STATE OF NEW JERSEY v. EDUARDO MCLAUGHLIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3679-06T43679-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDUARDO MCLAUGHLIN,

Defendant-Appellant.

____________________________

 

Submitted March 25, 2009 - Decided

Before Judges Stern, Waugh and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

05-05-1782-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Stephen W. Kirsch, Assistant

Deputy Public Defender, of counsel and on the

briefs).

Anne Milgram, Attorney General, attorney for

respondent (Robert E. Bonpietro, Deputy

Attorney General, of counsel and on the briefs).

PER CURIAM

Defendant Eduardo McLaughlin appeals his conviction for felony murder, robbery, and related charges. He contends the trial court committed reversible error in admitting hearsay statements of a co-conspirator. Although we agree that the disputed statements were not admissible under the hearsay exception for co-conspirator statements, we conclude that the admission of one hearsay statement was not plain error and that the remaining statements were admissible under a different hearsay exception.

Defendant also contends that the trial court committed plain error in its instructions to the jury on accomplice liability. We find no reversible error in the jury instructions.

We affirm defendant's convictions.

I

On the night of June 3, 2004, police in Camden found a Mazda van burning in a wooded area. Through the license number, they contacted the owner, who told them that her brother, Thong Hyunh, 20, had borrowed the van earlier that day. She was unable to contact Thong by cell phone. Six days later, Thong's decomposed body was found in brush near a highway in Camden.

Within days, the State identified Miguel Serrano as a suspect and arrested him. About three weeks after the murder, defendant Eduardo McLaughlin, along with his older brother, Pablo McLaughlin, were also arrested and charged. Defendant was a close friend of Miguel Serrano and an acquaintance of the victim.

On June 24, 2004, the police obtained a recorded confession from Pablo in which he named Miguel, defendant, and himself as the persons who committed the murder in the course of a robbery. Later, the State entered into a plea agreement with Pablo by which he agreed to cooperate and testify in exchange for a plea of guilty to robbery and a sentence of eighteen years in prison with eighty-five percent to be served before parole.

A grand jury charged all three men with purposeful murder, in violation of N.J.S.A. 2C:11-3a(1); felony murder, in violation of N.J.S.A. 2C:11-3a(3); first-degree robbery, in violation of N.J.S.A. 2C:15-1; aggravated arson, in violation of N.J.S.A. 2C:17-1a(2); second-degree burglary, in violation of N.J.S.A. 2C:18-2; two counts of hindering apprehension, in violation of N.J.S.A. 2C:29-3b(1); and conspiracy, in violation of N.J.S.A. 2C:5-2. Defendant was tried separately over nine days in July 2006. The State presented evidence to establish the following facts.

On June 3, 2004, the victim Thong drove to Philadelphia in his sister's van to cash checks at a check cashing store. He was doing this task in place of his older brother, who cashed between $10,000 and $30,000 in checks each week at the same check cashing store. On June 3rd, Thong left the store sometime before 2:00 p.m. with about $17,000 in cash.

Defendant and Thong had known each other in school and had resumed contact recently. Thong's cell phone records revealed calls on various dates to and from a cell phone belonging to defendant's mother and used by defendant. Several calls had occurred the night before and on the morning of June 3rd, with the last call occurring at 11:30 a.m. When questioned several days after the crimes, defendant said he was supposed to meet Thong for drinks on June 3rd but Thong had not called him as planned.

In his recorded statement to the police, Pablo said that Miguel, defendant, and he had discussed committing the robbery and killing of Thong for about a week before the date it happened. Defendant and Miguel knew Thong would be carrying a large amount of cash. Defendant brought Thong to Pablo's house on the afternoon of June 3rd. Pablo and Miguel were already there. Thong and defendant sat at a table counting cash when a struggle ensued. Miguel held a pillow over Thong's face while defendant held him down and took cash from his hands as Thong was struggling and screaming. After Thong stopped moving, defendant and Miguel carried him into the basement, where they wrapped duct tape around his face, neck, legs, and arms and wrapped his body in sheets. After Thong was placed in the basement, defendant borrowed Pablo's car to go buy an all terrain vehicle, an ATV. Later, defendant and Miguel left to dispose of Thong's van. They came back together on an ATV carrying a small gasoline can, and Pablo saw burn marks on defendant and Miguel. Sometime that night, defendant and Miguel moved Thong's body out of Pablo's house. According to Pablo, Miguel took about $10,000 and defendant about $6,000. Pablo denied getting any money himself.

At trial, Pablo recanted parts of his statement, claiming he had lied to police to protect himself because the police had told him that either Miguel or defendant had made statements that he was the one primarily responsible. He later learned that his brother, the defendant, had not confessed or implicated him. In his trial testimony, Pablo said that Thong had come alone to his house and that defendant was not there. After his recantation on the witness stand, Pablo's recorded statement was played for the jury.

