STATE OF NEW JERSEY v. ANDRE BING-JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5120-07T45120-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE BING-JACKSON a/k/a DRE

a/k/a ANDRE BING,

Defendant-Appellant.

________________________________

 

Submitted December 8, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.

04-04-0212.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Cecelia Urban, Assistant Deputy

Public Defender, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor,

attorney for respondent (Dorothy Hersh, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andre Bing-Jackson was tried before a jury and convicted of first degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and second degree robbery, N.J.S.A. 2C:15-1(a)(1), as lesser included offenses of murder, N.J.S.A. 2C:11-3a(1), felony murder, N.J.S.A. 2C:11-3a(3), and first degree robbery, N.J.S.A. 2C:15-1. The court sentenced him to an aggregate term of twenty-five years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirm.

We gather the following facts from the evidence presented at trial.

I

The State charged defendant, Paris Mann, Samuel Perry, and Donald Mann, Jr. with brutally attacking, robbing, and killing a man named Thomas King. All of the co-defendants were minors at the time they committed these offenses. On the State's motion, the Family Part transferred their cases to the Criminal Part, where all three agreed to plead guilty to lesser charges, conditioned upon them testifying as witnesses for the State in the trial against defendant. The State's account of what transpired here is based primarily on the testimony of the three co-defendants and a woman named Kimberly Lovett.

On May 18, 2002, at approximately 8:00 p.m., the victim and Lovett were walking on Hobart Avenue in Trenton on their way to their neighborhood. According to Lovett, she dropped King off on the corner of Hobart and Olden Avenues because he wanted to stop for a drink before going home. As Lovett entered her house, she looked down the street and saw "what looked like a bunch of kids jumping around." She soon realized, however, that she was actually witnessing someone being assaulted. The assault occurred in front of 62 Hobart Avenue, approximately forty feet from where Lovett was standing.

From Lovett's vantage point, there were four assailants involved in the attack; three were near the victim's head and one was "towards where his feet were." Although she did not know the identity of the assailants, she described them as youths between the ages of fifteen and seventeen. At this point, Lovett began screaming at the attackers to stop; she also told her fiancé to call the police.

When the attack stopped, Lovett approached the victim, who was lying on the ground, and discovered it was Thomas King. She described him as unconscious and bleeding from his nose, mouth, and ears. King was transported to the hospital where he remained in a coma until he died on September 25, 2002. An autopsy concluded that his injuries were the result of severe head trauma and the medical examiner ruled his death a homicide.

The police investigation eventually focused on Perry, who ultimately admitted his involvement and identified Paris Mann and Donald Mann, Jr. as co-assailants. After their arrest, the Mann brothers and Perry named defendant as the fourth attacker, who Perry and Donald Mann, Jr. identified from a photographic array. Defendant was arrested thereafter.

Paris Mann testified that on the day of the attack he, Donald Mann, Jr., Perry, defendant, and two other youths were sitting on the front porch of 55 Hobart Avenue. As dark approached, defendant, who had been drinking, stated that he was going to beat up the next person to walk by. According to Paris Mann, defendant then threatened the others, saying that if they did not help him, he would beat them up.

At this point, King walked by where the defendant and his cohorts were gathered. Again, according to Paris Mann, defendant "directed" them to get off the porch; Paris grabbed King around the waist and "slammed him" to the ground. Defendant and Perry then began kicking King while Donald Mann, Jr. "went through his pockets." Paris Mann testified that the assault lasted from twenty to sixty seconds. After the assault, defendant allegedly said something akin to: "I just killed the mother-fucker. I don't care if I go to jail, I've been in jail before."

Donald Mann, Jr.'s testimony generally corroborated his brother's account of events. In addition, Donald claimed that while he was inside the house, he heard defendant instigate the others by calling them "pussies" and questioning their willingness to fight. Although he denied directly participating in the attack, Donald Mann, Jr. testified that, at defendant's direction, he went through King's pockets while the latter laid face-down on the ground.

