STATE OF NEW JERSEY v. JERMAINE JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4726-02T44726-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE JACKSON,

Defendant-Appellant.

____________________________

 

Submitted March 4, 2009 - Decided

Before Judges Fisher, C.L. Miniman and King.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-02-0114.

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

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was convicted of attempted murder in the first degree and other weapons charges after the jury found him guilty of attacking a fellow drug dealer in an attempt to collect a money debt. Defendant bases his appeal on inadequate jury instructions and erroneous sentencing by the judge. We affirm defendant's conviction because we find no error. We remand for resentencing.

I

Defendant Jermaine Jackson and co-defendants Todd Clanton and Randy Johnson were charged by Passaic County Indictment Number 01-02-0114 with first-degree attempted murder, N.J.S.A. 2C:11-3 (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Three); and fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d).

In accordance with a plea agreement, co-defendant Johnson pled guilty to attempted murder before trial and received a fifteen-year sentence, to which the No Early Release Act, N.J.S.A. 2C:43-7.2(d)(1), was applied. Defendant and co-defendant Clanton went to trial jointly before a jury between the dates of May 6 and May 12, 2002. Both were found guilty of attempted murder and the weapons charges.

Defendant and co-defendant Clanton were sentenced on March 14, 2003. Clanton received an aggregate sixteen-year sentence with the 85% parole disqualifier pursuant to the No Early Release Act. Defendant was sentenced to an extended term of thirty-six years with a mandatory minimum of seventeen years, and ordered to pay additional nominal fines.

Co-defendant Clanton appealed, and we affirmed the conviction in November 2004. This court entertained a second appeal from Clanton after a denial for post-conviction relief, and on August 4, 2008, affirmed the denial of that petition.

Defendant filed a notice of appeal on May 19, 2003 which was dismissed for lack of prosecution in 2004. The appeal was reinstated on January 10, 2008. This current appeal relates only to the conviction of appellant Jermaine Jackson.

II

Maurice Giles (Giles), the victim of the attempted murder, sold crack cocaine together with defendant and co-defendants. Giles would receive bags of crack from co-defendant Johnson or Clanton, which he would sell for ten dollars each. Giles kept twenty-five dollars for every one-hundred dollars worth he sold. Defendant's primary role was to collect the money from Giles and other sellers.

In February 1999, Giles was arrested for cocaine possession and placed on probation. He was in the county jail from February 2000 through May 19, 2000 for a violation of probation. Prior to incarceration, defendant and the co-defendants accused Giles of owing money. This led to multiple encounters where threats were made. For example, defendant approached Giles and stated sternly that he "better get him his f------ money . . . " and co-defendant Clanton "grabbed [Giles's] face and said I want my f------ money, I'm not f------ playing with you."

Giles testified that on the same day he was released from jail, May 19, 2000, he encountered co-defendant Johnson who demanded money, stating "you better give me my f------ money, man, I'm not playing with you." Giles did not have the money to pay co-defendant Johnson.

Three days later, on May 22, 2000, Giles was walking along Pearl Street in Paterson at around 10:25 p.m. with his cousin, Derrick Myles, and friend, Kareem Boyd, after the three had been drinking and smoking marijuana. All of a sudden, Myles began running; at first, believing Myles to be joking, Giles followed.

As Giles ran, he then heard voices approaching saying "get'em, f---'em up, let's f---'em up yeah." During trial, Giles testified that he recognized the voices as those of defendant and co-defendants Clanton and Johnson. Shortly after recognizing the voices, Giles was tackled on the street and beaten severely about the face and head. Although Giles could not directly see his attackers as he tried to cover his head and body during the beating, he again recognized co-defendant Clanton's voice stating "f--- that, let's shoot him." Giles testified that eventually the beating slowed, and just as he lifted his head, he saw a shiny object move rapidly towards his face; that was his last memory until he woke up in the hospital seven days later.

