STATE OF NEW JERSEY v. LAMONT McCONNELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6983-03T46983-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAMONT McCONNELL,

Defendant-Appellant.

_________________________________________________

 

Submitted December 7, 2005 - Decided March 21, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

03-02-0637.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael Confusione,

Designated Counsel and on the brief).

Vincent P. Sarubbi, Camden County

Prosecutor, attorney for respondent

(Laurie A. Corson, Assistant Prosecutor,

of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Lamont McConnell appeals from his conviction by a jury of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-1 and 2C:15-1 (count two); first-degree kidnapping of Priscilla Baker, N.J.S.A. 2C:13-1b(1) (count three); false imprisonment of Baker, N.J.S.A. 2C:13-3, a disorderly persons offense, as a lesser included offense within first-degree kidnapping (count four); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven); and fourth-degree assault by pointing a firearm at two victims, Priscilla Baker and Nam Sang Lau, N.J.S.A. 2C:12-1b(4) (counts nine and eleven). He also appeals from his sentence on count one (first-degree robbery) of fifteen years in custody subject to the eighty-five percent parole disqualifier mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a consecutively imposed sentence on count three (kidnapping) of fifteen years subject to NERA; a sentence on count nine (assault by pointing a firearm at Baker) of eighteen-months with an eighteen-month parole disqualifier imposed concurrently to count three but consecutively to counts one and eleven; and a sentence on count eleven (assault by pointing a firearm at Lau) of eighteen-months with an eighteen-month parole disqualifier imposed concurrently to count one, but consecutively to counts three and nine. Merger of count two (conspiracy to commit armed robbery) into count one (armed robbery), of count four (false imprisonment) into count three (kidnapping) and of count seven (possession of a firearm for an unlawful purpose) into counts one and two (armed robbery and conspiracy) occurred at sentencing.

The record discloses that shortly after midnight on October 11, 2002, defendant, along with two other unidentified men, invaded a Chinese restaurant at gunpoint while the restaurant was being closed for the night. One intruder bound the hands and mouths of employees Pricilla Baker and Ozzie Scranton with duct tape, ordered them to remain seated on the floor in the restaurant's vestibule, and eventually left the scene. Two proceeded toward the kitchen, where one pointed a gun at the head of the restaurant's owner, Nam Sang Lau, and the other (subsequently identified as defendant McConnell) hit Lau in the head and forced him to the ground. At the direction of Lau, one restaurant employee fled the scene, followed by the gun-toting intruder, and the employee called the police. Three other employees came down from the restaurant's upstairs residential quarters to aid Lau in subduing the remaining intruder, defendant McConnell, who by then was wielding a knife. The four men cornered defendant with a chair, poured hot wok oil on him, hit him repeatedly over the head with a meat cleaver, hit him in the knee with a sledge hammer, and hog tied him. When the police arrived, they observed one worker making dicing motions on what turned out to be defendant's scalp and another jerking on the rope that restrained defendant. Defendant was on his stomach, bound and bleeding, with a mask around his neck and an empty book bag over his shoulders. Defendant was given medical aid and was arrested. The remaining two perpetrators were not apprehended.

At trial, defendant, who was a regular restaurant patron, testified that he had eaten at the restaurant just before its closing, had gone outside, and had been approached by a Hispanic male selling VHS movies. Defendant, while willing to make a purchase, lacked change. Nonetheless, the seller grabbed a bill held in defendant's hand and ran into the restaurant. Defendant followed, but only to regain his money, and was confronted in the kitchen by non-English-speaking Asian men who did not understand his presence in the restaurant, and therefore attacked him with a knife, sledge hammer and hot oil, and they bound him, holding him captive until the police arrived. Defendant denied ever wearing a mask.

On appeal, defendant presents his arguments through assigned counsel and in a pro se brief. He offers the following arguments through counsel:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OF THE ROBBERY, CONSPIRACY TO COMMIT ROBBERY AND KIDNAPPING CHARGES.

POINT II

THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT.

POINT III

THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY (Partially Raised Below).

POINT IV

THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL

(Not Raised Below).

POINT V

THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE.

