STATE OF NEW JERSEY v. TIMOTHY GLENN WATTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4331-06T44331-06T4

A-0552-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY GLENN WATTS a/k/a HAROLD

PERDON,

Defendant-Appellant.

________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE CALDWELL a/k/a BARI OLIVER,

GEORGE JERMAINE CALDWELL,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 2, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-03-00224-I (A-4331-06T4 and A-0552-07T4) and 06-03-00225-I (A-0552-07T4).

Yvonne Smith Segars, Public Defender, attorney for appellant in A-4331-06T4 (Michael Confusione, Designated Counsel, of counsel and on the briefs).

Anne Milgram, Attorney General, attorney for respondent in A-4331-06T4 (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant in A-0552-07T4 (Richard Sparaco, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent in A-0552-07T4 (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendants, George Caldwell and Timothy Glenn Watts, appeal from their convictions arising out of an armed robbery on November 3, 2005 in Linden. Their appeals were calendared back-to-back, and we now consolidate them for disposition in a single opinion.

Union County Indictment No. 06-03-00224 charged both defendants with six counts as follows: (1) first-degree armed robbery, N.J.S.A. 2C:15-1; (2) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; (3) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; (4) fourth-degree possession of hollow-nosed bullets, N.J.S.A. 2C:39-3f; (5) third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); and (6) third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3). Caldwell was further charged in the single count of Union County Indictment No. 06-03-00225 with an additional offense arising out of the same incident, second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7.

Both defendants moved to suppress physical evidence. After that motion was denied, Watts went to trial. The jury convicted him of the armed robbery count, but acquitted him on all other counts. The judge sentenced Watts to eleven years imprisonment, subject to an 85% parole disqualifier and five years parole supervision, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Caldwell then went to trial, but the trial ended with a deadlocked jury. Rather than retrying the case, the prosecutor entered into a plea agreement with Caldwell, by which he would plead guilty to the armed robbery and certain persons charges, and receive concurrent sentences not to exceed a total of ten years. The judge further entered into a non-negotiated plea, see R. 3:9-3(c), agreeing to sentence Caldwell for the first-degree robbery in the second-degree sentencing range, see N.J.S.A. 2C:44-1f(2), to five years imprisonment subject to an 85% parole disqualifier and three years parole supervision pursuant to NERA, and a concurrent five years imprisonment with a five-year parole disqualifier for the certain persons offense. Caldwell pled guilty to those two counts, and was sentenced in the manner previously indicated by the court.

Caldwell appeals only the denial of his suppression motion. See R. 3:5-7(d). In particular, he argues:

POINT I

DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SHOULD HAVE BEEN GRANTED WHERE THE SEARCH WAS CONDUCTED WITHOUT A WARRANT AND NO EXCEPTION TO THE WARRANT REQUIREMENT EXISTED.

POINT 1(A)

THE POLICE LACKED A REASONABLE SUSPICION TO PULL BEHIND THE VEHICLE OCCUPIED BY THE DEFENDANT AND THEREBY CONDUCT A TERRY STOP AND ORDER THE DEFENDANT TO LAY ON THE GROUND.

POINT 1(B)

NO EXIGENT CIRCUMSTANCES EXISTED TO JUSTIFY THE WARRANTLESS ENTRY INTO, AND SUBSEQUENT SEARCH OF THE CAR.

POINT I(C)

NO COMMUNITY CARETAKING EXCEPTION TO THE WARRANT REQUIREMENT EXISTED UNDER THE FACTS OF THIS CASE.

Watts raises the following arguments on appeal:

POINT 1

THE JURY CHARGE DESCRIBING THE MENTAL STATE NECESSARY FOR AN ACCOMPLICE TO BE GUILTY OF A PRINCIPAL'S FIRST-DEGREE ARMED ROBBERY WAS INCORRECT AND WARRANTS A NEW TRIAL.

POINT 2

THE TRIAL COURT SHOULD HAVE SUPPRESSED THE EVIDENCE WHICH POLICE SEIZED FROM THE CAR DEFENDANT WAS DRIVING.