Giles underwent head surgery that reduced brain swelling and likely saved his life, followed by intense rehabilitation therapy to regain his ability to speak and walk; he still suffers from numbness in his left arm, short-term memory loss and frequent headaches.

Testimony also came from Derrick Myles and Kareem Boyd. According to Boyd, several men jumped out of a blue station wagon, chased Giles, grabbed him by the neck and pulled him to the ground. He said that he recognized co-defendants Johnson and Clanton, as he had seen them around the neighborhood. In a written statement taken by the police, Boyd also identified defendant Jermaine Jackson as one of the individuals who assaulted Giles; this identification was confirmed during trial by Boyd reiterating his description of defendant and confirming his identity in a photograph. Boyd was uncertain whether defendant carried a weapon, but Boyd did observe that co-defendants carried "long objects, like pipes or sticks," and that all three participated in the beating. The record shows that Boyd's story unfolded after an initial hesitance to speak with the police, justified by Boyd's fear "that these guys [would] come find out and kill me and my friend Derrick."

Derrick Myles testified that he saw three to five men, including co-defendants, leave a car carrying sticks and pipes. He clarified that co-defendant Johnson had a metal pipe, Clanton had a wooden bat, and he believed defendant carried a stick. Although there is confusion in the record as to who carried what weapon, Myles persisted that all three were armed. He identified the three individuals involved in the assault as defendant and both co-defendants. On June 7, 2000, after co-defendants Johnson and Clanton were arrested, official statements were taken, and identifications were made by Boyd and Myles, defendant was arrested.

III

POINT I - INADEQUATE JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

POINT II - A REMAND FOR RESENTENCING IS REQUIRED UNDER STATE V. PIERCE, 188 N.J. 155 (2006).

POINT III - BECAUSE OF THE DISPARITY OF THE SENTENCE IMPOSED ON DEFENDANT AND THOSE IMPOSED ON CO-DEFENDANTS, DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

IV

For the first time in this case, defendant now asserts that the jury was inadequately instructed on accomplice liability, thus depriving him of due process and a fair trial under the United States and New Jersey Constitutions. Specifically, defendant asserts that although the judge properly set out the law, he failed to sufficiently explain it and relate specific facts for a more "tailored" approach.

Proper jury instructions are essential to a fair trial. State v. Collier, 90 N.J. 117, 122 (1982) (citing State v. Green, 86 N.J. 281, 287 (1981)). The standard for reviewing the "soundness" of a jury instruction is "how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole." State v. Savage, 172 N.J. 374, 387 (2002) (citing Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997) (citation omitted)).

When a prosecution's theory is based on accomplice liability, the jury must be instructed according to that law. State v. Weeks, 107 N.J. 396, 410 (1987). An accomplice, by definition, is a person who "acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." State v. White, 98 N.J. 122, 129 (1984). Thus, a jury must be informed that for a defendant to be guilty as an accomplice, he must have "shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act." State v. Fair, 45 N.J. 77, 95 (1965).

Moreover, when lesser included offenses are submitted to a jury, the court is obliged to "carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense." Weeks, supra, 107 N.J. at 410. Although committing the same criminal act, individuals may do so with different states of mind, which could change the degree of the crime charged to each individual. Fair, supra, 45 N.J. at 95; see also State v. Madden, 61 N.J. 377, 391 (1972) (finding that when more than one individual engage jointly in a deadly assault that results in death, the degree of the offense attributable to each offender may differ according to the offender's acts and purpose; however, attributable intent changes as an offender becomes aware of the purpose of others to kill or do serious bodily harm).

The courts in this State have also noted the salutary practice of tailoring a jury charge to the specific facts in the case. This court, in State v. Cook, 300 N.J. Super. 476, 487-88 (App. Div. 1996), found that the jury should have been advised by the court that the defendant could have been found guilty as an accomplice to the lesser-included offenses of aggravated manslaughter or manslaughter even if the co-defendant was found to have committed purposeful murder. The jury could have found that each possessed a different state of mind when committing his actions. This court noted that "the jury needed a detailed explanation of accomplice liability tied into the facts." Id. at 487.

