STATE OF NEW JERSEY v. SHANE M. BURNS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4696-03T44696-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHANE M. BURNS,

Defendant-Appellant.

______________________________

 

Argued September 20, 2006 - Decided November 2, 2006

Before Judges Cuff, Winkelstein and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 02-05-0632-I.

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

Steven J. Kaflowitz, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Mr. Kaflowitz, of counsel; Amy F. Newcombe, on the brief).

PER CURIAM

A jury convicted defendant Shane Burns of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count one); second-degree robbery, N.J.S.A. 2C:15-1 (count two); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count three); second-degree possession of a weapon, a shotgun, for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, a shotgun, without a permit, N.J.S.A. 2C:58-3, N.J.S.A. 2C:39-5c(1) (count five); and third-degree unlawful possession of a weapon, a loaded shotgun, N.J.S.A. 2C:39-5c(2) (count 6). At sentencing, the court merged counts one, two, four, five, and six into count three, and imposed a sixty-year term of imprisonment with a fifty-one-year period of parole ineligibility.

After defendant filed his notice of appeal, we ordered a temporary remand to permit the Law Division to address defendant's motion for a new trial, which was based on defendant's allegation that his trial counsel had a conflict of interest. The Law Division denied defendant's motion.

In his initial appeal, defendant raises the following three legal arguments:

POINT I

THE ACCOMPLICE-LIABILITY JURY INSTRUCTION WAS NOT IN COMPLIANCE WITH STATE V. BIELKIEWICZ, AND, THUS, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED. (Not Raised Below).

POINT II

THE JUDGE'S DECISION TO ADMIT A NON-TESTIFYING COCONSPIRATOR'S STATEMENT INTO EVIDENCE AGAINST DEFENDANT VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT OF CONFRONTATION AND THE EVIDENCE RULES, ESPECIALLY WHEN THE STATE ONLY USED THE INADMISSIBLE PORTION OF THE STATEMENT AT TRIAL.

POINT III

A FAR GREATER JUSTIFICATION FOR A PARTICULAR MURDER SENTENCE, ESPECIALLY FOR FELONY MURDER, MUST BE GIVEN THAN WAS GIVEN HERE, WHEN THAT SENTENCE, UNDER THE NO EARLY RELEASE ACT (NERA), COULD POSSIBLY INVOLVE SUCH WIDELY VARYING AMOUNTS OF PAROLE INELIGIBILITY; TO REQUIRE LESS THWARTS THE GOALS OF THE CRIMINAL CODE WITH REGARD TO SENTENCING.

Following the trial judge's order denying the new trial motion, defendant raised the following additional point on appeal:

POINT I

THE MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE THE TRIAL ATTORNEY DID NOT PROPERLY DISCLOSE TO THE COURT AND TO THE DEFENDANT A FUNDAMENTAL CONFLICT OF INTEREST ARISING FROM HIS PREVIOUS REPRESENTATION OF THE VICTIM'S SON FOR WHICH THE VICTIM PAID.

We agree with defendant's argument that the accomplice liability charge violated State v. Bielkiewicz, 267 N.J. Super. 520, 528, 530-31 (App. Div. 1993). Consequently, we reverse his convictions for aggravated manslaughter, robbery, and felony murder and vacate his sentence. Nonetheless, we affirm his convictions for the weapons offenses.

Mary Lou Nolan died from a gunshot wound. The shooting led to the charges against defendant and his two codefendants, Shakore Collins, also known as Chubbs, and Turi Reddick.

The history of events leading to the shooting is as follows. Chelsea Favor, who began a relationship with defendant in December 2001, had purchased marijuana from Michael Dixon, Mary Lou Nolan's son, after being introduced to him by her friend, Kyron Holmes. Dixon had previously been convicted of selling marijuana. In January 2002, after Favor told defendant that she could obtain marijuana from Dixon, defendant asked her where Dixon lived, whether he sold "weight," meaning large amounts of marijuana, and whether he had "a lot of money." Favor indicated that she assumed Dixon had a lot of money because he had been selling marijuana "for awhile" and he had a big-screen television. Favor showed defendant where Dixon lived. Defendant told her he was trying to get Holmes to help him rob Dixon.

Defendant spoke with Holmes about Dixon on several occasions. He asked Holmes whether Dixon "sold weight" and whether he had money. During the phone calls, defendant tried to "set up a plan to go rob [Dixon]" and he asked Holmes to be a "look out."

About a month before Mary Lou Nolan was killed, defendant told his landlord, Paige Cook, that in terms of robbing drug dealers, "[y]ou get money" and the "[d]rug dealer's not going to report what's going on." Defendant said that "[y]ou get 1500 or 1600 [in] one night[, it is] better than robbing a bank."

