STATE OF NEW JERSEY v. THOMAS JOSEPH BURKE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4577-04T44577-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS JOSEPH BURKE,

Defendant-Appellant.

____________________________________________________________

 

Submitted August 29, 2006 - Decided September 22, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 04-05-00466-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a one-day trial at which a single witness testified, the jury found defendant Thomas J. Burke guilty of second degree robbery, N.J.S.A. 2C:15-1. After the judge denied defendant's post-trial motion for a judgment of acquittal or for a new trial, he sentenced defendant to a six-year term of imprisonment, subject to an eighty-five percent period of parole ineligibility in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Requisite fines and penalties were also imposed.

The essential facts, derived from the testimony of the lone witness at trial, Elizabeth Police Officer Michael Kazanecki, are not in dispute. On October 27, 2003, Elizabeth Police Officers Michael Kazanecki and his partner, Michael Gonzalez, were on routine patrol in plainclothes and in an unmarked police car in the area of Elmora Avenue and West Grand Street around Pennington Street. At approximately 9:45 p.m., Kazanecki observed [defendant] Thomas Burke and Jamie Mayer, who was known to the police, walking together down Elmora Avenue towards Pennington Street. As defendant and Mayer turned the corner from Elmora onto Pennington Street, they came upon "a small Hispanic male," who was walking toward them on Pennington Street. According to Kazanecki, defendant and Mayer approached the small Hispanic male and defendant threw him against a wall and held him there while Mayer punched him and began rifling through his pockets. Specifically, Kazanecki said Mayer was "like ripping apart this guy's pockets, digging in his pocket, things were falling on the ground."

Having observed the incident from a distance of about seventy-five feet, Kazanecki and his partner got out of their unmarked car and ran to the fray. Kazanecki grabbed Mayer and pulled him off the victim while his partner "grabbed [defendant] and began tussling with him." As the officers struggled with defendant and Mayer, Mayer broke free and Kazanecki pursued him. Mayer was eventually captured by another officer and was brought back to the scene by that officer and Kazanecki. At that point, Kazanecki talked to the victim, who appeared "all disheveled, his clothing was torn, some scratches on his face." Kazanecki also recalled that the victim vomited, adding "I guess from being hit in the stomach."

As noted, the victim did not testify in this case. Instead, the judge read to the jury the following stipulation entered into by the State and the defendant:

There is a stipulation between the parties that the victim of the crime in question is unavailable to appear in court today. The stipulation is evidence. You can consider that . . . in the jury room.

On this appeal, defendant raises the following arguments for our consideration:

POINT I: THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY FAILING TO GIVE AN ADEQUATE INSTRUCTION ON ACCOMPLICE LIABILITY, FORECLOSING ANY POSSIBILITY THAT DEFENDANT COULD BE CONVICTED OF THE LESSER-INCLUDED OFFENSES OF SIMPLE ASSAULT OR THEFT. (PARTIALLY RAISED BELOW.)

POINT II: BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT A ROBBERY HAD BEEN COMMITTED, THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL; MOREOVER, BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

Considering defendant's arguments in light of the essentially undisputed facts and applicable principles of law, we agree that the charge on accomplice liability was inadequate and that the inadequacy had the capacity to bring about an unjust result. Accordingly we reverse and remand. We reject defendant's contention that a judgment of acquittal should have been entered.

During the charge conference, the court acceded to the State's request to charge theft as a lesser included offense of second degree robbery and, likewise, to defendant's request to charge accomplice liability and simple assault. In his brief on appeal, defendant acknowledges that the court's instructions on accomplice liability were "correct in that they note the requirement that a defendant charged as an accomplice must have the mental state requisite to commit the crime." The court's instruction properly charged that the actor and accomplice must have a unity of purpose, stating at one point that the accomplice "must have the same purpose as the other person committing the crime," and at another place, that "he must act with the same purpose of promoting or facilitating the commission of the same offense." In completing the accomplice portion of the charge, the court summarized:

[t]o constitute guilt there must exist a community of purpose [and] actual participation in the crime being committed. One cannot be held to be an accomplice unless you find as a fact he possessed the same criminal state of mind that is required to be proved against the person who actually committed the crime.

Neither the State nor the defense expressed any dissatisfaction with the charge when given the opportunity after the charge had been completed. Thus, defendant did not ask the court to instruct the jury that the two actors could have different intents or to remind the jury to consider the position expressed in defendant's opening statement and in the colloquy with the court during the charge conference -- whether, assuming Mr. Mayer intended to rob the victim, defendant shared that intent.