Pablo's statement was supported in part by the testimony of his fiancée, Michele Rivera. She testified that she lived with Pablo. In June 2004, she came downstairs out of the shower when she heard people fighting, but she did not see who was fighting. Pablo ordered her to leave, and she went back upstairs. She also said she did not know whether defendant was there.

Ervin Gonzalez, a close friend of Pablo who was facing drug charges at the time, also testified pursuant to a plea agreement. He said that he knew defendant and occasionally socialized with him as well as Pablo. He testified that defendant and Miguel had attempted to enlist his help in robbing a "Chinese guy" who carried a lot of money. They offered him a couple of thousand dollars. He was interested until he heard that they would have to kill the victim because he was acquainted with defendant. At that point, Gonzalez backed out.

Gonzalez also testified that Michele Rivera had told him after Pablo's arrest that defendant, Miguel, Pablo, and the "Chinese guy" were in her home the day she heard the fighting. Concerning his plea agreement, Gonzalez testified that he had been facing a prison term of up to ten years on drug charges and that he received a sentence of probation and 364 days house arrest in exchange for his cooperation. He admitted that he was testifying for his own benefit.

Gonzalez's testimony was supported by Camden County Senior Investigator Martin Wolf, who testified that Miguel's girlfriend, Jessica Pabon, told him that Miguel had told her that he and defendant had approached Gonzalez about the robbery. At trial, the defense did not object to this brief testimony from Investigator Wolf, but defendant raises it on this appeal as a ground for reversal because it was inadmissible hearsay.

Jessica Pabon also testified at the trial. She said that she lived with Miguel and they had a child together. Defendant was Miguel's friend and often stayed at their house. Sometime before the homicide, Miguel told her that he and defendant were "planning on robbing an oriental young man" because he would be "an easy target." On one morning, Miguel told her that he and defendant were going to observe the movements of the victim. Defendant objected to the part of this testimony from Pabon that included reference to defendant. The court overruled the objection, agreeing with the prosecutor that it was admissible under the hearsay rules as statements of a co-conspirator.

The State presented additional circumstantial evidence linking defendant, Pablo, and Miguel to Thong's robbery and murder. A witness observed three men in vehicles matching general descriptions of those owned by defendant and Michele Rivera drive without lights onto her street on the night of June 3, 2004. Two of the men got out, opened the trunk of one vehicle, and dumped what appeared to be a body on the side of a highway in Camden. The witness went out the next morning and saw that it was a body with duct tape and sheets wrapped around it, but she did not report her discovery to the police for six days because she did not want to be involved and become a witness. Eventually a friend convinced her to call the police because the body had still not been discovered by others.

Another witness testified that on the afternoon of June 3rd Miguel bought a used ATV from her paying $1,000 in cash and taking over the remaining payments. She also testified that defendant was at her house with Miguel for about an hour when he bought the ATV.

A witness who lived with her family in two abandoned school busses in the woods observed a van followed by an ATV drive into the woods where the Mazda van was found burning. Five minutes later, the witness saw smoke coming from that area of the woods. She did not see either of the two men driving the van and ATV well enough to be able to identify them.

The State presented testimony from a detective that he found a bracelet in a basket in Miguel Serrano and Jessica Pabon's residence. Thong's sister identified the bracelet as belonging to Thong. In her testimony, Jessica Pabon denied that Miguel was ever in possession of the bracelet, but she said that she had seen defendant with it.

A search of Miguel's mother's home turned up $1,000 in cash in $100 bills hidden in a shoe box in the attic. Miguel's sister said that the money was his. The sister and other witnesses testified that defendant and Miguel made several large purchases shortly after June 3rd. Defendant bought a used Honda Accord, a DVD player, a television, and a cell phone. In addition to the ATV, Miguel bought a television and some new clothes.

Miguel's teenage sister testified that she had become friendly with defendant and talked to him regularly on the phone or in person. Defendant had introduced her to Thong on one occasion and she had seen Thong a few other times with defendant. When she heard news reports that Thong was missing, she mentioned it to defendant, and he told her never to talk about it again. She asked him why, and he said he could not tell her.

The jury deliberated for two and a half days. After asking for further instructions on accomplice liability several times, the jury convicted defendant of aggravated manslaughter as a lesser included offense of murder, felony murder, robbery, hindering apprehension, and conspiracy. It acquitted him of purposeful murder and aggravated arson. The burglary charge had previously been dismissed by the judge.

At sentencing, the judge merged the aggravated manslaughter, robbery, and conspiracy charges into felony murder and sentenced defendant to forty years in prison with eighty-five percent to be served before parole. He also sentenced defendant to four years in prison on each of the two hindering charges to run concurrently with each other but consecutively to the forty year sentence.

II

Defendant contends that the trial court erred in admitting over defense objection testimony of Jessica Pabon about Miguel Serrano's statements to her. Pabon testified as follows:

Q (Prosecutor): Did Miguel ever speak to you regarding a robbery that he was involved in planning in June of 2004?

A: Yes.

