STATE OF NEW JERSEY v. HAMEED S. BROOKS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3817-06T43817-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HAMEED S. BROOKS, a/k/a

MAMEED BROOKS and HADEEN BROOKS,

Defendant-Appellant.

___________________________________

 

Submitted February 9, 2009 - Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-02-0664.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a trial by jury, defendant Hameed S. Brooks was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). He now appeals those convictions on various grounds.

We affirm defendant's conviction of resisting arrest. However, we vacate the robbery conviction because of the trial court's failure to charge the jury with the related theft-crime of receiving stolen property, N.J.S.A. 2C:20-7, a third-degree offense. Consequently, we order a new trial so that a jury may consider finding defendant guilty of that lesser theft crime, one which is reasonably supported by his testimony and other proofs, as an alternative to robbery.

I.

This case arises out of a gunpoint purse-snatching in Camden on December 27, 2005. The victim, a young woman, was accosted at about 9:30 p.m. on her front steps. She described her assailant as a light-brown-skinned man, with a beard and mustache and wearing blue jeans and a green Army jacket with the hood up. According to the victim, the man pointed a gun at her and demanded that she hand him her purse. She complied, and he fled on foot. The purse contained the victim's diamond engagement ring and other valuables. She called 9-1-1.

About twenty minutes later, police encountered defendant on the street and concluded that he and his clothing matched the description of the robber. Defendant attempted to run from the police, but they caught up with him a few blocks away. After he was apprehended and frisked, the police found the victim's diamond ring on his person.

The police drove defendant to the victim, who positively identified him as her assailant. She also identified her stolen ring. A handgun was found by a third party on a nearby street, but it was damaged from being run over and had no usable fingerprints on it. The victim's purse and her second cell phone, which had been inside the purse, were never recovered.

Defendant, who testified at trial in his own behalf, contended that he had bought the ring earlier that night for ten dollars. He admitted that the ring was worth more than ten dollars and that he believed it was stolen.

The jury found defendant guilty of first-degree robbery and fourth-degree resisting arrest. The jury acquitted defendant, however, of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. The trial court sentenced defendant to a fifteen-year term on the robbery, and a concurrent eighteen months on the resisting arrest offense. The robbery sentence included an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant raises the following points on appeal:

POINT I

BECAUSE THE DEFENDANT HAD TESTIFIED THAT HE HAD COMMITTED THE CRIME OF RECEIVING STOLEN PROPERTY, RATHER THAN ROBBERY, THE COURT COMMITTED REVERSIBLE ERROR IN FAILING TO SUA SPONTE CHARGE THE JURY AS TO THAT LESSER OFFENSE. IN ADDITION, COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST SUCH A JURY INSTRUCTION AND IN FAILING TO EFFECTIVELY EMPLOY THAT TESTIMONY IN HIS SUMMATION

POINT II

BECAUSE THE SHOW-UP IDENTIFICATION OF DEFENDANT BY KEISHA YOUNG WAS UNNECESSARILY AND IMPERMISSIBLY SUGGESTIVE, BOTH THE OUT-OF-COURT AND LINKED IN-COURT IDENTIFICATIONS MADE BY HER SHOULD HAVE BEEN EXCLUDED. IN ADDITION, TRIAL COUNSEL WAS INE[F]FECTIVE IN FAILING TO REQUEST A WADE HEARING

A. THE IDENTIFICATIONS SHOULD HAVE BEEN

EXCLUDED

B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING

TO REQUEST A WADE HEARING

We now consider those points, principally defendant's contention that the jury should have been charged, sua sponte, with the lesser theft offense of the receipt of stolen property. Because we agree with that principal contention, the matter must be remanded for a new trial.

II.