Perry, likewise, corroborated the other co-defendants' version of events. He stated that defendant encouraged them to "jump[]" King to prove that they were "tough enough" and that defendant was "amping [them] up." He admitted to kicking King in his "body area" and said that defendant and Paris Mann also assaulted King. Consistent with Donald's testimony, Perry said that Donald Mann, Jr. just went through the victim's pockets. Perry acknowledged, however, that he lied to the police in his initial statement and affidavit. He did so because defendant scared him and told him to lie.

Against these facts, defendant now raises the following arguments on appeal.

POINT I

BECAUSE THE JURY WAS NOT INSTRUCTED TO CONSIDER WHETHER JACKSON, AS AN ACCOMPLICE, INTENDED TO COMMIT A LESSER OFFENSE THAN HIS CO[-]DEFENDANTS, HIS CONVICTION OF FIRST[] DEGREE MANSLAUGHTER MUST BE VACATED. (Not Raised Below)

POINT II

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS THAT THEY COULD NOT USE THE GUILTY PLEAS OF THE CO[-]DEFENDANTS AS EVIDENCE OF JACKSON'S GUILT, DENIED JACKSON A FAIR TRIAL. (Not Raised Below)

POINT III

THE 25-YEAR PRISON TERM, 85% WITHOUT PAROLE, IMPOSED IN THIS CASE WAS EXCESSIVE.

We reject these arguments and affirm.

In argument Point I, defendant contends that the trial court incorrectly instructed the jury with respect to the State's theory of culpability known as accomplice liability. Specifically, defendant argues that the trial court should have based its charge consistent with the Model Criminal Charge Two on accomplice liability, which instructs the jury as to lesser included offenses, as opposed to Model Charge One, which applies when no lesser-included offenses are charged. Charge Two differs from Charge One in that it states, in part:

Now this responsibility as an accomplice may be equal and the same as he/she who actually committed the crime(s) or there may be responsibility in a different degree depending on the circumstances as you may find them to be. The Court will further explain this distinction in a moment.

. . . .

Now, as I have previously indicated, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice of X with full and equal responsibility for the specific crime(s) charged. If you find the defendant guilty of the specific charge(s), then you need not consider any lesser charge(s).

If, however, you find the defendant not guilty of acting as an accomplice of X on the specific crime(s) charged, then you should consider whether the defendant did act as an accomplice of X but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment.

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/her own state of mind and not on anyone else's.

Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of_________________________. I will now explain the elements of that offense to you. (Here the court may tell the jury what view of the facts could lead to this conclusion).4

In considering whether the defendant is guilty or not guilty as an accomplice 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 on his/her own state of mind and no one else's.

Therefore, in order to find the defendant guilty of the lesser included offense(s) of _________________, the State must prove beyond a reasonable doubt:

1. That X committed the crime(s) of _____________________, as alleged in the indictment, or the lesser included offense of____________________________.

2. That this defendant solicited X to commit {lesser included offense} and/or did aid or agree or attempt to aid him/her in planning to commit {lesser included offense}.

3. That this defendant's purpose was to promote or facilitate the commission of {lesser included offense}.

4. That this defendant possessed the criminal state of mind that is required for the commission of {lesser included offense}.

If you find that the State has proven each one of these elements beyond a reasonable doubt, then you must find the defendant guilty. If on the other hand you find that the State has failed to prove one or more of these elements beyond a reasonable doubt, then you must find the defendant not guilty. As I have previously indicated, your verdict(s) must be unanimous. All twelve jurors must agree as to guilty or not guilty.

________

4. In instructing the jury as to lesser-included offense(s), the court should tell [the] jury what view of the facts could lead to this conclusion. See State v. Bielkiewicz, 267 N.J. Super. 520, 533 (App. Div. 1993).

[Model Jury Charge (Criminal), "Liability for Another's Conduct, N.J.S.A. 2C:2-6, Accomplice, Charge # Two" (1995).]