Defendant makes the following additional arguments pro se:

POINT I

DID THE STATE FAIL[] TO PROVE EVERY ELEMENT OF ACCOMPLICE LIABILITY BEYOND A REASONABLE DOUBT.

POINT II

DID TRIAL COURT COMMIT A PLAIN ERROR WHEN REFERRING TO UNNAMED PEOPLE AS ACCOMPLICE, DEFENDANT AND HIS ACCOMPLICES, ACCOMPLICES OF DEFENDANT, ETC., THEREBY CREATING PREJUDICE AND DENYING DEFENDANT A FAIR TRIAL IN EVALUATING THE ELEMENTS OF ACCOMPLICE LIABILITY.

POINT III

PROSECUTOR'S MISCONDUCT MUST BE SO EGREGIOUS THAT IT DEPRIVED DEFENDANT OF A FAIR TRIAL TO WARRANT REVERSAL OF CONVICTION.

We affirm in part, reverse in part, and remand portions of the case for a new trial.

I.

We reject defendant's argument that the trial court erred in denying defendant's motion pursuant to R. 3:18-1 for acquittal of the robbery and conspiracy to commit robbery charges. The robbery statute provides:

a. Robbery defined. 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.

[N.J.S.A. 2C:15-1.]

Defendant notes that the record contains no direct evidence either of theft or attempted theft, an element of robbery. However, we find that under the standards established by State v. Reyes, 50 N.J. 454, 459-59 (1967), evidence demonstrating the armed entry into a commercial establishment shortly after closing, when the perpetrators could have reasonably anticipated that the proceeds from that day's business would still be on the premises, and the possession by defendant of a backpack that could have been readily used to transport money and other valuables, provided sufficient circumstantial evidence that the intent of defendant and his confederates was to commit a robbery to sustain defendant's conviction of that crime. See State v. Taccetta, 301 N.J. Super. 227, 240-41 (App. Div.) ("Circumstantial evidence need not preclude every other hypothesis in order to establish guilt beyond a reasonable doubt), certif. denied, 152 N.J. 187-88 (1997); see also State v. Kittrell, 145 N.J. 112, 130-31 (1996). Certainly, it was the perception of Lau that a robbery was occurring, as well as that of Scranton, whose statements were reported by a police witness.

We also find sufficient circumstantial evidence to support a conviction for conspiracy between defendant and the other intruders to commit robbery, arising from the evidence we have just recounted, the fact that defendant entered the restaurant in the company of a perpetrator who was brandishing a gun as well as the third man, and that after Lau had been threatened with the gun defendant hit Lau in the head and forced him to the ground. N.J.S.A. 2C:5-2.

We also find no merit to defendant's argument that the court erred in failing to add defense counsel's proposed language to the jury instructions with respect to robbery. R. 2:11-3e(2).

However, we agree that the judge was mistaken in denying counsel's request that the jury be charged on the lesser-included offenses of aggravated and simple assault. Although we have found that circumstantial evidence of theft, when combined with direct evidence that the armed intruders used force upon the restaurant's employees or threatened such use, was sufficient to support defendant's conviction for armed robbery, the inference that a robbery was occurring was permissible, but not mandatory. The jury was free to reject it.

In declining to give the proposed charge, the trial judge appears to have determined that assault did not constitute a lesser included offense to robbery under N.J.S.A. 2C:1-8d. Precedent holds otherwise. See State v. Meekins, 180 N.J. 321, 323 (2004) (reciting that defendant was convicted of aggravated assault as a lesser-included offense within first-degree robbery); State v. Mirault, 92 N.J. 492, 501-06 (1983) (requiring merger of assault on a police officer into robbery conviction); State v. Harris, 357 N.J. Super. 532, 539-41 (App. Div. 2003) (requiring charge on assault as lesser-included offence to robbery); State ex rel. L.W., 333 N.J. Super. 492, 499 n.4 (App. Div. 2000) (suggesting consideration of aggravated and simple assault as potential lesser-included offenses to robbery on remand); State v. Carlos, 187 N.J. Super. 406, 417 (App. Div. 1982) (molding jury verdict on greater charge of armed robbery to reflect lesser charge of aggravated assault when the conviction for the greater offense was not justified). Moreover, in a case such as this in which a charge on lesser-included offenses was requested, a strict adherence to the definition of "included" under N.J.S.A. 2C:1-8d is less important than whether the evidence presents a rational basis for the charge. See State v. Savage, 172 N.J. 374, 397 (2002); State v. Brent, 137 N.J. 107, 117 (1994).