Q: Who was the victim? Who was - who was he planning to rob?

A: They were planning on robbing an oriental young man.

Q: Okay. Why - why were they planning on robbing that specific person?

A: Because supposedly he would have been an easy target.

Q: Did Miguel tell you who was he planning this robbery with someone else?

DEFENSE COUNSEL: Objection, your Honor.

PROSECUTOR: It's a statement of a co-conspirator and they are free to call him.

DEFENSE COUNSEL: Well, it's a it can be used for whatever the co-conspirator said, not who else he was going to do it with.

PROSECUTOR: It's also a statement of the defendant.

DEFENSE COUNSEL: Not from the defendant.

THE COURT: Hold off a minute. A statement from of the defendant through a co-conspirator.

PROSECUTOR: No, one of the co-conspirators yes. It's a statement of a co-conspirator, which is admissible.

THE COURT: Right. I'll allow it.

Q (Prosecutor): Did he tell you who he was planning this robbery with?

A: With Eddie.

Q: Meaning the defendant?

A: Yes.

Q: All right. Did Miguel ever tell you anything about whether they were doing anything, meaning he and the defendant, doing anything to watch the victim?

A: I remember this one day, umm, they were leaving early in the morning and they were going to go watch what he does, what he did throughout his day, something like that.

Q: Okay, meaning the victim.

A: Uh-huh, yes.

Defendant argues that Miguel's statements to Pabon are inadmissible hearsay and should not have been admitted. See N.J.R.E. 802. The State responds that the statements were admissible under the co-conspirator exception to the hearsay rule. See N.J.R.E. 803(b)(5). That exception allows the admission of "a statement offered against a party which is . . . made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan." Ibid.

A

An out-of-court statement must meet three conditions to qualify for admission under the co-conspirator exception: "(1) the statement must have been made in furtherance of the conspiracy; (2) the statement must have been made during the course of the conspiracy; and (3) there must be 'evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it.'" State v. Savage, 172 N.J. 374, 402 (2002) (quoting State v. Phelps, 96 N.J. 500, 509-10 (1984)).

Defendant concedes that Miguel's statements to Pabon were made during the course of the conspiracy and that the State presented independent evidence of a conspiracy among Miguel, Pablo, and defendant to rob and kill Thong. He argues that Miguel's statements do not satisfy the first condition for admissibility because they were not made in furtherance of the conspiracy.

The State responds that a reasonable inference can be drawn from the record that Miguel made those statements to obtain Pabon's assistance in evading apprehension. The State cites cases in which statements were found to be in furtherance of a conspiracy that were made by a conspirator to a person outside the conspiracy for the purpose of seeking assistance in concealing evidence or evading apprehension. See State v. Savage, supra, 172 N.J. at 406 (attempt to convince friend to provide false alibi); State v. Hunt, 115 N.J. 330, 366-68 (1989) (statement to girlfriend regarding murder was made to enlist her help in disposing of evidence); State v. James, 346 N.J. Super. 441, 457-59 (App. Div.), certif. denied, 174 N.J. 193 (2002) (statement to friend regarding shooting was made to obtain help in disposing of murder weapon); State v. Cherry, 289 N.J. Super. 503, 522-23 (App. Div. 1995) (statement made for purpose of concealing evidence and soliciting an alibi).

"The principal question in the 'in furtherance' issue is whether the statement promoted, or was intended to promote, the goals of the conspiracy." United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1199 (2d Cir.), cert. denied sub nom. Lavery v. United States, 493 U.S. 933, 110 S. Ct. 324, 107 L. Ed. 2d 314 (1989); see State v. Farthing, 331 N.J. Super. 58, 84 (App. Div.), certif. denied, 165 N.J. 530 (2000). "[S]tatements may be found to be 'in furtherance' of the conspiracy . . . if they 'prompt the listener to respond in a way that facilitates the carrying out of criminal activity.'" Beech-Nut Nutrition Corp., supra, 871 F.2d at 1199 (quoting United States v. Rahme, 813 F.2d 31, 35 (2d Cir. 1987)).

We find no evidence to support the State's contention that Miguel made the statements to Pabon to enlist her help in evading apprehension. Nor is there any evidence in the record that Miguel's statements were made to promote in any other way the objectives of the conspiracy. Rather, it appears that Miguel told his girlfriend about the planned robbery without soliciting her help in any way. We agree with defendant that there is a "distinction . . . between a comment or statement or narrative to a third person concerning the conspiracy and one made in furtherance of it." State v. Yedwab, 43 N.J. Super. 367, 373 (App. Div.), certif. denied, 23 N.J. 550 (1957). Because Miguel's statements were not made in furtherance of the conspiracy, they were inadmissible under the co-conspirator exception to the hearsay rule, N.J.R.E. 803(b)(5).

B

We conclude, however, that the statements were admissible under a different hearsay exception, N.J.R.E. 803(c)(3), relating to Miguel's plan and intent as his then-existing state of mind.