POINT 3

DEFENDANT'S STATEMENTS TO POLICE SHOULD HAVE BEEN SUPPRESSED.

POINT 4

THE COMMENTS BY THE PROSECUTOR DURING SUMMATION WERE PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.

POINT 5

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE EXPERT-TYPE TESTIMONY THAT WASN'T QUALIFIED AS SUCH AND ON WHICH NO INSTRUCTIONS WERE GIVEN TO THE JURY (PLAIN ERROR).

POINT 6

DEFENDANT'S SENTENCE IS EXCESSIVE AND IMPROPER.

We reject the arguments of both defendants that the trial court erred in denying their suppression motions. Accordingly, Caldwell's conviction is affirmed. However, we agree with Point 1 raised by Watts and reverse and remand for a new trial as to him.

I

Caldwell was the principal in committing the armed robbery. Watts was tried under principles of accomplice liability. He drove Caldwell to and from the crime scene.

At about midnight on November 3, 2005, Bhupinder Singh was working as a gas station attendant in Linden. An assailant, wearing long-sleeved clothing and a mask, approached him on foot, brandishing a handgun, and demanded money. Singh turned over the day's receipts at the gas station, totaling about $700 to $900. The assailant, later identified as Caldwell, ran to a waiting car, driven by another individual, later identified as Watts. Singh was able to ascertain that the assailant was African-American. Singh provided the police with a general description of the car, including that it had no license plate and a white piece of paper attached. When the car drove off, Singh immediately telephoned the police.

One officer responded to the gas station and interviewed Singh, after which he broadcasted the information he obtained. Another officer, who was on patrol, observed a vehicle matching the description given about one mile from the gas station. It was being driven between fifty and sixty miles per hour in a twenty-five miles per hour zone. That officer followed the vehicle for about one minute, until it pulled into a 7-Eleven parking lot. The officer pulled in directly behind, and other officers also arrived at that location at about the same time.

Caldwell exited the passenger door. The police ordered him to keep his hands in front of him, and Caldwell complied. Watts then "flung open" the driver's side door and got out of the car. The police ordered him to remain still and Watts complied. Officers directed both defendants to lay on the ground, which they did.

Another officer then arrived and approached the car to ascertain whether it had any other occupants. Both doors were wide open. The officer did not observe any other occupants. However, he observed in plain view the "butt of a gun" on the floor behind the driver's seat. He alerted the other officers of what he saw. The supervising officer removed the gun from the vehicle. Also in plain view from the vantage point of the police while standing outside the vehicle were other items, including a black ski mask and clothing on the back seat. These items were also removed.

Singh was transported to the 7-Eleven. He identified the vehicle as the one that fled the gas station after the robbery. He also identified Caldwell as the man who robbed him.

Defendants were placed under arrest and transported to the police station. Watts gave two videotaped statements to the police, the first at about 2:30 a.m., and the second at about 11:30 a.m. He slept in between the statements. Prior to each statement, he was advised of his Miranda rights.

In his first statement, Watts said he "was held hostage" by Caldwell. He denied any knowledge of an armed robbery. He said he owed Caldwell about $100 and Caldwell approached him, became belligerent, and demanded the money he was owed. When Watts said he did not have it, Caldwell demanded that Watts drive him to the gas station and "get it for me." When Watts said he could not do that, Caldwell "pulled out a gun, he said you're going to the station with me." Watts said he then drove Caldwell in Caldwell's car to the gas station. When they arrived, Caldwell got out of the car with the gun, and returned fifteen minutes later with money in his hand. Watts explained that he did not simply drive away after Caldwell got out of the car, because he feared Caldwell would kill him or his girlfriend. Upon returning to the car, Caldwell told Watts, at gunpoint, to drive away, and Watts complied. Shortly thereafter, the two men pulled into the 7-Eleven.

