STATE OF NEW JERSEY v. DARNELL W. SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2751-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL W. SCOTT, a/k/a DARRELL SCOTT,

Defendant-Appellant.

_____________________________________________

October 23, 2012

Argued March 20, 2012 - Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-02-0150.

Derek T. Nececkas, Assistant Prosecutor, argued the cause for appellant (Theodore J. Romankow, Union County Prosecutor, attorney; Mr. Nececkas, of counsel and on the brief).

Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Ms. Hubbard, of counsel and on the brief).

PER CURIAM

Defendant Darnell Scott appeals from his conviction, following a jury trial, of two counts of first-degree carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a); and second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2. Thereafter, the trial judge, after merging the conspiracy conviction with one carjacking conviction, sentenced defendant to three concurrent prison terms of fifteen years, each subject to a mandatory period of parole ineligibility of eighty-five percent, to be served concurrent with a nine-month sentence on the resisting arrest conviction.

On appeal, defendant raises the following contentions.

POINT I: THE COURT'S FAILURE TO PROVIDE THE JURY WITH A CHARGE EXPLAINING HOW MR. SCOTT COULD BE FOUND GUILTY OF A LESSER-INCLUDED OFFENSE AS AN ACCOMPLICE TO THE CO-DEFENDANTS IF HE DID NOT SHARE THEIR INTENT TO COMMIT THE SPECIFIC GREATER OFFENSES DEPRIVED MR. SCOTT OF DUE PROCESS AND A FAIR TRIAL. (RAISED BELOW BY PROSECUTOR).

POINT II: THE COURT'S INSTRUCTION THAT THE JURY COULD CONSIDER THE FACT THAT TWO OF THE WITNESSES HAD PREVIOUSLY ENTERED GUILTY PLEAS IN JUVENILE COURT TO DETERMINE THEIR CREDIBILITY WAS INCORRECT AND DEPRIVED MR. SCOTT OF DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW).

POINT III: THE INTRODUCTION OF TESTIMONY THAT A RELUCTANT STATE'S WITNESS PREVIOUSLY STATED THAT HE COULD NOT GO HOME IF HE TESTIFIED, ABSENT A LIMITING INSTRUCTION, WAS HIGHLY PREJUDICIAL AND LEFT THE JURY TO ATTRIBUTE UNCHARGED CRIMES, WRONGS, OR ACTS TO THE DEFENDANT, IN CONTRAVENTION OF THE PRINCIPLES ENUNCIATED IN N.J.R.E. 403 AND N.J.R.E. 404(b) AND DENIED THE DEFENDANT HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (NOT RAISED BELOW).

For the reasons that follow, we affirm.

I.

We discern the following facts from the record. Defendant and three friends, Rajah Harris, Christopher Morales, and Daquan Ragland, were driving in a stolen jeep in Rahway. Their vehicle pulled up next to Jovan Martinez, who was walking on the sidewalk heading to a party. Defendant left the vehicle to approach Martinez on the sidewalk while his three friends remained in the jeep. Martinez heard someone call out from the vehicle ordering him to surrender his car keys. Then, someone on foot from behind repeated the demand. Martinez turned around and saw defendant aiming a gun at him. Martinez struck defendant in the face, knocking him to the ground. Defendant got up and ran back to the jeep, which then drove away.

Later that night, in Elizabeth, Daniel Vasquez was sitting in his car with a friend when four males wearing white tee shirts approached them. Vasqeuz was not able to recall their appearances in detail, but reported they were young African Americans about his height. One of the men pointed a gun at Vasquez and another made a show of reaching for a gun in his waistband. The first man demanded that Vasquez turn over his car keys, threatening to kill him if he did not comply. Vasquez acquiesced. He then observed the men enter his car and drive away.

The next morning, the men drove Vasquez's car back to Elizabeth where they picked up a friend, Aaron Williams. That afternoon, they stopped at a food mart. Only two of them entered the store. A shopper named Maria Romero noticed them standing in line behind her at the cash register. She had a large amount of cash in her wallet. The two left the store while Romero remained inside speaking with the owner. Shortly thereafter, Williams returned to the store alone and pointed a gun at Romero, demanding that she give him her wallet. When she refused, he knocked her over, grabbed the wallet, and fled. The group drove away, but crashed into another car a few blocks away. All five men were arrested later that day.

Defendant made a statement to the police maintaining that, although he was present during all three incidents, he did not intend to commit any of the crimes. He added that when he approached Martinez, he was not trying to steal his car, but only wanted to defend one of his friends. He further reported that he only witnessed the Elizabeth carjacking and had nothing to do with the food mart robbery.