The trial testimony shows that on the evening of February 9, 2002, Michael Nolan, Mary Lou Nolan's husband, was asleep upstairs in their home at 220 East Fifth Avenue in Roselle. His wife was downstairs on a couch watching television with the couple's two grandsons. Michael Dixon, who also lived in the house, was in Atlantic City. Michael Nolan awoke to the sound of breaking glass and his wife's cry that she had been shot. He found her collapsed and bleeding on the stairs. After he dialed 911, he placed his wife on the floor and began CPR. His grandchildren remained on the couch.

When members of the Roselle Police Department arrived minutes after Nolan placed the 911 call, they observed that the glass from the interior front door had been shattered. Mary Lou Nolan was bleeding profusely from a gunshot wound to her right shoulder. Burn marks and powder residue surrounded the wound. The police recovered shotgun projectiles from the home.

Mary Lou Nolan was transported to the hospital, where she died. The medical examiner testified that the cause of death was a shotgun wound to the right anterior chest; and that Nolan was shot at close range, from two feet away or less.

At approximately 11:30 p.m. on February 9, 2002, Tychic Phipps received two phone calls from defendant asking her to open the door to her home. After the second call, she opened the door and saw defendant and Turi Reddick, both dressed in black, running across the street toward her house. After they entered her house, defendant said "it wasn't supposed to go down like that." Reddick acted like he was holding a gun. He said, "you know I'm a little nigger, the gun was too big for me to hold" and "Chubbs froze up." Defendant removed his clothing and gloves and left them at Phipps's house. Reddick removed his sweatshirt and asked Phipps for something to wear that was not black. He wanted to return to the car he had used to get to the Nolan residence. When he and defendant abandoned it, the engine was still running. He was concerned that his license plate number would be recognized.

After defendant and Reddick left, Phipps wrapped the clothing and gloves that defendant had left at her house in a plastic bag, which she threw outside. At about 3:00 a.m., defendant returned to her house. He told her, "we killed somebody, somebody mother" because "Chubbs said that the people that they was going to rob had a lot of money."

Later that morning, after speaking with defendant on the phone, Reddick picked him up from Phipps's house. Prior to leaving, defendant asked Phipps for the clothing and gloves that he had left behind. She told him she had thrown the gloves and clothing outside.

Meanwhile, at approximately 11:40 p.m. on February 9, Collins arrived home. His girlfriend, Keisha Hay, testified he appeared to be "real panicky." He told her he had gone with Burns and Reddick "to a lady's house . . . . The lady tried to tussle with the gun and the gun went off." Defendant indicated that all three of the men were at the Nolans' door but Reddick was responsible for the shooting.

Two days later, Chelsea Favor saw defendant at her goddaughter's birthday party. He appeared to be "sad." He told her, "[w]e did it. We robbed him." He said, "[w]e fucked up and all I have to say is Fifth." He told Favor that Kyron Holmes "better keep his mouth shut" or he would be "knifed down." He also told her "[t]hat if the police were to question [her] not to say anything."

Defendant was subsequently arrested. He waived his Miranda rights and initially denied that he was involved in the shooting. After he was told that Collins had been arrested, "[h]e became very upset and worried and cried a little bit." He later agreed to give the police a formal statement.

At trial, Sergeant Carl Riley of the Union County Prosecutor's Office read the statement to the jury. According to defendant, Holmes invited him to rob Dixon. On the night of the shooting, Reddick, Collins and defendant went to Dixon's home to "get the money and the drugs." Prior to arriving at the Nolan residence, they stopped the car at a house on Bower Street where Reddick popped the trunk of the car, ran into the house, and returned to the car wearing all black. Reddick slammed the trunk and then drove to the Nolan house, where they parked in front of the house, got out of the car and walked to the corner of the street "just to see if anybody was around." Collins checked the front door, but it was locked. He then returned to the front door carrying a pizza box and soda. Defendant stood in the front yard and watched Collins go to the door. He then heard a bang, a gunshot, and saw Collins and Reddick heading back to the car. At the car, defendant saw Reddick with the shotgun.

After driving from the scene, the men stopped and got out on Spruce Street, near the intersection with Ninth Avenue. They left the engine running. Collins separated from defendant and Reddick, who ran across Spruce street and behind a bar. While defendant and Reddick were behind the bar, defendant heard a "clink" on the ground. Later, when defendant asked Reddick where the gun was, Reddick told him that he "threw" it, which is when defendant "knew . . . the clink [he] heard" behind the bar was the gun.