By contrast, the court's instructions to the jury were based on Charge One, which did not explain the option of finding defendant guilty of lesser charges than his co-defendants. According to defendant, the court should have instructed the jury that although some of his co-defendants pled guilty to aggravated manslaughter, he may only have had the state of mind to commit reckless manslaughter.

In rebuttal, the State argues that the court's instruction as a whole made it "crystal clear . . . that defendant could be found guilty of any of the charged offenses regardless of the offenses to which his accomplices pled guilty if the requisite defined state of mind was found beyond a reasonable doubt."

Directly before delivering Charge One, the trial court gave the jury the following instructions:

Another element that the state must prove beyond a reasonable doubt is that the defendant acted under circumstances . . . manifesting extreme indifference to human life. The phrase ["]under circumstances manifesting extreme indifference to human life["] does not focus on defendant's state of mind, but rather on the circumstance under which you find he acted.

If in light of all the evidence you find that the defendant's conduct resulted in a probability as opposed to a mere possibility of death, then you may find that he acted under circumstances manifesting extreme indifference to human life. On the other hand, if you find that his conduct resulted in only a possibility of death, then you must acquit him of aggravated manslaughter and consider the offense of reckless manslaughter, which I will explain to you shortly.

. . . .

If after consideration of all the evidence you are convinced beyond a reasonable doubt that the defendant recklessly caused Thomas King's death under circumstances manifesting extreme indifference to human life, then your verdict must be guilty of aggravated manslaughter. If, however, after consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant recklessly caused Thomas King's death under circumstances manifesting extreme indifference to human life, you must find the defendant not guilty of aggravated manslaughter, and go on to consider whether defendant should be convicted of reckless manslaughter.

[(Emphasis added).]

The court thereafter explained the different elements of reckless manslaughter and emphasized what the State was required to prove in order to convict defendant of that lesser included offense.

Because defendant did not object to the jury charge at the trial level as mandated by Rule 1:7-2, we review this issue under the plain error standard, which requires us to disregard "[a]ny error or omission . . . unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; State v. Adams 194 N.J. 186, 207 (2008).

In going about this task, we recognize that correct jury charges are the essence of a fair trial. Therefore, incorrect jury instructions in criminal cases are ordinarily presumed to constitute plain error and are almost invariably regarded as "poor candidates for rehabilitation under the harmless error philosophy." State v. Vick, 117 N.J. 288, 289 (1989) (citations omitted). That being said, "[t]he charge to the jury must be read as a whole in determining whether there was any error." Adams, supra, 194 N.J. at 207.

Here, we are satisfied that the court's instructions did not deprive defendant of his right to a fair trial. The trial court, on two occasions, instructed the jury that under accomplice liability it was required to find that defendant and his cohorts shared the intent to commit the crime and that, at least indirectly, he participated in its commission. These instructions correctly emphasized the requisite mental state. State v. Whitaker, 200 N.J. 444, 458 (2009).

As to argument Point II, although it would have been preferable for the court to have instructed the jury that the fact that the co-defendants had pled guilty should play no role in determining defendant's guilt, the absence of such a charge is inconsequential. First, defense counsel did not request that the court instruct the jury in this manner. Second, and most importantly, defense counsel thoroughly cross-examined the co-defendants and, at least as to one co-defendant, aggressively pressed the point that the plea agreement with the State did not necessarily require him to testify truthfully about defendant's alleged participation in this horrific crime. Finally, defense counsel drove these points home in his closing argument to the jury. In this light, we discern no basis to disturb the conviction. Adams, supra, 194 N.J. at 208.

Defendant's final argument in Point III that attacks his sentence lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The sentence imposed by the court was well within its statutory authority and did not constitute an abuse of discretion. State v. Cassady, 198 N.J. 165, 180-81 (2009).

Affirmed.

 

Paris Mann pled guilty to aggravated manslaughter and first degree robbery; Samuel Perry pled guilty to aggravated manslaughter, and Donald Mann, Jr. pled guilty to second degree robbery.

(continued)

(continued)

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A-5120-07T4

March 17, 2010