Because an appeal is taken from the court's ruling rather than reasons for the ruling, we may rely on grounds other than those upon which the trial court relied. See State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002); State v. DeLuca, 325 N.J. Super. 376, 389 (App. Div. 1999), aff'd as modified, 168 N.J. 626 (2001). "It is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance." Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); see Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 (App. Div. 2008); Khalil v. Motwani, 376 N.J. Super. 496, 499 (App. Div. 2005); Ellison v. Evergreen Cemetery, 266 N.J. Super. 74, 78 (App. Div. 1993).

The hearsay exception under N.J.R.E. 803(c)(3) allows the admission of an out-of-court

statement made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.

[Ibid.].

This hearsay exception has deep roots in the common law and is sometimes called the Hillmon doctrine after a well-known United States Supreme Court case of that name. See Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285, 294-300, 12 S. Ct. 909, 912-14, 36 L. Ed. 706, 710-12 (1892). The relevant issue in Hillmon was the identity of a body for purposes of life insurance claims. The insurance companies alleged that the insured had feigned his death and that the body was actually that of another man. The Supreme Court held that letters written by the other man to his sister and fiancée describing his plan and intent to travel with the insured were admissible as evidence offered by the insurance companies. The current version of this doctrine is the hearsay exception contained in N.J.R.E. 803(c)(3).

The doctrine recognizes that "when a person's engagement in a course of conduct or an act . . . is relevant to the resolution of a controversy over an occurrence which becomes the subject of subsequent litigation . . . declarations of the person of his present intention or plan to do so, are competent, substantive, and original evidence of his probable engagement in the course of conduct or act." State v. Thornton, 38 N.J. 380, 389 (1962). In Thornton, the Court held that the deceased victim's statement to her cousin of intention to visit her estranged husband was admissible in a prosecution of the husband for her murder. Id. at 388-94.

In Hunter v. State, 40 N.J.L. 495, 540-42 (E. & A. 1878), also a prosecution for murder, the highest court of this State at the time held that the victim's comments to his son and a note to his wife of his plan to go to Camden with the defendant were admissible in evidence.

In State v. Downey, 206 N.J. Super. 382, 388-93 (App. Div. 1986), however, we held that a murder victim's undated handwritten note, stating that if he is harmed, his wife and her friends should be suspected, was inadmissible because the victim's state of mind was not relevant to an issue in the case. In Downey, we also said, "The necessary predicate to admission of such evidence is that: a) the statement reflects a mental or physical condition of the declarant which constitutes a genuine issue in the case or b) the statement is otherwise relevant to prove or explain the declarant's conduct." Id. at 390.

Defendant argues that Miguel's state of mind was not relevant to the prosecution of defendant McLaughlin. See State v. Clegg, 31 P.3d 408, 413 (Or. 2001) (identifying three distinct inquiries regarding admissibility of evidence under the state of mind exception: (1) whether the evidence proves the declarant's then existing state of mind, (2) whether the declarant's state of mind is relevant, and (3) whether the evidence might be used for any purpose other than to prove the relevant disputed issue). But see United States v. Donley, 878 F.2d 735, 737 n.3 (3d Cir. 1989) (quoting J. Weinstein & M. Berger, 4 Weinstein's Evidence, para. 803(3)[04] at 803-115-16, for the proposition that relevancy is a separate issue that should not be confounded with conditions constituting a hearsay exception), cert. denied, 494 U.S. 1058, 110 S. Ct. 1528, 108 L. Ed. 2d 76 (1990).

Citing State v. Modell, 260 N.J. Super. 227 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993), defendant contends that Pabon's testimony was not admissible to prove defendant's state of mind rather than Miguel's state of mind. We agree that the statements of Miguel to Pabon were not admissible to prove defendant's state of mind in the absence of evidence that defendant himself was present and adopted Miguel's statements as his own. See N.J.R.E. 803(b)(2) (adoptive admissions). We disagree, however, that the disputed statements could only be relevant to prove defendant's state of mind.

Nothing in Modell states that the declarant's statements reflecting his own state of mind may not be used as evidence relevant to the defendant's participation in the crime. In fact, the New Jersey cases cited earlier, and the majority of cases from other jurisdictions, stand for the opposite proposition. See State v. Thornton, supra, 38 N.J. at 389; Hunter v. State, supra, 40 N.J.L. at 540-42.

We recognize that some courts have questioned the scope of admissible evidence under this hearsay exception, discussing its restriction to only the conduct of the declarant himself, not anyone else. See Gual Morales v. Hernandez Vega, 579 F.2d 677, 680 n.2 (1st Cir. 1978); United States v. Mangan, 575 F.2d 32, 43 n.12 (2d Cir.), cert. denied, 431 U.S. 931, 99 S. Ct. 320, 58 L. Ed. 2d 324 (1978); United States v. Jenkins, 579 F.2d 840, 843 (4th Cir.), cert. denied, 439 U.S. 967, 99 S. Ct. 458, 58 L. Ed. 2d 427 (1978); People v. Alcade, 148 P.2d 627, 633 (Cal. 1944) (Traynor, J. dissenting); see also discussion of cases and secondary materials in United States v. Pheaster, supra, 544 F.2d at 376-80.