In his second statement, Watts contradicted his first statement. He said Caldwell drove the car to the gas station and that he, Watts, was the passenger. He said that he knew in advance of the car ride to the gas station that, because Caldwell said he was going to "get" the money he was owed, Caldwell meant that he was going to rob the attendant. Watts also said he did not think Caldwell would actually rob the attendant. However, when Caldwell returned to the car with the money, Watts said he then knew for sure that Caldwell robbed Singh. In this statement, Watts also contradicted his earlier statement that he was being held hostage and forced to drive to the 7-Eleven by Caldwell. When asked whether Caldwell was holding him against his will, Watts replied "[n]ah, . . . I coulda not went." Further, in this statement, Watts insisted he never saw a gun at any point.

Watts testified in his own behalf at trial. He said he never planned to rob anyone that night, and he did not get into the car with Caldwell of his own free will, but only because Caldwell forced him at gunpoint. He further testified that while in the holding cell in the time between his first and second statements to the police, Caldwell was in a nearby cell and made threatening comments to him, which is why he changed his story in the second statement about whether he ever saw a gun. Watts admitted at trial that his second statement, in which he denied seeing a gun, was a lie.

As we stated, the State prosecuted Watts solely on an accomplice liability theory, contending that he willingly participated in the crime with Caldwell and that he shared a common purpose and intent with Caldwell to commit an armed robbery against Singh. The judge instructed the jury on accomplice liability principles, following the model jury charge. Watts does not contend on appeal that the initial charge was erroneous. However, as we will discuss in Part III of this opinion, in response to questions posed by the deliberating jurors regarding accomplice liability, the judge provided answers which were, in our view, erroneous, and require reversal.

II

We first address the suppression issue. Both parties moved to suppress physical evidence recovered from the car. In addition to the gun, mask and clothing that were found in plain view, the police further searched the car and found CDS in the center console and shotgun shells in the trunk. We need not address the CDS or shotgun shells, because defendant was acquitted with respect to the former and never charged with respect to the latter. The only items seized that are of significance in this appeal were the gun, mask, and other clothing.

First, this was not a motor vehicle stop as such. The officer following defendant did not activate his overhead lights and direct defendants to stop. They drove in to the 7-Eleven parking lot, and the officer followed them there. However, the police then approached defendants and directed commands at them, which constituted a seizure of their persons.

The first issue is whether this was a lawful seizure. Clearly, it was. In the immediate aftermath of a report of an armed robbery in the vicinity, a car matching the description given by the victim was seen. The assailant who had entered the car had been described only as an African-American, and the individual who exited the passenger side fit that very general description. As described by Singh, the car did not have a license plate and had a white piece of paper attached. The police reasonably suspected that this was the vehicle involved in the robbery. Because a gun was used in the robbery, the police acted reasonably and prudently in directing both occupants to remain still, keep their hands in sight, and lay down on the ground. Three of the officers involved at the scene testified at the suppression hearing. The judge found their description of the events credible, and based upon those events, found that the seizure of defendants was lawful. The judge's factual findings are well supported by the evidence, see State v. Locurto, 157 N.J. 463, 470-71 (1999), and the judge's legal conclusion was correct.

The next issue is whether the warrantless search of the automobile was justified under any of the recognized exceptions to the warrant requirement. The trial court found that the search was justified under the plain view and automobile exceptions. In their appellate briefs in the two cases, the State argues those exceptions and also the inevitable discovery doctrine. Defendants argue that none of these exceptions should apply. We do not agree with defendants.

We first consider the plain view exception. A simple observation into the interior of a vehicle by a police officer located outside the vehicle is not a "search" under the United States or New Jersey Constitutions. State v. Johnson, 274 N.J. Super. 137, 154 (App. Div.), certif. denied, 138 N.J. 265 (1994). "There is no legitimate expectation of privacy . . . shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers." Id. at 153; see also State v. Smith, 37 N.J. 481, 496-97, cert. denied, 374 U.S. 835, 83 S. Ct. 1879, 10 L. Ed. 2d 1055 (1963). "Thus, the viewing of objects which are in plain view within an automobile does not constitute an unlawful search." Johnson, supra, 274 N.J. Super. at 154.