On February 21, 2008, defendant was charged with several criminal counts, including first-degree carjacking, fourth-degree aggravated assault, third-degree unlawful possession of a weapon, first-degree robbery, second-degree possession of a weapon for an unlawful purpose, fourth-degree resisting arrest and first-degree conspiracy to commit carjacking. Harris and Ragland were prosecuted as juveniles and, having both pled guilty to charges stemming from these incidents, were adjudicated as juvenile delinquents.

Prior to the trial, defendant moved to suppress his statement to police on the grounds that it resulted from a Miranda1 violation. After a hearing the judge denied the motion. At the beginning of trial, on the State's motion to dismiss, the trial judge dismissed the charges of aggravated assault with a firearm, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose because the weapon used during the crimes was determined to be a non-functioning replica of a gun.

At trial, Harris and Ragland testified for the State as part of their plea agreements. Both men provided testimony favorable to defendant, which differed from their testimony at the plea hearings. The witnesses' prior inconsistent statements were used by the State in an attempt to impeach them.

Harris testified to a variety of contradictory explanations concerning defendant's involvement in the charged crimes. Harris testified at his plea hearing that he saw defendant pull a gun on a man outside his car. He later testified that defendant did not try to carjack Martinez's car at all. Harris also contended that he forced defendant to commit the Rahway carjacking because defendant owed him money.

In the second carjacking incident, Harris initially reported that the four men approached Vasquez and defendant pointed a gun at him. Harris also said that Vasquez gave the keys to defendant, who handed them to Harris. He later contradicted his earlier testimony that defendant had been in possession of the gun and had been the primary assailant in the Elizabeth carjacking, stating that he himself had held the gun and been the principal.

At his plea hearing, Harris had stated that defendant gave Williams his gun to rob the food mart. He testified in front of the jury that Williams committed the robbery and that defendant had nothing to do with it.

Ragland testified that he could not recall his testimony at his guilty plea hearing because he had been under the influence of psychiatric medication. He stated that he could not remember the names of anyone he was with during the two-day period that the crimes occurred. He further testified that he did not know defendant, and could not identify him in the courtroom, which directly contradicted the transcripts from his plea hearing. Ragland also claimed that he was the person who had carjacked Vasquez's car in Elizabeth.

The following exchange occurred between the assistant prosecutor and Ragland during the trial:

PROSECUTOR: Mr. Ragland, I came to see you yesterday, correct?

RAGLAND: Correct.

. . . .

PROSECUTOR: And we had a conversation and you asked it was the first thing that you said to me when I said when I told you why we were there, you said I ain't testifying, how can I go home if I testify, right?

RAGLAND: Yeah.

PROSECUTOR: That's what you said, right?

RAGLAND: Yes.

PROSECUTOR: Isn't that the reason why you're changing all the testimony now?

RAGLAND: No.

Defendant did not request and the judge did not provide a limiting instruction regarding Ragland's above testimony.

Additionally, when the judge instructed the jury regarding assessing Harris's and Ragland's testimony about the crimes, she told them that they could take the witnesses' juvenile records into account when assessing credibility.

The judge then instructed the jury on accomplice liability, stating:

In order to convict Darrell Scott as an accomplice to any of the crimes charged, you must find he had the purpose to participate in that particular crime. He must act with the purpose of promoting or facilitating the commission of the substantive crime of which he is charged. It is not sufficient to prove only that he had knowledge that another person was going to commit the crime charged.

To find someone guilty of robbery, the judge explained, that person must have, in the course of committing a theft, purposefully or knowingly inflicted bodily injury or used force on the victim, or threatened immediate bodily injury or threatened to commit any crime in the first or second degree. In addition, the trial judge presented the jurors with the option of finding defendant guilty of the lesser included offenses of theft for each of the carjacking charges and for the robbery charge. The trial judge did not provide the standard Model Jury Charge instruction, known as a Bielkiewicz2 charge, that an accomplice may have a lesser intent than the principal actor and thus may be found criminally liable for a lesser offense.

While defense counsel did not object to the charge at trial, the prosecutor told the judge he believed the instruction was inadequate for a situation where accomplice liability and lesser included offenses had been charged and suggested a Bielkiewicz charge. The judge declined, as she did not think it was relevant to the case. Defense counsel did not say anything.

II.