The issue thus is whether the proposed charge was appropriate in the circumstances. When, as here, defense counsel has requested the submission to the jury of lesser-included charges, "the court is obligated to examine the record and to determine whether a rational basis exists in the evidence for the jury to acquit the defendant of the charged offense and to convict defendant of the included offense." Savage, supra, 172 N.J. at 396-97; Brent, supra, 137 N.J. at 113-14; Harris, supra, 357 N.J. Super. at 539; N.J.S.A. 2C:1-8e.

In this case, there was sufficient evidence to meet both prongs of this test, since direct evidence of theft was not produced, whereas direct evidence of assault was presented. An evidential basis therefore existed for acquitting defendant of the charge of armed robbery and for convicting him of a lesser-included assault offense. In this circumstance, the court's all-or-nothing charge precluded the jury's consideration of the lesser crimes, and required it either to convict defendant of armed robbery or to acquit him altogether. It is just this draconian choice that the submission of lesser-included offenses to the jury is designed to avoid. Harris, supra, 357 N.J. Super. at 541. The failure of the court to give the requested charge requires reversal of defendant's armed robbery and conspiracy convictions and a new trial with respect to those charges. Ibid.; see also Savage, supra, 172 N.J. at 397-98; Brent, supra, 137 N.J. at 118.

II.

We further find that the trial court erred in denying defendant's motion for a directed verdict of acquittal on the charge of kidnapping. Evidence with respect to this charge was provided only by Baker, who testified that upon entry of the three men into the restaurant, the one carrying a gun told her to "shut up." One of the other intruders then placed duct tape over her mouth, bound her hands behind her back, and ordered her to sit on the floor in the restaurant's vestibule. Scranton was also bound. For a period of time thereafter, the intruder paced between the restaurant's counter and the vestibule, but he then left. After the intruder had gone, Baker freed herself, called the police, and was proceeding to free Scranton when he did so himself. Baker then sat in a booth in the restaurant's dining area while she waited for the police to arrive. She testified that during this time she was frightened and that her heart raced. However, she suffered no lasting injury. Baker was unable to estimate how long she was bound, but she stated that only fifteen or twenty minutes elapsed from the intruders' first entry into the restaurant to the police's arrival. She had obviously been free for some period of time before the police came.

Defendant was charged with violating N.J.S.A. 2C:13-1b(1), which provides:

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter; . . .

The State's theory in support of the charge of kidnapping in count three depended upon evidence that Baker was confined for a substantial period in order to facilitate the commission of a crime.

In discussing the asportation requirement contained within portions of the kidnapping statute in State v. Masino, 94 N.J. 436 (1983), the Court noted the potential for abusive prosecution in cases in which the "kidnapping" was "simply incidental to the underlying crime of rape or robbery[,]" id. at 441, and it recognized the principle that for a kidnapping conviction to be sustainable when rendered along with a conviction for a crime such as robbery, the kidnapping must be criminally significant in itself. Id. at 447. There must be an enhanced risk of harm arising from the asportation or confinement and isolation of the individual. Ibid.

The application of this principle in differing factual circumstances has been the subject of a number of decisions since Masino. In State v. La France, 117 N.J. 583 (1990), the Supreme Court found the binding and gagging of the husband victim by defendant, who then raped and robbed the pregnant wife, constituted kidnapping of the husband. In its opinion, the Court discussed the severity of the penalty for kidnapping and both the necessity and difficulty of delimiting the crime. Id. at 586-89. The Court recognized that there were two basic kidnapping patterns, one involving asportation and one involving confinement. However, it then observed:

[N]ot every movement or confinement of a victim is a kidnapping. The easiest illustrations are situations in which "the burglar puts the householder in the closet while he fills his sack with the silver," or in which the victim of a robbery is forced to open a safe in the home or go to the back of the store. Because courts sensed that these crimes should not be considered kidnapping, the problem became one of definition.

[Id. at 586-87 (citations omitted).]