In State v. Savage, supra, the Court found that although the law was adequately explained in the jury instructions, the facts were not at all "tethered" to the law. 172 N.J. at 394. The Court noted that in general, there is a presumption that the jury understands and follows the instructions when the trial court instructs the jury simply "in accordance with relevant legal principles." Ibid. See also State v. Burris, 145 N.J. 509, 531 (1996) (citing State v. Manley, 54 N.J. 259, 270 (1969)). However, this presumption could not be applied in Savage because the jury posed this problem to the court during deliberation:

Because of the wording on the counts it seems we have to vote guilty because of the "law." Some of us don't believe the defendant was the instigator or planned the murder, but because of the wording we cannot express these feelings.

[Savage, supra, 172 N.J. at 394.]

In response to the jury's statement, the judge simply stated that the court was in charge of the law and that the jury had to apply the law. Ibid. Thus, the Court found from reviewing the jury's remarks that there was a possibility that the jury did not understand the accomplice charge or the fact that the defendants could be found guilty of different offenses based on differing states of mind, and held that the trial court's failure to again explain the accomplice charge in the context of the specific facts constituted plain error. Id. at 394-95.

In State v. Walton, 368 N.J. Super. 298, 308 (App. Div. 2004), the trial court had instructed the jury according to the model jury charge for first and second degree robbery, and accomplice liability. The court, however, failed to blend the facts with the law during the instruction. Ibid. On appeal, this court found that "reversible error was committed because the charge was not tied to the facts of the case and because the accomplice liability charge was given completely separately from the lesser-included offense charge." Ibid.

When there is no objection to jury instructions at trial, they must be reviewed under the plain error standard. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997) (stating that a "reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result").

In this case, there is no question that the judge correctly instructed the jury on accomplice liability and the lesser-included offenses; however, defendant questions the extent to which the court tied the legal instruction to the facts. We find defendant's assertions unpersuasive.

In his basic introduction to the law, the judge began to explain the concept of lesser-included offenses as to the charge of attempted murder, as well as how this concept was interwoven with accomplice liability. The judge made clear that accomplice liability would be discussed later in the instruction, but that he "want[ed] [to] give . . . some kind of overview." He provided an example of accomplices who committed an armed bank robbery together to show how the intent of each robber could be the same or could differ. The judge went through permutations of the possible activities committed by each robber, the possible mental states that each could have, and how each state of mind would affect the level of culpability of each offender. The judge stated "there are different levels of culpability that are possible, even if people are acting together in the same enterprise, and I'll go through the formal legal definition of legal accountability for the conduct of another by reason of being an accomplice, when we get to the end of the charge of attempted murder."

As promised, the judge defined and discussed accomplice liability, lesser-included offenses, and all relating legal concepts at a later point during the jury charge. He even re-emphasized the armed robber analogy and appropriately reclarified its position in the analysis.

We do not find any plain error. The judge meticulously instructed the jury on the law and added an armed robbery analogy to clarify that each defendant could be found guilty of different offenses as accomplices depending on his respective state of mind. The principal case, Savage, does not compel that the facts of a particular case be discussed. A reasonable reading of Savage strongly suggests that the judge tie the case facts into the jury instruction but failure to do so does not dispositively constitute plain error.

In Savage, the Court specifically noted the presumption of validity which attached to the judge's jury instruction. The jury instruction was there in error only due to the way the trial judge handled the jury's mid-deliberation question that hinted at a misunderstanding of accomplice liability. In our case, the only question asked by the jury was:

Can we see/hear the testimony of . . . Kareem Boyd and Derrick Myles . . . regarding their comments on their statements in Detective Bureau regarding Todd Clanton possessing pipes, bat, etcetera, [defendant] possessing pipes, bat, etcetera, and when exiting the car or any other time.