First, defendant argues that the judge failed to explain to the jury under what circumstances the jury could have found him guilty of theft as an accomplice even if it found the principal actor guilty of carjacking or robbery. Defendant contends that a reasonable jury could have found he possessed a lesser mental state as an accomplice. Since the judge did not instruct the jury on this lesser mental state, defendant argues he was improperly deprived of the opportunity of being found guilty of a lesser included offense, and that this constitutes reversible error under State v. Bielkiewicz, supra, 267 N.J. Super. at 535.

The State counters that no reasonable jury could have found that defendant participated in the carjackings and robbery with a lesser mental state than the other actors. The State submits that this case constitutes an exception to the Bielkiewicz requirement because no evidence supports the theory that a defendant possessed a lesser mental state than the principal.

Since defendant did not object to the jury instructions at trial, we review this matter under the plain error standard. State v. Savage, 172 N.J. 374, 387 (2002); State v. Afanador, 151 N.J. 41, 54 (1997). This standard dictates that we only reverse errors "clearly capable of producing an unjust result." R.2:10-2; State v. Robinson, 200 N.J.1, 20-21 (2009). It is not sufficient to show a mere possibility of an unjust result, but rather, there must be "a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). If the jury verdict might have been different had the jury been properly charged, the judge's erroneous instructions constitute reversible error. Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002); Velazquez ex rel. Velasquez v. Portadin, 163 N.J. 677, 688 (2000).

When a defendant is charged as an accomplice to a crime, the "jury must be instructed that to find [him] guilty of a crime under a theory of accomplice liability, it must find that he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" Savage, supra, 172 N.J. at 388 (quoting State v. Fair, 45 N.J. 77, 95 (1965)). However, an exception to the shared intent rule occurs when one defendant is guilty of a lower degree of crime than the other, because he or she possessed a lesser mental state at the time of the crime. See State v. Madden, 61 N.J. 377, 391 (1972) (finding that where two defendants had different intents, one may be charged with the lesser included offense of accomplice to assault rather than murder). See also State v. Harrington, 310 N.J. Super. 272, 278 (App. Div.), certif. denied, 156 N.J. 387 (1998); State v. Jackmon, 305 N.J. Super. 274, 285 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998).

Generally, jury instructions on accomplice liability must contain an instruction that the defendant may be found guilty as an accomplice of a lesser included offense even if the principal is found guilty of the more serious offense, if the accomplice possessed a lesser mental state than the principal. State v. Norman, 151 N.J. 5, 37 (1997); Bielkiewicz, supra, 267 N.J. Super. at 528. When lesser included offenses are part of the jury charge, the court must carefully distinguish each degree of the offense to facilitate the jurors' understanding. Savage, supra, 172 N.J. at 388; State v. Weeks, 197 N.J. 396, 410 (1987). The jury charge must also be tailored to the facts of a particular case. Savage, supra, 172 N.J. at 389; State v. Cook, 300 N.J. Super. 476, 487-488 (App. Div. 2006).

However, a Bielkiewicz instruction is not required in cases where the defendant must have either had the requisite mental state to commit the offense, or was not guilty at all. State v. Rue, 296 N.J. Super. 108, 115 (App. Div. 1996) ("[N]either of those versions warranted a Bielkiewicz charge, the former because defendant's culpability was as a principal; the latter because defendant was not guilty of a crime at all."); State v. Norman, supra, 151 N.J. at 38 (1997) ("There is simply no reasonable view of the evidence that would permit one to conclude that defendant fired the shots or aided in the firing of the shots with anything less than homicide in mind.").

Thus, the critical question here is whether the evidence at trial can support a theory that defendant possessed a lesser mental state than the other participants. We perceive that under either the defendant's or state's theories of the case, no evidence supports the lesser mental state premise needed for a Bielkiewicz charge.

Defendant alleges in the first carjacking that either he had no intent to take the car, or that he stole the car by threatening Martinez with a gun but Harris forced him to commit the crime. Regarding the second carjacking, defendant claims either that he was with the carjackers but did not intend to take part in any crime or, based upon Harris's testimony, he was not present at all. As to the food mart robbery, defendant's theory is that he not only did not participate, but tried to dissuade Williams from committing the robbery. On the other hand, the State contends that defendant was the principal actor in the first carjacking, the principal or accomplice in the second carjacking, and an accomplice in the robbery based upon Harris's statement at his plea hearing that defendant planned the robbery with Williams and provided the weapon. We agree with the trial judge that none of these theories presented a rational basis for the jury to consider whether defendant had a lesser intent to commit a theft. Once the jurors determined that defendant participated in these crimes, no reasonable jury could have found he possessed the lesser mental state required to commit a theft. See Fair, supra, 45 N.J. at 95. Accordingly, we conclude that the trial judge did not err as an accomplice lesser mental state charge was not warranted under the facts in this case.