In this case, the judge set forth a correct analysis when he said this was "not truly a search" within the meaning of the law because the contraband that was ultimately seized "was open to the world." The car doors were wide open, and the fact that one of the officers used a flashlight did "not transform an otherwise reasonable observation into an unreasonable search within the meaning of the Fourth Amendment or under the New Jersey Constitution." State v. Johnson, 171 N.J. 192, 210 (2002) (quoting State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999)).

The plain view exception first requires the officer to legally be in the viewing area. State v. Lane, 393 N.J. Super. 132, 144 (App. Div.), certif. denied, 192 N.J. 600 (2007). Second, the discovery of the evidence must be "inadvertent," meaning that the officer "did not know in advance where evidence was located nor intend beforehand to seize it." Ibid. (citations omitted). "[T]hird, the officer must have probable cause to associate the property with criminal activity." Ibid. In other words, the criminality of the object must be "immediately apparent." Id. at 149. We agree with the trial court's finding that these criteria were satisfied here.

The inevitable discovery doctrine requires the State to show that:

(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

[State v. Sugar, 100 N.J. 214, 238 (1985).]

In this case, the officers had determined that the car was to be impounded. It was unregistered and uninsured. The driver was unlicensed, and the vehicle identification number on the car did not correspond with a valid license plate. Thus, a tow truck had been called. While the record is not explicit on this point, it appears that the vehicle was ultimately towed and impounded.

An unregistered vehicle may be impounded. N.J.S.A. 39:10-6. A vehicle may also be impounded if it is being "operated under suspicious circumstances." N.J.S.A. 39:5-47. Because the officers had probable cause to believe the vehicle was involved in an armed robbery, the vehicle was being operated under suspicious circumstances, and therefore the impoundment was proper on this alternative basis as well. See State v. La Porte, 62 N.J. 312, 316 (1973) ("The police had the right to seize defendant's automobile since it had been reported as an instrumentality used in the robbery."). Following the impoundment of a vehicle or the seizure of property, the police will conduct an inventory search "in order to ensure that [the seized item] is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage." State v. Dickey, 152 N.J. 468, 483-84 (1998).

Accordingly, even if the handgun, ski mask and clothes were improperly seized from the car, they would have inevitably been discovered pursuant to a lawful inventory search after the impoundment of the vehicle. Thus, the inevitable discovery doctrine provides an alternative basis justifying the warrantless search.

Finally, we agree with the trial court that the automobile exception provides yet another alternative basis for the search. Our Supreme Court has recently summarized the automobile exception thusly:

[T]he warrantless search of an automobile in New Jersey is permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant. The notion of exigency encompasses far broader considerations than the mere mobility of the vehicle.

Exigency must be determined on a case-by-case basis. No one factor is dispositive; courts must consider the totality of the circumstances. How the facts of the case bear on the issues of officer safety and the preservation of evidence is the fundamental inquiry. There is no magic formula--it is merely the compendium of facts that make it impracticable to secure a warrant. . . .

Legitimate considerations are as varied as the possible scenarios surrounding an automobile stop. They include, for example, the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[State v. Pena-Flores, 198 N.J. 6, 28-29 (2009) (citations omitted).]

The initial stop here was clearly unexpected. Indeed, as we previously stated, this was not actually a motor vehicle stop initiated by the police. Further, as we have previously explained, there was substantial information provided to the police on the scene at the 7-Eleven from which they could reasonably conclude that this was probably the car involved in the gas station robbery, thus providing the requisite probable cause to believe that the car contained contraband or evidence of the crime.

The trial court found sufficient exigent circumstances to satisfy the third requirement under the automobile exception. He found it significant that an armed robbery had just occurred, the vehicle and occupants matched the description of the perpetrators, a gun was seen in plain view in the vehicle, the events occurred in the early morning hours, the vehicle was in a public parking lot, and "there was a sense of urgency to recover any other firearms that might have been available to the public." The judge did not find that the exigency was dissipated because there were four officers at the scene and only two defendants. It was noteworthy that the officers were unable to determine the owner of the car, and the possibility existed that someone other than the subjects present could have keys to the car and access to it and any other weapons which may have been present. See, e.g., State v. Hammer, 346 N.J. Super. 359, 363-65, 371 (App. Div. 2001) (Hollow-point bullets fell from driver's coat after car was pulled over for speeding; this, combined with no functioning trunk lock, provided sufficient exigent circumstances, in the form of a threat to the safety of the officers and public, to meet automobile exception even though back-up officers had arrived and the suspects had been secured).

