STATE OF NEW JERSEY v. MICHAEL DERRICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4648-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL DERRICK,

Defendant-Appellant.

______________________________

May 24, 2011

 

Submitted December 8, 2010 - Decided

 

Before Judges Gilroy and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-01-00105.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Uniman, Designated Counsel, on the brief).

 

BruceJ. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

A Middlesex County Grand Jury charged defendant Michael Derrick and co-defendant Ebonee Williams with second-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree theft (shoplifting), N.J.S.A. 2C:20-11b (count two); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count three). Prior to trial, the State amended count three to charge conspiracy to commit third-degree shoplifting, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-11b. A jury found defendant guilty on all three counts.1

On December 7, 2007, the trial court sentenced defendant on count one to a seven-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year term of parole supervision upon release. The court merged the convictions on counts two and three with the conviction on count one, and imposed all appropriate fines and penalties.2

On appeal, defendant argues:

POINT I.

 

THE COURT ERRED IN ITS JURY CHARGE FOR SECOND-DEGREE ROBBERY IN

 

A. FAILING TO INCLUDE INSTRUCTION AND CASE-SPECIFIC EXAMPLE THAT RECKLESSNESS DOES NOT MEET THRESHOLD FOR INTENTIONAL OR PURPOSEFUL BEHAVIOR FOR SECOND-DEGREE ROBBERY (NOT RAISED BELOW).

 

B. FAILING TO INCLUDE INSTRUCTION ON SELF-DEFENSE NON-DEADLY FORCE (NOT RAISED BELOW).

 

POINT II.

 

THE COURT ERRED IN ITS ACCOMPLICE- LIABILITY CHARGE AS IT FAILED TO EXPLAIN HOW DEFENDANT COULD BE GUILTY OF THE THEFT OR CONSPIRACY OF THEFT YET NOT BE AN ACCOMPLICE TO THE ROBBERY AND FAILED TO PUT THE CHARGE INTO THE CONTEXT OF THE FACTS (NOT RAISED BELOW).

 

POINT III.

 

BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE RETAIL VALUE OF THE MERCHANDISE TAKEN WAS GREATER THAN 500 DOLLARS, THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A DIRECTED VERDICT AS TO THIRD-DEGREE THEFT.

 

POINT IV.

 

BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE RETAIL VALUE OF THE MERCHANDISE TAKEN WAS GREATER THAN 500 DOLLARS, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT SHOULD BE GRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE.

 

POINT V.

 

THE STILL PHOTOS ADMITTED TO ESTABLISH FORCE OR THREAT OF FORCE SHOULD NOT HAVE BEEN ADMITTED BECAUSE THEIR PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE, CONFUSION, AND MISLEADING THE JURY.

 

POINT VI.

 

THE GRANTING OF THE STATE'S REQUEST FOR A FLIGHT CHARGE AS EVIDENCE OF DEFENDANT'S GUILT AND THE WORDING OF THE FLIGHT CHARGE PREJUDICED THE DEFENDANT AND DENIED HIS CONSTITITONAL RIGHT TO A FAIR TRIAL.

 

POINT VII.

 

DEFENDANT'S SENTENCE WAS EXCESSIVE.

 

We affirm and remand for further proceedings consistent with this opinion.

I.

On October 7, 2006, at about 6:09 p.m., defendant and co-defendant (collectively, the perpetrators) entered a Target department store in South Plainfield with the intent to shoplift. The store's security guard, Joseph Williams, observed the perpetrators enter and move throughout the store through the store's video surveillance system in the camera video room. In the span of about four minutes, Williams saw the perpetrators enter the baby formula aisle where they placed several cans of powder baby formula into a shopping cart. The perpetrators took Similac Advanced (blue lidded) 25-ounce cans; and Similac Isomil (red lidded), 25-ounce and 12.9-ounce cans, with a retail value per can of $23.69, $24.99, and $13.79, respectively. Although the store's surveillance cameras were not directed to that aisle, Williams observed the two enter the aisle with an empty cart and leave the aisle with the cart filled with merchandise. Williams next observed the perpetrators walk to another aisle and retrieve three packages of Huggies baby diapers and place them on top of the baby formula in the shopping cart. The retail value of each baby diaper package was $9.54. The perpetrators then proceeded toward the exit at the front of the store. Williams left the camera room and walked toward the exit to intercept the perpetrators before they could leave the store.