In response to the jury's inquiry, the court provided a read-back of the requested testimony. After objection by the counsel of defendant and co-defendant Clanton, the court permitted the additional read-back of testimony surrounding that which was already read. Less than ten minutes after this second read-back, the jury reached its verdict. There was never a question directed by the jury at the jury charge.

The demand by the jury for an additional read-back of testimony regarding the weapons carried by the offenders is in no sense equivalent to the jury's inquiry in Savage, which clearly showed a potential for a misunderstanding of accomplice liability according to the actors' varied states of mind. Unlike Savage, the jury's question only asked for a read-back of testimony about weapons; it did not express confusion in understanding the law or a sense of limitation in its application. Moreover, in our case, the convictions on weapons charges were relevant, logically connecting the inquiry to weapons testimony.

Also comparing Walton to the present case, there is a clear distinction. The jury charge in Walton was found inadequate not only because the judge did not tie in the facts, but also "because the accomplice liability charge was given completely separately from the lesser-included offense charge." Walton, supra, 368 N.J. Super. at 308. The judge in the case before us did not commit such an oversight. The law was explained thoroughly and timely and was well-demonstrated by the armed robbery analogy. And, of course, the absence of any objection strongly suggests that competent trial counsel perceived no harm from the jury charge as given.

V

Defendant next argues that the matter should be remanded for re-sentencing, as the court did not consider the full sentencing range under State v. Pierce, 188 N.J. 155 (2006). Defendant accurately asserts that the judge did not expressly mention the minimum possible sentence and urges that the judge should have considered and articulated a range from the bottom of the ordinary range through the top of the extended-term range.

Pierce represents the Court's relatively recent endeavor to update and clarify the analysis surrounding extended-term sentencing. A sentencing court considering an enhanced-term sentence under N.J.S.A. 2C:44-3(a) must first review a defendant's criminal record of convictions to determine whether the defendant is statutorily eligible. Pierce, supra, 188 N.J. at 168. If a defendant is eligible, the top of the sentencing range becomes the top of the enhanced range. Ibid. Once eligibility is determined, the court must assess all relevant aggravating and mitigating factors, including the "deterrent need to protect the public." Ibid.

The Court in Pierce then stated that "the range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum extended-term range . . . Where, within that range of sentences, the court chooses to sentence a defendant remains in the sound judgment of the court." Id. at 169. The Court also noted that on appellate review, an abuse of discretion standard applies to the trial court's explanation for its sentencing within the range. Id. at 169-70.

During sentencing, the judge here properly considered defendant's criminal history, aggravating factors, the absence of mitigating factors and all relevant elements to be considered for a persistent offender under N.J.S.A. 2C:44-3(a) in determining that defendant was eligible for an extended sentence term. Defendant's appeal does not dispute this obvious fact.

However, when determining defendant's actual sentence, the judge did not expressly state the ordinary minimum sentence prescribed for the crime. Rather, the judge stated the applicable maximum sentence, which was life in prison with twenty-five years of parole ineligibility. The judge ultimately decided "to set a significantly lower top number because [he] recognize[d] that . . . this is a substantial sentence." After finding three aggravating factors and no mitigating factors, the judge imposed a sentence of thirty-six years of incarceration, with seventeen years of parole ineligibility (85% of the maximum ordinary term), rather than the "considerably higher" sentence that he determined could have been entertained in these circumstances.

Although Pierce elaborates on the expanded sentencing window created when determining the applicability of extended sentencing, it does not expressly state that the judge need orally convey the ordinary minimum to defendant during sentencing. Defendant asserts that the judge "considered the available sentencing range to be limited to the extended-term range." This assertion is not supported by any evidence in the record, except for the absence of the judge stating the ordinary minimum sentence. However, with abundant caution we remand for resentencing with appropriate attention to the ordinary minimum sentence by the judge and the instructions of Pierce.

We do not reach the claim of disparate or excessive sentence in view of the remand.

The conviction is affirmed; we remand for resentencing.

(continued)

(continued)

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A-4726-02T4

April 1, 2009