We agree with the judge's analysis. Considering the totality of the circumstances, especially in light of the occurrence of these events in hot pursuit after the commission of an armed robbery and the observation of a gun in the car, exigent circumstances were established. The automobile exception was properly found applicable.

Accordingly, we affirm the order denying defendants' motion to suppress physical evidence seized from the car.

III

We next turn to the accomplice liability jury instruction issue. The State's primary position before the jury was that Watts knew all along that Caldwell was going to rob Singh at gunpoint, and that Watts joined him in that venture from the outset, agreeing to drive him to the gas station, providing him with information learned from his recent employment at the gas station about the layout, presence of security cameras, and the like, and agreed to drive him away from the scene as the "getaway driver." Thus, the State argued that all elements of accomplice liability were present throughout the criminal episode with respect to Watts and the requirement that he, in addition to aiding Caldwell in committing the crime, shared with Caldwell a common intent and purpose to commit an armed robbery against Singh. However, the State alternatively took the position that, even if Watts did not learn that Caldwell committed this armed robbery until Caldwell returned to the car with the money, by driving Caldwell away from the scene, he could have formed the requisite intent and purpose at that time to make him an accomplice to the armed robbery.

The alternative position described in the preceding paragraph became pertinent when the deliberating jurors posed two questions to the court:

[1.] Do we need to find that there was a shared conscious purpose through the entire commission of the robbery?

2. Can the purpose become apparent at any point of the robbery?

Over defense counsel's objections, the judge answered "no" to question 1 and "yes" to question 2. More particularly, the judge elaborated as follows:

[1.] Do we need to find there was a conscious shared purpose through the entire commission of the robbery?

First of all the State's theory is based upon accomplice liability which means I think the word conscious also means knowing. Remember with accomplice liability the defendant you have to find shared the purpose. It's not enough that he doesn't know what's happening, he has to share the purpose. So do we need to find there was a shared purpose through the entire commission of the robbery? The answer is no.

[2.] Can this purpose become apparent at any point of the robbery? The answer is yes. The State alleges that from the very beginning the defendant Watts knew and shared the purpose with Caldwell to go into the gas station -- it was the gas station. Right? Go into the gas station to commit the robbery. If you find that -- now with respect to that, the defense asserts from the very beginning he was forced and under duress to be in that car to go to that gas station. If you find that Watts did not know what Caldwell was doing when he went into the gas station, but if you find factually that when Caldwell came back to the car Watts became aware that a robbery had occurred and that Watts at that time shared in the purpose to commit the robbery and drove away, the State asserts that that's sufficient for the finding of a robbery.

. . . .

The State's argument is that if you have that scenario when he came out and he knew that he had committed the robbery he shared the purpose to commit the robbery to then drive the car away so that they wouldn't be apprehended.

[Emphasis added.]

The judge then re-administered the general instructions pertaining to accomplice liability, duress, and robbery.

Watts argues that the judge's answers to the jurors' questions misstated the law of accomplice liability and constituted reversible error. The State argues, on the contrary, that a person can be guilty of robbery as an accomplice even if he or she does not form the intent until after the "theft and force" elements of the robbery have been completed by the principal, because, under our robbery statute, N.J.S.A. 2C:15-1a, "[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." Indeed, at the time this case was tried, there was case law to support that position. See State v. Baker, 303 N.J. Super. 411 (App. Div.), certif. denied, 151 N.J. 470 (1997); State v. Williams, 232 N.J. Super. 432 (App. Div. 1989).

Since the trial of this case, a panel of this court reached a contrary conclusion in State v. Whitaker, 402 N.J. Super. 495 (App. Div. 2008), certif. granted, 197 N.J. 476 (2009). The State does not dispute that Whitaker supports Watts' position. The State argues that Whitaker was incorrectly decided. We do not agree with the State. In our view, the Whitaker analysis and holding was correct.