Without the gun, they ran to Phipps's house. There, Reddick said "Chubbs froze up" and that the "lady started struggling with [Reddick] and grabbed the gun." Defendant asked Reddick if he shot her; Reddick said he did not know, but "he didn't think so." In a discussion later that day, Reddick said he thought he shot her. The following day, Reddick again confirmed that he shot Nolan, telling defendant "she was hit . . . in the stomach." When defendant later returned to Phipps's house, he told Phipps that "that was fucked up" and he "felt bad."

Defendant's first point on appeal is that the accomplice liability jury instruction failed to comply with Bielkiewicz, supra, 267 N.J. Super. 520. While no objection was made to the charge at trial, we conclude that the charge as given constituted plain error and requires a reversal of defendant's convictions for aggravated manslaughter, robbery, and felony murder. See R. 2:10-2.

In reviewing allegations of error in a jury charge, we consider the challenged portion of the charge in light of the charge in its entirety. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Vasquez, 374 N.J. Super. 252, 263 (App. Div. 2005). "The charge must provide a 'comprehensible explanation of the questions that the jury must determine . . . .'" State v. Concepcion, 111 N.J. 373, 379 (1988) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). A reviewing court must determine whether the charge, as a whole, adequately "guided the jury in performing the critical task of determining defendant's guilt or innocence." Id. at 381. Incorrect jury instructions "are poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987).

Here, the State charged defendant as an accomplice to Reddick, who shot Mary Lou Nolan during an attempted robbery. When the State's case is based on a theory of accomplice liability, it is the court's obligation to provide the jury with accurate and understandable instructions on accomplice liability. State v. Savage, 172 N.J. 374, 388 (2002); Weeks, supra, 107 N.J. at 400. The court should tailor the accomplice liability charge to the facts of the particular case. See Savage, supra, 172 N.J. at 389; State v. Cook, 300 N.J. Super. 476, 487-88 (App. Div. 1996).

When lesser-included offenses are submitted to the jury in an accomplice liability case, the trial court is required to instruct the jury as to the differences in culpability required for the grades of crime; failure to do so is reversible error. Bielkiewicz, supra, 267 N.J. Super. at 528, 531-35. The jury must be told that "'[e]ach 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.'" Id. at 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)); see also Cook, supra, 300 N.J. Super. at 486-87. "If a trial court submits lesser included offenses to the jury but fails to give accurate and complete instructions regarding accomplice liability for these lesser offenses, there is a similar risk that the jury will compromise on a guilty verdict for the greater offense." Bielkiewicz, supra, 267 N.J. Super. at 534; see also Savage, 172 N.J. at 394-95 (reversing when jury's question could be interpreted to mean that the jury failed to comprehend that the defendant could be found guilty of a different offense than the principal); State v. Harrington, 310 N.J. Super. 272, 278-79 (App. Div.) (same), certif. denied, 156 N.J. 387 (1998); Cook, supra, 300 N.J. Super. at 488-89 (reversing murder conviction on grounds of plain error because trial judge did "not adequately explain to the jury how it might go about finding an accomplice guilty of a different offense or degree of offense than the principal").

In his charge to the jury in this case, the judge provided language that was clearly capable of producing an unjust result. While explaining to the jury that it could find defendant guilty of the lesser-included offenses of reckless manslaughter or attempted theft, the judge stated:

In order to find the defendant guilty of a lesser included offense of either reckless manslaughter or the attempted theft, the State has to prove beyond a reasonable doubt, number one, that Reddick, again, committed the lesser included offenses of reckless manslaughter or attempted theft . . . .

In other words, the judge told the jury that to find defendant guilty of reckless manslaughter or attempted theft, the lesser-included offenses of aggravated manslaughter and robbery, the State was also required to prove that Reddick committed the lesser-included offenses. The model jury charge, formulated following the Bielkiewicz decision, calls for the jury to be instructed that the State is required to prove that the principal, who in this case was Reddick, committed either the crimes as alleged in the indictment, or the lesser-included offenses. Model Jury Charges (Criminal), Liability for Another's Conduct (May 22, 1995) (N.J.S.A. 2C:2-6) Accomplice, Charge Two. Thus, the charge as given did not conform to the model charge or to the governing law. The way the judge phrased the instruction required the jury to find that Reddick was guilty of reckless manslaughter and/or attempted theft before it could find defendant guilty of those offenses. The instruction as given mistakenly requires congruity between the offenses committed by Reddick and defendant.

We are mindful that the jury was instructed not to reach the lesser-included offenses unless it found defendant not guilty of the charged offenses. Nevertheless, the absence of a proper charge created the "risk that the jury [would] compromise on a guilty verdict for the greater offense." See Bielkiewicz, supra, 267 N.J. Super. at 534; see also State v. Sloane, 111 N.J. 293, 299 (1988) (verdict of guilt on lesser offense may reflect compromise). The charge as given deprived the jury of an option to compromise on the lesser-included offense. Under these circumstances, the verdicts of aggravated manslaughter, count one, and robbery, count two, cannot stand.