Nevertheless, New Jersey has adopted the Hillmon doctrine as expressed originally by the United State Supreme Court and without restriction. See Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 803(c)(3) (2008); see also Brown v. Tard, 552 F. Supp. 1341, 1352 (D.N.J. 1982) (New Jersey's rule has not been the subject of debate regarding the broader scope of the Hillmon doctrine). The drafters of the New Jersey rule expressed their intent to maintain the common law rule established in Hillmon and in Hunter v. State, supra, 40 N.J.L. at 534-40, stating further that the "good faith" requirement of N.J.R.E. 803(c)(3) provides discretion to the courts to exclude out-of-court statements that are unreliable. See Biunno, supra, at 773.

Here, Miguel's statements to Jessica Pabon addressed a genuine issue in the case, whether he and defendant committed the robbery and homicide. They were clearly relevant to prove the conduct of Miguel and defendant. Miguel's state of mind was also relevant as proof of Miguel's commission of the crimes for purposes of the State's proofs that defendant was culpable as an accomplice and co-conspirator of Miguel. Miguel's statements expressed his intent, plan, and design to commit a robbery with defendant. The plan and design included Miguel's going with defendant to scout the victim's movements.

Defendant also argues that admitting Jessica Pabon's testimony under N.J.R.E. 803(c)(3) "would run counter to the entire body of law" applicable to the hearsay exception for co-conspirator statements. He states that the co-conspirator exception has "carefully distinguished" between statements that are in furtherance of a conspiracy and those that are "merely about the existence" of the conspiracy.

Defendant's argument overstates the implications of our decision. Many statements about the existence of a conspiracy would not satisfy the requirements of the state of mind exception contained in N.J.R.E. 803(c)(3). Not only are statements excluded from that exception if they are "of memory or belief to prove the fact remembered or believed," but the statements must be made in "good faith" of a "then existing state of mind." These criteria limit the types of statements that are inadmissible under the co-conspirator exception, yet are admissible under the state of mind exception.

Although one or two of the prosecutor's questions to Pabon potentially sought responses about what had already been done, Pabon's brief answers only referred to present or future intentions or plans. They did not include any "statement of memory or belief [by Miguel] to prove the fact remembered or believed," the types of statements prohibited by N.J.R.E. 803(c)(3).

Additionally, Miguel's comments were made in good faith, that is, "in a natural manner and under circumstances dispelling suspicion and involving no suggestion of sinister or improper motives." State v. Long, 173 N.J. 138, 154 (2002) (quoting Thornton, supra, 38 N.J. at 390). While it might be unusual for someone to disclose his plan to commit a serious crime to another who is not a participant in the crime, other evidence in this case suggests that defendant, Pablo, and Miguel were not carefully concealing their criminal activity from family and friends. They solicited Ervin Gonzalez to commit the crime with them. They robbed and killed Thong in Pablo's house while Michele Rivera was present. They did not go out of Camden to dump the body or to burn the van. Defendant had Thong's bracelet in his possession. Miguel hid cash in his mother's house with his sister's knowledge. And defendant and Miguel immediately started buying high-priced items fully visible to their family and the community. Thus, it would not be out of character for Miguel to reveal to his girlfriend that he planned to commit a robbery. The evidence suggests a reliable statement made to her in good faith.

Furthermore, his naming defendant as his co-conspirator and accomplice was also done in good faith and reflected his then existing state of mind, intent, and plan. Defendant was Miguel's friend and stayed with Miguel and Pabon from time to time. Miguel had no apparent reason to name defendant falsely as a person who planned to commit the robbery with him and intended to go that morning to scout Thong's movements. Also, Ervin Gonzalez corroborated the accuracy of Pabon's testimony by stating that defendant and Miguel had tried to recruit him to assist with the robbery and murder.

We conclude that the testimony of Jessica Pabon about the statements made to her by Miguel meets all the conditions for admission in evidence under N.J.R.E. 803(c)(3). Although Miguel's statements were not admissible as statements in furtherance of the conspiracy, their admission was not error.

Finally, defendant's constitutional rights were not violated by admission of Miguel's statements to Jessica Pabon. In Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004), the United States Supreme Court held that the Sixth Amendment's confrontation clause forbids the use of "testimonial" out-of-court declarations if the declarant is not a witness at trial subjected to cross-examination. The meaning of "testimonial" out-of-court declarations was explained in Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006), and by the New Jersey Supreme Court in State ex rel. J.A., 195 N.J. 324, 345-47 (2008). Here, Miguel's statements were not "testimonial" and, therefore, not subject to the confrontation clause.

III

Defendant also contends that the trial court erred in admitting the following testimony of Investigator Martin Wolf:

Q (Prosecutor): . . . why did you first start looking for [Ervin Gonzalez]?