The Court then commented favorably upon the federal court's decision in Virgin Islands v. Berry, 604 F.2d 221 (3d Cir. 1979) in which, after noting the modern approach of construing kidnapping statutes "to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal[,]" id. at 226-27, and after a survey of decisions, the court observed that "[w]hat each formulation seeks to guide is the qualitative judgment of juries on whether the asportation or detention that occurs during the course of the commission of another crime 'significantly increases the dangerousness or undesirability of the defendant's behavior.'" La France, supra, 117 N.J. at 587 (quoting Berry, supra, 604 F. 2d at 227). The Berry court found four factors to be significant in this regard:

(1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.

[La France, supra, 117 N.J. at 588 (quoting Berry, supra, 604 F. 2d at 227).]

Utilization of these factors in New Jersey criminal proceedings as an aid to a jury's deliberation was suggested by the La France Court. Id. at 594.

Our evaluation of the evidence in this matter in light of the factors suggested in Berry and the analysis of La France satisfies us that the confinement of Baker did not constitute a separate crime for which the substantial penalties applicable to kidnapping could be imposed. The evidence suggests that the intruder's only purposes in binding Baker's mouth and hands were to avoid detection and prevent interference with the projected robbery. The intruder made no effort to further terrorize or to injure Baker, and indeed he left the premises before the criminal attempt had fully unfolded and while at least defendant was still present in an adjoining room. The intruder's acts did not increase the danger to Baker beyond that otherwise posed by the three perpetrators. At all times, she remained in close proximity to Scranton, and within the same establishment as the Asian employees, any of whom could have come to her aid. Further, although the length of Baker's confinement is uncertain, it appears to have been of relatively short duration, after which Baker was able to free herself. At the time that the police arrived, Baker was still shaken by the events that had occurred, but she was seated at a table in an adjoining room. She sustained no physical injuries. In these circumstances, we do not find the evidence to have been sufficient to support the kidnapping charge. See State v. Bryant, 217 N.J. Super. 72, 81 (App. Div.) (finding that binding and gagging of elderly residents during the time that their house was ransacked did not make them more vulnerable to harm beyond that imposed by the robberies, and thus the conduct could not support a kidnapping charge, although continued confinement to facilitate flight could do so), certif. denied, 108 N.J. 202, 652, cert. denied, 484 U.S. 978, 108 S. Ct. 490, 98 L. Ed. 2d 488 (1987).

We do not regard the fact that the restaurant's cash, not Baker's possessions, was likely to have been the intruders' object as relevant to our conclusion that the confinement of Baker was merely incidental to the armed robbery. Baker was an employee of the restaurant who, like a homeowner present on the premises, constituted an impediment to the commission of the crime. Her confinement was simply a necessary step in the crime's accomplishment similar to the confinement of a resident in his closet to permit theft in the illustration utilized by the Court in La France. Defendant's conviction of the kidnapping charge is therefore reversed.

Similarly, we reverse defendant's conviction for false imprisonment pursuant to N.J.S.A. 2C:13-3, finding that the conduct providing its basis, like that underlying defendant's kidnapping conviction, was merely incidental to the underlying substantive offense of armed robbery. La France, supra, 117 N.J. at 591.

We find none of the other arguments raised by defendant or on his behalf that are addressed to his convictions to have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm his convictions for possession of a firearm for an unlawful purpose and for assault by pointing a firearm. Because the matter is being remanded for a new trial on the robbery charges, we find no need to discuss defendant's sentencing arguments.

Defendants' convictions for possession of a firearm for an unlawful purpose and assault by pointing a firearm are affirmed. Defendant's convictions for kidnapping and false imprisonment are reversed. Defendant's convictions for armed robbery and conspiracy to commit armed robbery are reversed, and the matter is remanded for a new trial on those charges.

 

This count charged defendant with unlawfully removing Baker a substantial distance and/or confining her for a substantial period, with the purpose to facilitate commission of any crime or flight thereafter.

This count initially charged defendant with unlawfully removing Baker a substantial distance and/or confining her for a substantial period, with the purpose to inflict bodily injury on or to terrorize her or another.

(continued)

(continued)

17

A-6983-03T4

March 21, 2006