In Whitaker, defendant Davis, with defendant Whitaker standing nearby, shot and killed the victim. Id. at 503-04. Davis had intended to rob the victim but shot him instead when the victim attempted to punch Davis. Id. at 506. Whitaker and Davis fled the scene on foot, and while running, Whitaker advised Davis that Davis should "put it up, put it up," meaning that Davis should throw the murder weapon onto the roof of a house. Id. at 504.

During summations, the prosecutor told the jury that Whitaker could be convicted of first-degree armed robbery even if he did not intend for the principal to forcibly take anything from the victim, as long as he aided the immediate flight of the principal thereafter. Id. at 515, 518. The trial court's jury instructions "bolstered" this argument. Ibid. Whitaker was convicted of first-degree armed robbery and felony murder. Id. at 499-500.

We reversed Whitaker's conviction. Id. at 527. We stated:

The "critical issue" is not whether [Whitaker] uttered the "instruction" to Davis . . . but whether all the elements of the crime of robbery had been concluded before defendant provided his oral instruction.

[Id. at 515-16.]

We then noted that the State's theory of accomplice liability for robbery required a determination that:

[T]he phrase [in the robbery statute] "[a]n act shall be deemed to be included in the phrase 'in the course of committing a theft,'" includes acts other than those contained in . . . the robbery statute, which elevate simple theft . . . to the crime of robbery [(such as the use of force or threat of force)].

[Id. at 518-19 (citations omitted).]

We declined to construe the robbery statute so broadly. Instead, we concluded:

In summary, we hold that the phrase contained in the robbery statute, "[a]n act shall be deemed to be included in the phrase 'in the course of committing a theft,'" N.J.S.A. 2C:15-1a, refers only to those acts set forth in sections a(1), (2), and (3) of the statute which elevate simple theft, or attempted theft, to the crime of robbery. We also determine that the phrase does not encompass other acts committed by an alleged accomplice after all elements necessary to constitute the crime of robbery have concluded. To the extent that Williams, supra, 232 N.J. Super 432, and Baker, supra, 303 N.J. Super. 411, hold to the contrary, we disagree.

[Id. at 526 (footnote omitted).]

As part of our analysis in Whitaker, we found significant the Supreme Court's rejection in State v. Lopez, 187 N.J. 91, 98 (2006) of the "afterthought robbery" theory, determining that "intimidating or assaultive conduct that is unrelated to a theft cannot elevate the theft to robbery." Id. at 521. Analogizing to the analysis in Lopez and other decisions of our Supreme Court, we found a common thread "that the 'act of causing the injury,' or 'the threat to cause the injury,' is what has to occur 'during the course of' the theft or attempted theft, or in the immediate flight therefrom, to elevate theft or attempted theft to robbery." Id. at 521-22.

It seems to us that it would indeed be an anomalous result to reason that a principal cannot be convicted of an "afterthought robbery" but the principal's accomplice could. We find the analysis in Whitaker persuasive.

Under the State's theory of the interaction of the accomplice statute and the robbery statute, a person may be convicted of first-degree armed robbery even though he or she never had the specific intent of the forcible theft of the victim, as long as he or she became aware of the principal's commission of a forcible theft and subsequently intended to aid the principal in escaping. See Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:2-6a (2009) (explaining that the accomplice liability statute "does not define a separate crime," instead, if a person is guilty of complicity in a robbery, he or she is guilty of robbery).

The State contends that this is the correct result because by defining robbery to include the "immediate flight after," the New Jersey Criminal Code meant to broaden the common law definition of robbery. We do not agree that because the robbery statute extends the time period during which all essential elements of a robbery may be completed, it follows that a person in Watts' position should be able to be convicted of first-degree robbery. Cannel's commentary on this issue is instructive:

The definition of robbery under the Code is admittedly unusual in that it specifies that "in the course of" a theft includes actions of the perpetrator occurring "in immediate flight" after an attempted or completed theft. This variance from the common law rule is based on the presumption that a thief who uses force during flight would have employed such force to effect the theft had that been necessary. While this extension of the time period for conclusion of the crime makes sense where force is actually used during flight, it is far more questionable when the robbery is complete and the period is extended to ensnare defendants who assist a robber during flight absent other evidence of the culpability of the assisting parties. [The Williams] . . . result is apparently at odds with the Code's distinction between accomplice liability and criminal responsibility for hindering apprehension. As noted, reaching this result on the basis of the "in the course of" language extends the language beyond its intended compass.