A: The -- one of the Jessicas mentioned Erv.

Q: Can you look at your report and see if it says which one towards the bottom of the page?

A: Jessica Pabon.

Q: And what did she mention about Erv that made you want to talk to him and figure out who it was?

A: She said that another person named Erv also was approached about the robbery but declined to participate in it.

Q: Who did she say had approached him?

A: She said Serrano - - Miguel Serrano and Eduardo McLaughlin.

Q: And who told her about that.

A: Miguel Serrano.

Defendant did not object to Investigator Wolf's testimony at trial but now contends that it was inadmissible hearsay. The State concedes that Wolf's testimony included hearsay but argues its admission was not plain error.

Our rule pertaining to trial errors that are not based on constitutional rights, Rule 2:10-2, provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." The error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. State v. Branch, 182 N.J. 338, 353 (2005); State v. Macon, 57 N.J. 325, 336 (1971); State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000).

"For a hearsay error to mandate reversal, '[t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Hightower, 120 N.J. 378, 410 (1990) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). "In determining whether the admission of disputed evidence was harmless, we focus on 'whether in all the circumstances there was a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits.'" State v. Kemp, 195 N.J. 136, 149-50 (2008) (quoting State v. Macon, supra, 57 N.J. at 338).

The testimony by Investigator Wolf lent credibility to the testimony of Gonzalez that he was approached by defendant to participate in the crimes against Thong. As direct testimony regarding defendant's participation in planning the robbery, Gonzalez's testimony was important, but it was only one piece of evidence implicating defendant. Perhaps the most important evidence was the recorded statement of defendant's brother, Pablo, describing in detail how the robbery and homicide were committed in his home. His recantation at trial was not credible in view of Pablo's own testimony that he had been tricked into implicating his own younger brother. Pablo had obvious motivation to lie in his recantation, especially because his mother and sister were present in the courtroom as he testified.

Furthermore, the State offered in evidence the testimony of other relatives and friends of defendant, as well as neutral citizen witnesses, who provided strong circumstantial evidence of defendant's participation in the crimes. Comparing the probative value of the inadmissible testimony of Investigator Wolf to the wealth of other evidence against defendant, see State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001), overruled in part on other grounds, State v. Dalziel, 182 N.J. 494 (2005), we conclude that the jury would not have reached a different conclusion if the disputed testimony of Investigator Wolf had been excluded. That testimony was not "clearly capable of producing an unjust result," and its admission does not raise a reasonable doubt in our minds about whether it affected the fairness of defendant's trial. We find no reversible error in admission of Wolf's testimony without objection.

IV

Defendant also argues that the jury charge on accomplice liability was flawed. Because defendant did not object to the charge at trial, his contentions warrant reversal only if the jury charge constitutes plain error. R. 1:7-2; R. 2:10-2.

Our rules provide that a defendant waives the right to contest an instruction on appeal if he does not object to the instruction. R. 1:7-2. We may reverse on the basis of unchallenged error if we find error that was "clearly capable of producing an unjust result."

[State v. Torres, 183 N.J. 554, 564 (2005)(quoting R. 2:10-2)].

We find no plain error here.

The trial court gave a lengthy instruction on accomplice liability as part of the initial charge to the jury. That instruction, with minor modifications, was repeated to the jury three times during deliberations in response to questions from the jury. In relevant part, the initial instructions were:

In this case, the State alleges that [defendant] is equally guilty of the crimes committed by Pablo McLaughlin and Miguel Serrano because he acted as their accomplice with the purpose that the specific crimes charged be committed. In order to find the defendant guilty of the specific crimes charged, the State must prove beyond a reasonable doubt each of the following:

That Pablo McLaughlin and/or Miguel Serrano committed the crimes of murder and/or felony murder and/or aggravated arson and/or robbery -- and/or robbery and/or hindering. I have previously explained the elements of these offenses.

Second, that the defendant solicited them or either of them to commit these crimes and/or did aid or agree or attempt to aid or agree -- or attempt to aid in the planning or committing of these offenses.

Third, that the defendant's purpose was to promote or facilitate the commission of the offenses which I have listed or any one of them.

And, fourth, that the defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act.

. . . .

If you find that [defendant], with the purpose of promoting or facilitating the commission of the offenses I have stated, solicited Pablo McLaughlin and/or Miguel Serrano to commit these offenses and/or aided or agreed or attempted to aid them or either of them in the planning or committing of these offenses, you should consider him as if he committed the offense himself. Since there is more than one offense charged, the accomplice status should be considered separately as to each charge.

. . . .

In sum, in order to find the defendant guilty of committing the crimes of murder, felony murder, robbery, aggravated arson, hindering or any one of those in the alternative, the State must prove each of the following elements beyond a reasonable doubt:

One, that the defendant -- that Pablo McLaughlin and/or [Miguel] Serrano committed the crimes of murder and/or felony murder and/or aggravated arson and/or robbery and/or hindering.