Our determination that the accomplice liability charge was insufficient also dictates that defendant's felony murder conviction be reversed. Felony murder is defined in N.J.S.A. 2C:11-3a. The pertinent portion of that statute says:

Except as provided in N.J.S.2C:11-4, criminal homicide constitutes murder when:

. . . .

(3) It is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism pursuant to section 2 of P.L.2002,c.26 (C.2C:38-2), and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants. . . .

[N.J.S.A. 2C:11-3a(3).]

Here, the felony murder conviction was based on the crime of robbery. Attempted theft is not a predicate crime for felony murder. Consequently, had defendant been convicted of attempted theft, he could not have been convicted of felony murder. See State v. Gonzalez, 318 N.J. Super. 527, 536 (App. Div.), certif. denied, 161 N.J. 148 (1999).

The same conclusion is not warranted, however, with regard to defendant's convictions for the weapons offenses. Even if, as defendant argues, the jury had found him guilty of the lesser-included offenses reckless manslaughter and attempted theft the "requisite unlawful purpose" required for a conviction on possession of a weapon for an unlawful purpose, which was charged in count four, would nevertheless have been established. See Cook, supra, 300 N.J. Super. at 490 ("Bielkiewicz has no applicability to a charge of possession of a weapon for an unlawful purpose"). Similarly, the convictions on counts five and six, the unlawful possession offenses, are unaffected by the errors in the accomplice liability charge.

We next turn to the conflict of interest issue. Prior to defendant's trial in this case, his trial counsel had represented Mary Lou Nolan's son, Daniel Dixon, with regard to a murder charge. Dixon ultimately pleaded guilty and was imprisoned. During the course of that representation, Mary Lou Nolan paid counsel's legal fees. Counsel's representation of Dixon ended in 1999, well before he undertook his representation of defendant. Daniel Dixon's appeal was handled by another attorney. No connection has been shown between Daniel Dixon and defendant. On remand, counsel testified that he did disclose the potential conflict to defendant at some point, but he did not notify him in writing or alert the trial judge, though counsel believed the trial judge learned of the issue from the prosecutor. The trial judge found counsel credible.

The Rules of Professional Conduct (RPC) in effect at the time of the trial here prohibited the appearance of impropriety by a lawyer in his representation of his client. See RPC 1.7(c). An appearance of impropriety occurred where "an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients." RPC 1.7(c)(2). "When an appearance of impropriety is found in a criminal matter, disqualification of an attorney routinely is required." State v. Loyal, 164 N.J. 418, 430 (2000). It is "'only in extraordinary cases'" that this appearance of impropriety should be overlooked. Ibid. (quoting Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 220 (1988)).

Here, the potential conflict should have been brought to the court's attention prior to trial and resolved on the record. See State v. Sheika, 337 N.J. Super. 228, 248 (App. Div. 2001). Nevertheless, Dixon was not a current client of trial counsel and there was no connection between Daniel Dixon and defendant. Nor was there evidence of any communications between counsel and Mary Lou Nolan during counsel's representation of Daniel Dixon that would have had any impact on counsel's representation of defendant. While counsel should have done more to disclose, we are not convinced the potential conflict issue warrants a new trial.

The evidentiary issue and the issue of defendant's sentence raised in points two and three of his brief on appeal are moot. If the evidentiary issue arises during the new trial, it will be addressed by the trial judge under the facts as presented at that time.

We reverse the convictions on counts one, two and three. We affirm the convictions on counts four, five and six. We vacate defendant's sentence and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

 

Defendant and his codefendants were each tried and convicted in separate trials in 2003; Reddick in June, defendant in July, and Collins in September. The same judge presided at each trial. We affirmed Collins's and Reddick's convictions. See State v. Collins, No. A-4677-03 (App. Div. Nov. 2, 2006); State v. Reddick, No. A-4073-03 (App. Div. Nov. 2, 2006).

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Indeed, both Collins and Reddick (the shooter) were convicted of the lesser-included offense of reckless manslaughter. See State v. Collins, supra; State v. Reddick, supra.

The appearance of impropriety provision of RPC 1.7 was eliminated in the Rules of Professional Conduct revisions recommended by the Supreme Court Commission on the Rules of Professional Conduct that were adopted by the Supreme Court, effective January 1, 2004. See State v. Davis, 366 N.J. Super. 30, 43 (App. Div. 2004).

(continued)

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A-4696-03T4

November 2, 2006