[Cannel, supra, comment 7 on N.J.S.A. 2C:15-1 (citations omitted) (emphasis added).]

The State insists that the issue is not when the theft and force elements of the robbery took place, but rather when the "commission" of the robbery was complete. According to the State, in light of the "immediate flight" language, the "commission" of the robbery was not "complete" when Caldwell got back into the car after forcibly taking the money from Singh.

We reject this contention. The principal, Caldwell, had already committed all of the essential elements of armed robbery before entering the car. Each "act" required to commit an armed robbery had already occurred. No such "act" occurred here in the flight immediately following the commission of the theft, which, in turn, had been accompanied by the use of force or threat of immediate bodily injury, and while armed with a deadly weapon. See Lopez, supra, 187 N.J. at 101 (reasoning that our robbery statute requires that threats or violence be carried out in furtherance of the intention to commit theft, the intention to steal must precede or be coterminous with the use of force, and, as a result, a person who steals and thereafter uses violence in flight is guilty of robbery because the intention to commit the theft generated the violence).

The judge's answer to the jurors' questions allowed the jurors to find Watts guilty as an accomplice of armed robbery based upon a finding that Watts' participation in the crime did not begin until Caldwell returned to the car and Watts then first learned that Caldwell committed the robbery. For the reasons we have stated, and as more expansively stated in Whitaker, we conclude that in those circumstances, any such conduct by Watts in driving the getaway car could not result in accomplice liability for the crime Caldwell committed by his own conduct. We accordingly reverse Watts' conviction and remand for a new trial on the armed robbery charge.

IV

Although not necessary to our disposition of this appeal, for the sake of completeness, we comment briefly on Watts' remaining arguments.

Watts argues that his statements to the police should have been suppressed. Watts does not dispute that he was properly advised of his Miranda rights and that he knowingly and intelligently waived them. His contention is that his statements were not voluntarily given. However, after the State's witnesses testified, defendant's attorney advised the court that, after consulting with Watts, he would not testify, nor would the defense call any other witnesses. Counsel continued that, although she did not dispute the adequacy of the Miranda warnings, "for voluntariness though I could argue I think that the techniques used against him were psychologically coercive. In candor I don't think that I've made the showing with those detectives that would allow the court to rule in my favor on that issue so I'm not gonna waste too much of the court's time in argument on that." Counsel thus candidly acknowledged that her cross-examination of the State's witnesses did not detract from the State's proofs that defendant's statements were voluntarily made. Defendant makes no cogent argument on this point on appeal. From our review of the record of the Miranda hearing, we are well satisfied that the judge's finding of voluntariness was evidentially supported. No further discussion on this point is warranted. R. 2:11-3(e)(2).

Defendant complains of three remarks made by the prosecutor during summation: (1) a reference to "Bonnie and Clyde"; (2) reference to the fact that Watts had a cell phone but did not call the police; and (3) that Watts said that if he put a mask on and went into the gas station, Singh would still have known it was him.

In assessing whether a prosecutor's improper remarks in summation require reversal an appellate court should determine whether "the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Further, while an attorney may make remarks that constitute legitimate inferences from the facts, State v. Perry, 65 N.J. 45, 48 (1974), he or she may not go beyond the facts before the jury. State v. Farrell, 61 N.J. 99, 103 (1972).

Watts' counsel did not object to the Bonnie and Clyde reference. In the context in which the comment was made, it was quite innocuous, as indicated by the lack of objection by defense counsel. We find no error in that regard.

Watts' counsel objected to the cell phone remark. The judge sustained the objection and provided an adequate curative instruction, telling the jury that he did not know whether there was any evidence that Watts had a cell phone with him on the night of the crime. He informed the jurors it was for them to evaluate the evidence using their own recollection and judgment. The judge's instruction cured any potential error on this point.