It is well established that a related lesser offense must be charged to a criminal jury, even if it is not specifically requested by trial counsel, where that lesser offense is "clearly indicated" by the proofs. State v. Jenkins, 178 N.J. 347, 361 (2004); State v. Choice, 98 N.J. 295, 299 (1985). Although a trial court does not have the duty to "scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty," see State v. Brent, 137 N.J. 107, 118 (1994), the court is obligated to charge the jury, sua sponte, with a lesser crime "if the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361; see also State v. Thomas, 187 N.J. 119, 136 (2006).

The necessity of the court charging a lesser offense in appropriate circumstances is not only a right of the defendant, but also stems from the public aspects of criminal jury trials. "[W]here the facts on record would justify a conviction on a certain charge, the people of this State are entitled to have that charge rendered to the jury[.]" State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004).

On the other hand, "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e); see also State v. Cassady, 198 N.J. 165, 177 (2009) (applying the principles of N.J.S.A. 2C:1-8(e)).

The failure of defendant's trial counsel to request an appropriate jury charge on a lesser offense does not preclude relief on appeal. Nor is our review of such an omitted instruction bound by the customary limitations of the "plain error" rule. An "error in a jury instruction that is crucial to the jury's deliberations on the guilt of a criminal defendant is a poor candidate[] for rehabilitation under the plain error theory." State v. Burns, 192 N.J. 312, 341 (2007) (internal quotations and citation omitted).

We now apply these general precepts to the theft-related crimes at issue here.

"[T]heft, by definition, is a lesser-included offense of robbery." State v. Ingram, 196 N.J. 23, 39 (2008) (citations omitted); see also Cassady, supra, 198 N.J. at 177. As defined in our penal code, a robbery occurs where a person, "in the course of committing a theft," either (1) "[i]nflicts bodily injury or uses force upon another"; (2) "[t]hreatens another with or purposely puts him [or her] in fear of immediate bodily injury"; or (3) "[c]ommits or threatens immediately to commit any crime of the first of second degree." N.J.S.A. 2C:15-1(a).

In general, "[t]heft is an unlawful taking that may occur with or without force." State v. Talley, 94 N.J. 385, 393 (1983). "A person is guilty of theft if he violates any of the substantive sections of Chapter 20 of the [Penal] Code, N.J.S.A. 2C:20-1 to -22." Id. at 390.

Pursuant to N.J.S.A. 2C:20-2, our Legislature has consolidated all theft crimes under the umbrella of Chapter 20, including such diverse property-related offenses as motor vehicle theft, N.J.S.A. 2C:20-2.1; theft by unlawful taking, N.J.S.A. 2C:20-3; theft by deception, N.J.S.A. 2C:20-4; receipt of stolen property, N.J.S.A. 2C:20-7; theft of services, N.J.S.A. 2C:20-8; shoplifting, N.J.S.A. 2C:20-11; theft of library materials, N.J.S.A. 2C:20-12; and computer theft, N.J.S.A. 2C:20-25. By virtue of this consolidation, "a defendant charged with robbery is . . . on notice that any conduct denominated as theft is within the four corners of a robbery indictment." Talley, supra, 94 N.J. at 393.

In the present case, the jury instructions correctly explained the elements of robbery under N.J.S.A. 2C:15-1, and how a robbery becomes a first-degree offense when the defendant uses or threatens the immediate use of a deadly weapon. Defendant does not contest the propriety of the court giving the robbery instruction, which is reasonably supported by the victim's account of the events and her description of the perpetrator. Defendant contends, however, that the court should also have charged the jury with the elements of the receipt of stolen property as a lesser related theft offense. If this had been done, defendant maintains, the jury would have had the option of convicting him of a third-degree crime rather than being confined to the options of first or second-degree robbery or acquittal.

Because defendant's trial counsel did not request the court to charge the lesser offense of receiving stolen property, we must consider not only whether there is rational support for that charge, but whether the charge is "clearly indicated" by the proofs. We concur with defendant that such a charge was clearly indicated here.

Defendant was found in possession of the victim's engagement ring within a half hour after her purse was taken from her at gunpoint. The victim's identification of the robber, although admissible at trial, was subject to credibility impeachment. Neither her purse nor a handgun were found on defendant's person. His fingerprints were not on the handgun found in the vicinity by the police.