Two, that this defendant . . . solicited Pablo McLaughlin and/or Miguel Serrano to commit these offenses and did aid -- and/or did aid or agree or attempt to aid them in

-- or either of them in the planning or committing of these acts.

Third, that the defendant's purpose was to promote or facilitate the commission of these offenses.

Fourth, that the defendant possessed a criminal state of mind that is required to be proven against the person who actually committed the criminal act.

The accomplice charge should be separate -- should be considered separately as to each of the offenses charged.

[emphasis added].

On the first day of deliberations, the jury asked for a definition of accomplice. In reponse, the court re-read the entire accomplice charge with some minor modifications to the quoted language. The sixth quoted paragraph was modified as follows:

If you find that [defendant], with the purpose of promoting or facilitating the commission of murder and/or felony murder and/or robbery and/or aggravated arson and/or hindering, solicited Pablo McLaughlin and/or Miguel Serrano to commit them or any one of them or aided or agreed or attempted to aid them in planning or committing these offenses, then you should consider him as if he committed the crime or crimes himself.

The accomplice status should be considered separately as to each of the charges.

[emphasis added].

The ninth quoted paragraph was also modified as follows:

Second, that [defendant] . . . solicited them or either of them to commit these crimes or any one of them or did aid or agree or attempt to aid or agree in the planning or committing of any or all of these crimes.

[emphasis added].

Later that afternoon, in response to another jury question asking whether Pablo and Miguel had already been convicted of any murder charges, the court re-read a portion of the accomplice liability charge. The ninth quoted paragraph of the initial charge was modified as follows:

Two, that the defendant solicited either or both of them to commit these offenses and did aid or agree or attempt to aid them or either of them in the planning or committing of these offenses or any one of them.

[emphasis added].

Two days later, when the jury asked the court to "explain how accomplice is related to all counts," the court again re-read the entire accomplice liability charge. Again some minor modifications were made from the first three charges. The third quoted paragraph of the initial charge was modified as follows:

Second, the State must show that this defendant solicited either Pablo McLaughlin and/or Miguel Serrano to commit these crimes or any one of them or did aid or agree or attempt to aid Pablo McLaughlin and/or Miguel Serrano in planning or committing these crimes.

[emphasis added].

Defendant argues that the instructions had the clear capacity to lead the jury to believe that even if defendant only aided in the planning or commission of some crimes, he would be liable for all crimes that the principals committed. Defendant says the repeated listing of the crimes in "and/or" fashion and the phrase "or any one of them" in parts of the instructions could have led the jury to find defendant guilty as an accomplice to all counts even if the elements of accomplice liability were met only as to one count.

We are not convinced. First, the jury did not convict defendant on all counts of the indictment. It acquitted him of purposeful murder and aggravated arson. Second, "[i]n reviewing instructions to the jury, a court must not isolate the language challenged but must examine the remark in the context of the entire charge." State v. DiFrisco, 137 N.J. 434, 491 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "A jury charge must adequately set forth the elements of an offense in a way that explains the law to the jury in an understandable manner." Ibid. "The test, therefore, is whether the charge in its entirety was ambiguous or misleading." State v. Hipplewith, 33 N.J. 300, 317 (1960).

Here, the court instructed the jury twice in its initial charge that "the accomplice status should be considered separately as to each charge." That instruction was repeated each time the accomplice liability charge was re-read to the jury. There was no danger, as argued by defendant, that upon finding defendant an accomplice to one crime, such as hindering, the jury would have believed that it was required to find defendant guilty as an accomplice to all crimes committed by Miguel or Pablo, including felony murder and robbery. We conclude that the isolated language cited by defendant did not render the charge in its entirety ambiguous or misleading such that it was "clearly capable of producing an unjust result". R. 2:10-2.

Defendant also contends the jury charge on accomplice liability was flawed as to the convictions for aggravated manslaughter and felony murder because it required the jury to find the defendant acted purposefully. Defendant says that one cannot have a purpose to commit aggravated manslaughter because that crime requires a reckless state of mind. Similarly, defendant argues that one does not become an accomplice to felony murder by acting with a purpose to commit that offense, but rather by acting with a purpose to commit a robbery, which then leads to a causally-related death.

The relevant portion of the charge concerning accomplice liability for the lesser-included crime of aggravated manslaughter stated:

If, however, you find the defendant not guilty of acting as an accomplice of Pablo McLaughlin or Miguel Serrano on the specific charge of murder in Count One, then you should consider whether he acted -- did act as an accomplice of Pablo McLaughlin and/or Michael [sic] Serrano but with the purpose of promoting or facilitating the commission of some lesser offense than the actual crime charged in the indictment, in this case aggravated manslaughter, which I have previously charged you on.

Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his own state of mind and not anyone else's.

Guided by these legal principles, if you have found [defendant] not guilty of the specific crime of murder charged in Count One, you should then consider whether he is guilty or not guilty as an accomplice on the lesser charge of aggravated manslaughter. I have previously described these elements to you.