Williams stood near the exit where he observed the perpetrators walk down the store's main aisle toward the exit, with defendant pushing the filled shopping cart. As they approached, Williams entered the vestibule, standing between the perpetrators and the exit. After failing to pay for the merchandise in the shopping cart, defendant pushed the cart through the first set of exit doors into the vestibule with co-defendant following him approximately ten to fifteen feet behind. When defendant entered the vestibule, Williams approached defendant, identified himself as the store security officer, and grabbed defendant from behind. Defendant shoved Williams aside and proceeded to exit through the second set of doors. Williams again attempted to stop defendant from exiting the store with the unpaid merchandise, but backed away after seeing defendant clutch his hand in a fist. Co-defendant then ran into the vestibule, scratched Williams' face, and poked him in one of his eyes, causing his contact lens to dislodge. Co-defendant then grabbed the cart and pushed it into the parking lot, passing Williams. Defendant followed her in flight. Pursuant to store policy, Williams stopped pursuit of the perpetrators and instead walked outside to identify their vehicle. As Williams continued into the parking lot toward the parked cars, defendant turned around and "doubled back" toward Williams. Williams halted, believing defendant might strike him.

Williams then walked parallel to the perpetrators, providing a barrier of parked cars between them and him. Williams then moved to another location where he could observe co-defendant place about five large red cans of baby formula from the shopping cart into the car. He also saw defendant place more cans of formula into the car, but was unsure as to how many.

While on the phone with the police, having observed the perpetrators flee in their car, Williams gave the police a description of the car and its direction. After the perpetrators left the parking lot, Williams retrieved the merchandise the perpetrators failed to transfer from the cart to the car. Williams first photographed the cart as it was abandoned by the perpetrators, and then photographed the individual items of merchandise. Williams also transferred the store's video surveillance of that day's events onto a compact disc for storage.3

According to Williams, the perpetrators left the following items in the shopping cart: five small red cans of formula; one large red can of formula; twelve large blue cans of formula; and one package of baby diapers. The retail value of the merchandise was $387.76: $284.28 for twelve blue cans; $93.94 for five small red cans and one large red can; and $9.54 for one package of baby diapers.

Initially, Williams believed that the retail value of the merchandise that the perpetrators had placed into their car was $144.03, bringing the total value of the merchandise either left in the shopping car or removed from the store to $531.79. However, after reviewing the video surveillance tape, showing significantly more formula in the shopping cart than first thought, Williams recalled that the perpetrators were already in the process of removing the cans of formula when he located them in the parking lot. Thus, Williams concluded that an additional six large blue cans and six large red cans of baby formula had also been taken, bringing the total retail value of all the merchandise to $698.92.4

II.

Defendant did not raise the arguments presented in Points I and II of his brief during trial. The failure to challenge the court's instructions to the jury at trial constitutes a waiver to object to those instructions on appeal. R. 1:7-2; see State v. Torres, 183 N.J. 554, 564 (2005). Accordingly, we will reverse on the basis of unchallenged jury instruction error only if the error was "clearly capable of producing an unjust result." R. 2:10-2.

Proper jury instructions "are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instructions on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. Because a defendant should be tried with correct jury instructions, "an erroneous charge will rarely stand on the ground that the error was harmless." State v. Barden, 195 N.J. 375, 394 (2008). Nevertheless, "a defendant is not entitled to have the jury instructed in his [or her] own words." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff d, 158 N.J. 149 (1999).

After reviewing the entire charge, we conclude that the jury instructions were free of any error, much less plain error. The charge was neither ambiguous nor misleading, and properly informed the jury of the appropriate principles of law.

In Point IV of his brief, defendant argues that the verdict was against the weight of the evidence, contending that there was insufficient evidence for the jury to find he had removed more than $500 in merchandise from the store. Defendant asserts that he is entitled to a new trial because the evidence did not accurately reflect what had been removed from the store, and thus, the conviction constitutes a manifest denial of justice.

Because defendant failed to file a motion for a new trial in the Law Division, his argument is barred on appeal. R. 2:10-1; See State v. McNair, 60 N.J. 8, 9 (1972). Additionally, our review of the record discloses that defendant's guilt was established beyond a reasonable doubt. Although when viewed separately--the testimony, videotape, and the photographs--may not independently support the element that the value of goods exceeded $500 for a third-degree crime, when considered collectively, there was ample evidence from which a jury could conclude that more than $500 of merchandise had been removed from the store.