With respect to the third comment, the prosecutor said that Watts said that even if he went into the gas station with a mask on, Singh would still know it was him. Defense counsel immediately objected on the ground that there was no evidence in the record supporting that statement. The State argued that in his second taped interview, Watts said, "[i]f I put a mask on my face and we just met and I came and walked out and came back in, would you know me?" However, the context of Watts' statement clearly indicated that Watts was referring to the fact that it would have done Caldwell no good to attempt to disguise himself because Caldwell had a unique voice and had been speaking with Singh earlier in the day for hours. No fair reading of Watts' statement implied that he (Watts) "need[ed] a middle man," as the prosecutor stated in summation.

The prosecutor's statement on this point went beyond the facts before the jury and was not a fair inference from the facts presented at trial. Ibid. However, this single impropriety was not so egregious as to have denied Watts a fair trial. Frost, supra, 158 N.J. at 83.

Watts argues on appeal that the court erred in permitting a detective to testify that the gun used in the robbery was operable, because the detective did not establish his credentials as an expert and no expert instruction was provided to the jury. First, this point is moot because defendant was acquitted of any offense for which operability is relevant. On retrial of the armed robbery, operability is not relevant with respect to that offense. Further, the detective test fired the gun and observed that it worked. He therefore gave proper lay opinion based upon his own perceptions. See N.J.R.E. 701. Expertise is not required to test fire a gun and report that it worked. And, when the judge offered to give an expert instruction to the jury, defense counsel said, "No, you don't have to read the expert opinion to the jury for whether the gun worked or not." There was no error on this point.

Finally, defendant argues that his eleven-year sentence was excessive. The judge found two aggravating factors, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3), and the need for deterrence, N.J.S.A. 2C:44-1a(9). The judge found no mitigating factors. Although finding a preponderance of aggravating factors, the judge apparently attributed relatively light weight to the aggravating factors and imposed a sentence far below the fifteen-year midrange permissible for first-degree crimes, imposing a sentence at the low end of that range. The judge's findings on aggravating and mitigating factors are supported by substantial, credible evidence in the record, and we are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Watts also asserts a semblance of a disparity argument. He does not argue that his sentence was impermissibly disparate from Caldwell's five-year sentence with a five-year period of parole ineligibility. Instead, he argues that Caldwell was never convicted of any crime, although he was the principal in this case. However, Caldwell was convicted by virtue of his guilty plea.

Although Caldwell has a substantial prior criminal record and his role in this crime was more egregious than that of Watts, he received a substantially lower sentence. The reason for Caldwell's lower sentence derived from the deadlocked jury in his separate trial and the reluctance of the prosecutor and the trial judge to have another trial. From the colloquy at the plea hearing, the prosecutor agreed that Caldwell could be sentenced within a second-degree range in exchange for his plea to first-degree robbery, and that the sentence would be concurrent to the certain persons sentence. The judge said to Caldwell: "Now, I spoke to your attorney about this case and based upon what, I believe, were interests of judicial economy, that is that we had spent two weeks in trial on this matter, that a new trial date would have to be listed with additional time and expense, that I was willing to tell you that I would not sentence you above the minimum for a second degree term, which was 5 years at 85 percent." At sentencing, the judge addressed Caldwell as a "[v]ery lucky man."

Considering these circumstances and the absence of any persuasive disparity argument by Watts, we find no basis to conclude that Watts' sentence was excessive merely because Caldwell received a significantly lower sentence. See State v. Roach, 167 N.J. 565, 570 (2001).

V

On A-0552-07T4, Caldwell's conviction and sentence are affirmed.

 
On A-4331-06T4, Watts' conviction of first-degree robbery is reversed, and the matter is remanded for a new trial.

The mandatory NERA period of parole supervision for this first-degree crime should have been five years, notwithstanding that defendant was sentenced in the second-degree range. N.J.S.A. 2C:43-7.2c; State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000).

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

The Supreme Court heard argument in Whitaker on September 15, 2009.

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A-4331-06T4

December 4, 2009