In his own sworn testimony at trial, defendant denied that he had taken anything from the victim or that he had possessed a gun that evening. He asserted that he had been in the neighborhood with his cousin and daughter to visit his grandmother. Defendant explained that he had purchased the ring that night from a seller at the corner of Sixth and Clinton Streets. He specifically admitted on direct examination that the ring was worth more than he paid for it, and that he "obviously . . . knew it was stolen."

The elements of receiving stolen property are defined in N.J.S.A. 2C:20-7, in pertinent part, as follows:

A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen.

See also State v. Hodde, 181 N.J. 375, 383 (2004) (applying the elements of N.J.S.A. 2C:20-7); State v. Cole, 204 N.J. Super. 618, 629 (App. Div. 1995) (same).

If, for the sake of argument, the jurors had accepted defendant's version of how he came into possession of the ring and had doubted the victim's identification of defendant as her robber, they would have had an ample rational basis to find defendant guilty of receiving stolen property instead of robbery. This is not a scenario as in Cassady, supra, in which the defendant's complaint about the trial court's failure to charge a lesser theft offense was deemed "absolutely ludicrous" and based upon "sheer speculation." 198 N.J. at 178 (rejecting a defendant's assertion that the court should have charged the jury in a robbery case with the lesser-included offense of simple theft, where the facts clearly showed that defendant had menacingly demanded money from a bank teller and then, after she refused, vaulted a glass partition into the other side of the counter and pulled cash out of the teller's drawer).

We find distinguishable State v. Smith, 136 N.J. 245 (1994), the main case cited by the prosecution in opposition to defendant's arguments. In Smith, the defendant was charged with armed robbery of a cab driver after allegedly stealing $120 from the driver at knifepoint. The defendant testified that he did not have a knife, had not taken any money from the cab driver, and had merely left the cab without paying his fare. Id. at 248. The trial court rejected the defendant's request for a jury instruction on theft of services, N.J.S.A. 2C:20-8, as a lesser included offense of robbery. Id. at 249. In sustaining that decision, the Supreme Court noted that the case concerned "two separate harms, not two versions of the means through which defendant brought about the same harm--the involuntary transfer of a single form of property." Ibid. In other words, if the jury found defendant was guilty of theft of services, the property taken, or the "harm," would be the cab fare. However, if the jury found defendant was guilty of armed robbery, the property taken would be the cab driver's money. Thus, the Court held that the crime of theft of services was not subsumed within the robbery charged in the indictment, and that the trial court was not obligated to issue a jury instruction on that alternative theory. Ibid.

Here, by contrast, the harm in question--the deprivation of the victim's diamond engagement ring--is the same, whether one adopts the State's theory of an armed robbery or defendant's claim that he bought the ring as stolen property. The defendant's theory is not incompatible with the harm alleged in the indictment. Because that theory is clearly indicated by defendant's sworn narrative and also has some other circumstantial support, the trial court was obligated to include that theory as an alternative in the jury charge. No such charge was issued.

Consequently, we vacate defendant's conviction of robbery and remand for a new trial, at which the jurors shall be instructed as to the elements of both theories of culpability.

III.

Defendant further contends that the victim's "show-up" identification of him while he was handcuffed and in the back of a police car was impermissibly suggestive and unreliable. We disagree.

The United States Supreme Court has established a two-step analysis to determine the admissibility of out-of-court identifications. See Manson v. Brathwaite, 432 U.S. 98, 110, 97 S. Ct. 2243, 2251, 53 L. Ed. 2d 140, 151 (1977); State v. Madison, 109 N.J. 223, 233 (1988). First, a reviewing court must determine "whether the identification procedure was impermissibly suggestive." State v. Romero, 191 N.J. 59, 77 (2007) (citation omitted). If the court determines that the procedure was impermissibly suggestive, it must also determine "whether the impermissibly suggestive procedure was nevertheless reliable" by considering the "totality of the circumstances" and "weighing the suggestive nature of the identification against the reliability of the identification." Ibid. "[R]eliability is the linchpin in determining the admissibility of identification testimony." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 151.