In Point VI of his brief, defendant argues that the trial court erroneously provided the jury with a flight charge permitting the jury to infer his guilt by his departure from the store premises. Alternatively, defendant contends that even if the flight charge was proper, the manner in which the court provided the charge to the jury was inappropriate because the court did not instruct the jury on alternative reason for his actions. We disagree.

Evidence of flight by an accused is generally admissible as evidence of consciousness of guilt and is "therefore regarded as probative of guilt." State v. Mann, 132 N.J.410, 418 (1993). Flight and departure from a crime scene must be carefully distinguished because mere departure is not probative on the issue of guilt. Id.at 418-19. Departure becomes flight when there are "circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." State v. Sullivan, 43 N.J.209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966).

When a court gives a flight instruction, the court must tell the jury which inferences are permissible. Mann, supra, 132 N.J.at 420. "An adequate jury instruction would require the jury first to find that there was a departure, and then to find a motive for the departure, such as attempt to avoid arrest or prosecution, that would turn the departure into flight." Id.at 421. If the defendant offers an explanation for the departure, the trial judge must "instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Ibid.

The trial court properly instructed the jury on the substantive offenses and on flight as evidence of consciousness of guilt. The court instructed the jury that defendant asserted his actions were indicative of departure from the store and not flight. Further, the court instructed the jury that it must first find departure, then it may subscribe motive to the departure. And, the court told the jury which inferences may be drawn from defendant's flight.

Williams's testimony that defendant shoved him in the vestibule; co-defendant attacked him; the perpetrators fled the store with a cart filled with merchandise; the perpetrators transferred some of the items to a getaway car with an awaiting driver who, upon their return from the store, drove away when Williams attempted to stop them, is more than sufficient evidence justifying the flight charge.

We also reject defendant's argument that his Fifth, Sixth and Fourteenth Amendment rights under the Federal Constitution and his rights under Article I, paragraphs 1, 9, and 10 of the New Jersey Constitution were violated when he exercised his right to not testify and thus was unable to provide an alternative explanation for leaving the scene. Defendant contends he should not be punished for asserting his right to not testify at trial, and the court should have instructed the jury on his reasonably viable alternative reasons for fleeing. We disagree.

Defendant had the opportunity to present an alternative reason and declined to do so. The court instructed the jury that defendant denied his actions were flight. That is all that was required under the circumstance.

In Point VII of his brief, defendant challenges his sentence as excessive. We reject the argument.

An appellate court reviews a trial court's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 n.4 (2006). We "may not substitute [our] judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990). However, an appellate court may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).

The trial court denied the State's motion to sentence defendant to an extended term as a persistent offender, determining that it could sufficiently sentence defendant within the ordinary range. The trial court sentenced defendant to seven years of imprisonment, three years below the statutory maximum for a second-degree robbery. In so doing, the trial court found aggravating sentencing factors N.J.S.A. 2C:44-1a(3) (risk to re-offend); (6) (defendant's prior criminal record); and (9) (the need to deter defendant and others from violating the law); the court did not find any mitigating sentencing factors. N.J.S.A. 2C:44-1b.

Based on our review of the record and the transcript of the sentencing hearing, we discern no legal reason to interfere with the sentence imposed by the trial court. We have considered the other arguments raised by defendant. We conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm, and remand to the trial court to amend the judgment of conviction to reflect that defendant was convicted on count three of third-degree conspiracy to commit shoplifting, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-11b.

Affirmed and remanded.

1 Before trial, co-defendant entered into a plea agreement with the State wherein she pled guilty to count two and agreed to testify against defendant in exchange for the State dismissing the remaining two counts of the indictment and recommending that she be sentenced to a term of probation conditioned upon serving 364 days at the Middlesex County Jail.

2 The judgment of conviction does not reflect the pretrial amendment of count three from second-degree conspiracy to commit robbery to third-degree conspiracy to commit shoplifting.

3 At trial, the video surveillance was admitted into evidence and played to the jury without objection.

4 The following is the formula used to calculate the total retail value of the items: (18 large blue cans x 23.69) + (7 large red cans x 24.99) + (5 small red cans x 13.79) + (3 packages of baby diapers x 9.54) = 698.92.