Relying on State v. Bielkewicz, 267 N.J. Super. 520 (App. Div. 1993), defendant now argues the instructions were deficient because they made no reference to the "concomitant rule that a defendant who is found to be an accomplice need not be convicted of the same offense as the principal." In Bielkewicz, we reversed the convictions of two defendants for murder where the State's basic theory, as articulated in the prosecutor's opening statement, was that one defendant, Pitts, fired the fatal shot and the other defendant, Bielkewicz, was guilty of murder as an accomplice. Id. at 535. The panel noted that "[t]he jury could have concluded, if adequately instructed, that Bielkewicz had the purpose to aid Pitts in assaulting [the victim] but not the purpose to cause death or serious bodily injury." Ibid. The panel further noted that "[t]he evidence indicate[d] that the assault was not planned in advance but occurred spontaneously after Pitts directed some form of verbal insult at [the victim]." Ibid. Under those circumstances, we concluded that the trial court conveyed to the jury the erroneous impression that the jury could not convict the principal of murder and the accomplice of a lesser included offense when it failed to tell the jury that it could find "the accomplice had the purpose to promote or facilitate an assault upon the victim, but did not share the principal's purpose to cause death or serious bodily injury. . . ." Id. at 534.

Thereafter, we have had occasions to discuss further the significance of Bielkewicz. For example, in State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996), we found plain error where the accomplice instruction given was inadequate to instruct the jury to consider whether Cook, an alleged accomplice, was holding the victim's legs to facilitate the attack by Vaughn [the alleged principal], but without an intent to cause serious injury or death. In State v. Jackmon, we clarified "the key holding of Bielkewicz [is] that not only is it defendant's state of mind that must be the focus of the jury's deliberations, but the jury must understand that defendant's culpable mental state can be lesser than that of the principal where it is accomplice liability that convicts the defendant." State v. Jackmon 305 N.J. Super. 274 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). In State v. Harrington, 310 N.J. Super. 272, 278 (App. Div.), certif. denied, 156 N.J. 387 (1998), we reiterated that "where multiple participants engage in a violent attack with the potential for differing states of mind," the jury must be reminded that the "parties who participate in a criminal act may be guilty of different degrees of offenses, depending on their own actions" and dependent on their own states of mind.

The Supreme Court has also emphasized the importance of a clear instruction when a prosecution is based on the theory that a defendant acted as an accomplice. Thus, the Court has explained:

a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he "shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act."

In addition, when lesser included offenses are submitted to the jury, the court has an obligation to "carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense." . . . .

If both parties enter into the commission of a crime with the same intent and purpose each is guilty to the same degree; but each may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind.

[State v. Savage, 172 N.J. 374, 388 (2002) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)) (internal citations omitted).

It does not matter that the defendant was tried alone. The Bielkewicz principles are applicable, nevertheless. State v. Jackmon, supra, 305 N.J. Super. at 289; State v. Harrington, supra, 310 N.J. Super. at 279. Moreover, although the trial court may give "thorough instructions on all lesser included offenses," it must also make "specific reference to those offenses in the context of its charge on accomplice liability." Id. at 278. That was not done in this case. Hence, the jury did not have the clear and correct instruction it needed to guide the course of its deliberations. State v. Cook, supra, 300 N.J. Super. at 489.

The State contends that here, unlike in Bielkewicz and that line of cases, its theory was that the two perpetrators were acting in unison, and that there was no rational basis in the evidence for the court to charge the jury that, as an accomplice, defendant could be guilty of a lower degree crime. State v. Franklin, 377 N.J. Super. 48, 56 (App. Div. 2005). Consequently, the argument continues, the failure of the court to give a Bielkewicz charge was not error, and certainly not plain error. Stated differently, the State contends the jury could not have reasonably concluded that defendant was an accomplice. See, e.g., State v. Oliver, 316 N.J. Super. 592, 597 (App. Div. 1998) (noting that "[e]ven if the judge should have instructed the jury that it could convict defendant of the lesser included offense of second degree robbery as [the perpetrator's] accomplice if it found that defendant's purpose was only to participate in the robbery, and not to commit armed robbery, the failure to give a Bielkowicz charge is not plain error where a jury could not reasonably conclude defendant was an accomplice").

We reject the State's suggestion that it did not contend that defendant was acting as an accomplice, but only that he was a principal actor in the robbery. That suggestion is belied by the summation, where the prosecutor said:

The State submits to you that what you are doing when you are ripping the pocket and going through the pocket is trying to commit a theft. . . . That is why you went there and that is what Jamie Mayer was doing. That is what Thomas Burke [defendant] was helping him do. He knew what was going on that day.

At another point, the prosecutor said:

The State offers to you . . . that on October 27, 2003, during the course of committing a theft, going through the pockets, ripping at the pockets of [the victim] by Jamie Mayer, the State submits to you that Thomas Burke helped, that he used force.

Yet a third time, the prosecutor stated:

The State submits that Thomas Burke, the defendant sitting right there, helped him do it.

In addition, the defense theory was that defendant was guilty, at most, of an assault upon the victim and that there is no evidence a theft occurred. Defense counsel pointed out there was no testimony that defendant, as opposed to Mayer, went through the victim's pockets and no testimony that anyone took anything that may have dropped on the ground. Defense counsel urged in his summation:

Now, remember what I said in my opening. I said that we deny that there was a theft here. Obviously, if there is no theft, we certainly deny there is a robbery and if there is no theft, we certainly deny there is a theft or theft from the person.