As to show-up identifications in particular, our Supreme Court has acknowledged the potential suggestiveness inherent in such procedures. See State v. Herrera, 187 N.J. 493, 504 (2006). However, "standing alone, a show[-]up is not so impermissibly suggestive to warrant proceeding to the second step" of the test of constitutionality. Id. at 504. Show-ups have been permitted because "they are likely to be accurate, taking place, as they do, before memory has faded and because they facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." Ibid. (internal quotations and editing marks omitted). Therefore, "[e]ach show[-]up setting must necessarily stand or fall on its own unique facts." Romero, supra, 191 N.J. at 77.

In State v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003), which was approvingly cited by our Supreme Court in Romero, supra, 191 N.J. at 78, we determined that the State witnesses' identification of the defendant seated and handcuffed in the back of the police car was suggestive, but that "such suggestive circumstances did not render the identification procedure per se improper and unconstitutional." Wilson, supra, 362 N.J. Super. at 327. More than that was required to tip the balance into a finding of unreliability. Ibid.

Here, nothing in the record suggests that the show-up procedure was impermissibly suggestive. Similar to Wilson, supra, the victim identified defendant while he was seated and handcuffed in the back of the police car. This did not render the show-up per se improper. Ibid. Without anything more to "tip the scale" towards impropriety, defendant's argument is unavailing.

Even if we were to find the show-up used here was impermissibly suggestive, the victim's identification of defendant was sufficiently reliable to be admitted into evidence. When determining whether a show-up procedure was nevertheless sufficiently reliable to warrant the admissibility of the identification by the victim, courts must consider the "totality of the circumstances" surrounding the identification procedure. Romero, supra, 191 N.J. at 77. The pertinent factors include "the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 51 L. Ed. 2d at 151.

Applying the factors listed in Manson here, we are satisfied that the victim's identification of defendant was sufficiently reliable to present to the jury. The victim testified that she got "a good look" at the man who robbed her because, at the time of the robbery, the lighting from the porch light was bright. The victim was also, assertedly, standing on the top step of the porch and the robber was standing on the second step, approximately two feet away from her.

Moreover, the victim described the robber as a "light-brown-skinned male" with a beard and a moustache, wearing a green Army fatigue hoodie coat with the hood over his head and blue jeans. Defendant himself admitted that at the time he was arrested, he had a beard and a moustache, and he was wearing a hooded green Army fatigue coat and blue jeans.

The victim stated that when she positively identified defendant out of court, she was "100% certain" he was the robber. She had identified defendant "right away." The time elapsed between the crime and the identification was only approximately twenty minutes.

In sum, we reject defendant's arguments that the victim's show-up identification of him was inadmissible.

IV.

We have fully considered the balance of defendant's arguments on appeal, and find that they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Defendant's conviction for resisting arrest is affirmed. His conviction for robbery is vacated, and a new trial is ordered, consistent with the guidance of this opinion.

 

As a result of the statutory consolidation of all theft crimes, the Supreme Court has recognized that, depending upon the circumstances, a trial judge may need to charge the jury with a lesser related theft crime that would not necessarily be a lesser included offense to robbery because of additional elements that may be required to prove the lesser offense. Smith, supra, 136 N.J. at 250-51; see also Talley, supra, 94 N.J. at 393. Therefore, we refer to the receipt of stolen property as a "lesser related offense" in this opinion rather than as a "lesser included offense."

We do not address, however, on this direct appeal, defendant's related argument that his trial attorney was constitutionally ineffective for failing to request an evidentiary hearing on the show-up before trial, pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). That argument about counsel's performance is best reserved for a future petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

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A-3817-06T4

June 22, 2009