we stated that "the jury could have viewed defendant's conduct after he was discovered in [the] car as causally unrelated to the theft[.]" Ibid.; see also State v. Lopez, ___ N.J. ___, ___ (2006) (slip op. at 10) ("[I]ntimidating or assaultive conduct that is unrelated to a theft cannot elevate the theft to robbery").

It is even clearer in this case than in Villanueva that the jury could have viewed defendant's violent assault upon Jafolla as causally unrelated to his attempt to steal her car. Jafolla approached the car on the passenger side, where she observed defendant seated behind the wheel on the opposite side of the car. Based on this evidence, the jury could have found that defendant had an ample opportunity to flee the scene without any physical confrontation with Jafolla. However, rather than doing this, defendant assaulted Jafolla. If the jury found that this assault was committed in furtherance of defendant's attempt to steal Jafolla's car or to immobilize her so that she could not quickly report the crime to the police, the evidence would support a conviction for carjacking on the basis that defendant had "inflict[ed] bodily injury" upon Jafolla "during an attempt to commit the unlawful taking of a motor vehicle or during an immediate flight after the attempt." N.J.S.A. 2C:15-2a. The evidence also could support a conviction for robbery on the same basis. However, if the jury found that the attempted theft of the car had concluded when defendant got out of the car and that his purpose in attacking Jafolla was not to facilitate the theft or to flee the scene but rather to sexually assault her or to cause her bodily injury, it could have concluded that the attempted theft and assault were not part of a "continuous transaction" but rather separate and discrete criminal acts. Under this view of the evidence, the jury could have acquitted defendant of carjacking and robbery and found him guilty of only the lesser-included offenses of attempted theft and aggravated assault. Therefore, we conclude that the trial court's failure to submit attempted theft to the jury as a lesser-included offense of carjacking and robbery constituted plain error.

Accordingly, we reverse defendant's convictions for carjacking and robbery and remand the case for a retrial of those charges in conformity with this opinion. We affirm defendant's conviction and sentence for aggravated assault.

 

Although defendant's conviction for robbery was merged into his conviction for carjacking, the reversal of his carjacking conviction results in reinstatement of the robbery conviction. See State v. Pennington, 273 N.J. Super. 289, 295 (App. Div.), certif. denied, 137 N.J. 313 (1994). Thus, we must also address the validity of that conviction.

We express no opinion as to whether the court at the retrial should submit to the jury other lesser-included offenses in addition to attempted theft.

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A-1886-04T4

June 16, 2006