One of the things I didn't do in the opening and I am not going to do now is deny the simple assault. You heard the testimony. It is up to the State to prove it. I am not saying you should find him guilty of simple assault. I will leave it to your judgment. We absolutely deny robbery and theft and as to assault, simple assault, something you will have the chance to consider, we'll leave it up to you to make that determination.

In light of the positions taken by the parties, the dispute focused on whether the incident was a fight or an assault, on the one hand, or whether it was a theft by force during which bodily injury was knowingly inflicted. Even if Mayer committed or intended to commit a theft, we conclude it was plain error for the court not to have charged that the jury should consider whether the two actors may have proceeded with different intentions. R. 2:10-2; State v. Bielkewicz, supra, 267 N.J. Super. at 531-33; State v. Franklin, supra, 377 N.J. Super. at 55.

We obviously recognize that defendant may well have intended to commit a theft or to aid in the commission of a theft, and that the theft was interrupted when the police arrived, but "erroneous jury instructions are ordinarily 'presumed' to be reversible error." State v. Cook, supra, 300 N.J. Super. at 489. The test is whether the erroneous instruction had the capacity to produce an unjust result. Ibid. Since we believe that, if the jury had accepted the version of the event suggested by defense counsel, it could have concluded that theft was never defendant's intent, we are constrained to reverse and remand.

Apart from the inadequacy of the instruction, which warrants a new trial, defendant contends a judgment of acquittal should have been entered in his favor. We disagree. When the trial judge considered whether the State's proofs were so weak that a judgment of acquittal was warranted, he reasoned:

the broad test for determination of . . . a motion for judgment of acquittal "is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all favorable inferences which can reasonably be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt."

I am giving the State the benefit of all reasonable inferences that where you have two men walking in different directions coming upon the third person and the officers' testimony that [defendant] took him and slammed him against the wall while . . . the other guy, whatever his name is, went through his pockets is sufficient to allow a jury to consider whether they were in the course of committing a theft. We don't know a theft was committed because of the prior 104 ruling but clearly it is possible that . . . a reasonable inference is they were in the course of committing a theft.

I am going to deny basically the motion brought up by the court sua sponte.

The standard controlling defendant's challenge to the jury's verdict dictates that "[a] trial judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. We are restrained by that same standard.

We observe that the trial judge expressed his personal disagreement with the verdict, stating "I confess that if I were trying this case without a jury, I might not have voted the way the jury did." Nevertheless, he properly concluded "but I can't say that their verdict of this defendant was a manifest denial of justice under the law in light of the identification testimony of the police officer. So your motion is denied."

The central question presented to the jury was whether the attack upon the victim was or was not committed "during the commission of a theft." N.J.S.A. 2C:15-1 provides that "[a]n 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." The eyewitness testimony of the officer was that defendant was holding the victim while the other assailant was "like ripping apart this guy's pockets, digging in his pocket, things falling on the ground." The officer testified that he and his partner intervened and began tussling with the assailants. From that evidence, the jury could have believed that the assailants were in the course of committing a theft that was interrupted by the intervention of the police officers. Although defendant contends the jury was required to engage in speculation to reach that conclusion, we are satisfied that the jury could reasonably conclude from the evidence and the reasonable inferences to be drawn therefrom that defendant and his companion were, indeed, using force in the course of committing a theft upon the victim.

It is "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts." State v. Kittrell, 145 N.J. 112, 130 (1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)). In this case, our independent review of the undisputed testimony leads us to conclude that the evidence could rationally support either the conclusion that defendant and Mayer were attempting to rob the victim, or the conclusion advanced by defendant that the incident, at least as it relates to defendant, was no more than an assault. Under such circumstances, the issue should be resolved by a properly-instructed jury.

Reversed and remanded for further proceedings.

 

In defendant's statement of procedural history and in the State's counter-statement of procedural history, the parties state that defendant was charged in a single-count indictment with second degree robbery, contrary to N.J.S.A. 2C:18-2. That statute, which defines burglary, was indeed noted in the caption of the indictment; however, the narrative of the indictment cites N.J.S.A. 2C:15-1, the correct statutory reference for robbery. More specifically, the narrative charges "that Thomas Joseph Burke, on October 27, 2003, in the City of Elizabeth, in the County of Union, . . . in the course of committing a theft, knowingly did use force upon [the victim] and/or knowingly did inflict bodily injury upon [the victim]; contrary to the provisions of N.J.S.A. 2C:15-1, and against the peace of this State, the Government and dignity of the same."

Because the State has adopted defendant's Statement of Facts, we also accept and essentially reiterate defendant's recitation of the facts established at trial.

(continued)

(continued)

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A-4577-04T4

 

September 22, 2006