In considering whether [defendant] is guilty or not guilty as an accomplice or on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent upon his own state of mind and no one else's.

. . . .

The elements that must be proven for the lesser-included offense of aggravated manslaughter are:

One, that Pablo McLaughlin and/or Miguel Serrano committed the crime of murder as alleged in the indictment or the lesser-included offense of aggravated manslaughter.

Two, that the defendant . . . solicited Pablo McLaughlin and/or Miguel Serrano to commit aggravated manslaughter and/or did aid or attempt or attempt to aid him in planning -- him or either of them in planning to commit aggravated manslaughter.

Three, that the defendant's purpose was to promote or facilitate the commission of aggravated manslaughter.

Four, that the defendant possessed the criminal state of mind that is required for the commission of aggravated manslaughter.

No specific charge was given to the jury regarding accomplice liability for felony murder. However, the general accomplice liability charge instructed the jurors that the State must prove that "defendant's purpose was to promote or facilitate the commission of the offenses" listed by the court, which included felony murder.

It is true that one cannot have a purpose to commit aggravated manslaughter, as the trial court instructed in the next-to-last paragraph quoted above, and that the felony murder charge here required only that death be caused during the commission of robbery, regardless of whether death was intended. See State v. Darby, 200 N.J. Super. 327, 331 (App. Div. 1984), certif. denied, 101 N.J. 226 (1985). Furthermore, defendant is correct that State v. Bridges, 254 N.J. Super. 541, 566 (App. Div. 1992), aff'd in part, rev'd in part on other grounds, 113 N.J. 447 (1993), instructs that one can be liable as an accomplice to a reckless crime if he purposely promotes or facilitates the principal's conduct in conscious disregard of the risk of a criminal result.

However, the elements of aggravated manslaughter and felony murder were correctly described in the jury charge. Although the accomplice liability portion of the charge could have been confusing regarding the state of mind required of defendant if he were deemed to be an accomplice, we conclude the confusion did not render the charge misleading as a whole. Moreover, if the jury was misled to think that defendant would have to intend the commission of aggravated manslaughter and felony murder rather than the acts resulting in those crimes, that misunderstanding would not have harmed defendant. Proof of intention to commit either of those crimes would be an additional burden on the State rather than a reduction of the State's burden. Defendant would not be prejudiced.

We conclude, therefore, that the accomplice liability charge for aggravated manslaughter and felony murder did not have the clear capacity to produce an unjust result. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997); State v. Jordan, 147 N.J. 409, 422 (1997). It was not plain error.

V

Finally, defendant argues that his conspiracy conviction should be reversed because the indictment, jury charge, and verdict sheet did not specify the crime that was the object of the conspiracy and referred to the non-existent crime of conspiracy to commit felony murder. This argument is moot because defendant's conspiracy conviction was merged into his conviction for felony murder, defendant received no separate sentence on the conspiracy charge, and we have affirmed his conviction for felony murder.

 
Affirmed.

See also United States v. Donley, supra, 878 F.2d at 738 (statements of victim about plan to move and separate from husband admissible to prove husband's motive to murder her); United States v. Sperling, 726 F.2d 69, 73-74 (2d Cir.) (out-of-court statements admissible under Hillmon doctrine not to show defendant's state of mind but to show his participation in crime where other admissible evidence was also presented to prove participation), cert. denied, 467 U.S. 1243, 104 S. Ct. 3516, 82 L. Ed. 2d 824 (1984); United States v. Hyles, 479 F.3d 958, 970-71 (8th Cir.) (statement of co-conspirator to witness not involved in crime that he intended to kill victim was admissible in trial of defendant), cert. denied, ___ U.S. ___, 128 S. Ct. 365, 169 L. Ed. 2d 143 (2007); United States v. Pheaster, 544 F.2d 353, 376-80 (9th Cir. 1976) (statements of victim that he intended to meet defendant admissible under Hillmon doctrine in prosecution for kidnapping and murder), cert. denied sub nom. Inciso v. United States, 429 U.S. 1099, 97 S. Ct. 1118, 51 L. Ed. 2d 546 (1977); People v. Griffin, 93 P.3d 344, 369-72 (Cal. 2004) (victim's statement to friend that she intended to confront her stepfather about sexual abuse was admissible in capital trial of defendant stepfather for her murder); State v. Hayward, 65 N.W. 63, 65 (Minn. 1895) (victim's statement to another that she had a business appointment with defendant admissible in his trial for her murder); State v. Clegg, supra, 31 P.3d at 414 (victim's statement to co-worker that her husband intended to take her to bank later was admissible to prove his participation in her murder); State v. Mortenson, 73 P. 562, 568-70 (Utah 1903) (statement of victim to wife that he intended to visit defendant to collect money admissible in defendant's prosecution for murder).

(continued)

(continued)

37

A-3679-06T4

September 8, 2009