III.

Next, defendant argues that the court improperly instructed the jury that it could consider Harris's and Ragland's juvenile adjudications when assessing their credibility, since under New Jersey law juvenile adjudications cannot be considered for impeachment purposes. The State agrees that the trial judge's instructions were erroneous, but argues that the error was harmless, especially since the witnesses were testifying for the State. We do not find defendant's argument persuasive.

N.J.R.E. 609 permits use of a witness's prior conviction for purposes of impeachment and evaluating credibility. However, juvenile adjudications are not considered convictions in this context and may not be used to impeach a witness's credibility. In re K.P., 167 N.J. Super. 290, 293-94 (App. Div. 1979). See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Because defendant did not object to the jury charge at trial, this analysis is governed by the plain error rule. Savage, supra, 172 N.J. at 387. Defendant must show that sustaining his conviction in light of this error constitutes a manifest injustice. See State v. Burns, 192 N.J. 312, 341 (2007).

Defendant supports his claim of harmful error with cases that differ from the case at bar in a significant aspect: in those cases, the defendants' own juvenile adjudications were improperly considered. See K.P., 167 N.J. Super. at 293-94; State v. DePaola, supra, 5 N.J. 1, 18 (1950). However, the risk of prejudice to a defendant is significantly lower where the jury improperly considered the juvenile adjudications of State witnesses rather than the defendant's own prior criminal history. See State v. Balthrop, 92 N.J. 542, 545 (1983). Additionally, even where a defendant's own prior conviction was erroneously admitted, the error is harmless if there is "overwhelming [] testimony pointing to defendant's guilt." State v. Timmendequas, 161 N.J. 515, 573 (1999); State v. Lair, 62 N.J. 388, 392 (1973).

We reject defendant's contention that his conviction should be reversed due to the erroneous jury instruction. First, defendant did not object at trial, but instead, chose to gamble upon the effect of Harris's and Ragland's testimony since it was hard to predict if their testimony would be helpful or damaging to defendant's case. Second, their testimony was mixed as they provided both inculpatory and exculpatory evidence for defendant, but both testified for the State. Thus, the information impugning their credibility arguably could have substantially prejudiced the State as much as or more than defendant. Seeibid. Moreover, where, as here, there is very substantial evidence of guilt, it is unlikely that the erroneous instruction that the jury could consider the juvenile records of State's witnesses affected the jury verdict. Seeibid.; Timmendequas, supra, 161 N.J. at 573. Accordingly, we conclude that the erroneous instruction did not constitute plain error as it was not capable of producing an unjust result.

IV.

Finally, defendant contends that admitting Ragland's statement implying that he would be afraid to return home if he testified against defendant was plain error, either pursuant to N.J.R.E. 404(b) as evidence of bad acts or wrongs or as unduly prejudicial under N.J.R.E. 403.

The State counters that the testimony does not implicate a bad act or wrong under N.J.R.E. 404(b) because it does not assert that defendant took any action, only that Ragland was fearful for an unspecified reason. Further, according to the State, there is no breach of N.J.R.E. 403 as the statement is relevant to show bias, and the prejudicial value of the statement is slight.

N.J.R.E. 404(b) recognizes that evidence of bad acts can be unduly prejudicial, encouraging the jury to convict a defendant based not on the evidence, but because he is a bad person. See State v. Gillispie, 208 N.J. 59, 85 (2011); State v. Barden, 195 N.J. 375, 388 (2008). Under N.J.R.E. 404(b), evidence of misconduct may be admitted to prove a non-propensity purpose if the judge determines that its probative value outweighs the potential prejudicial effect. State v. Rose, 206 N.J. 141, 159 (2011); State v. Cofield, 127 N.J. 328, 338 (1992).

We are not persuaded that Rule 404(b) applies to Ragland's statement, which does not implicate a bad act or wrong of defendant. Ragland did not claim he feared reprisal from defendant, only that he would be afraid of the consequences of testifying. He could have been expressing a fear of retaliation from other community members. See State v. Byrd, 198 N.J. 319, 341 (2009) (recognizing the widespread culture of retaliation against witnesses in criminal cases). Consequently, we agree that N.J.R.E. 404(b) does not apply to a situation such as the present one where a witness voiced only a vague and unspecified fear of testifying against a defendant. Thus, a limiting instruction was not required because there was no N.J.R.E. 404(b) violation.

Moreover, we reject defendant's argument that N.J.R.E. 403 required the judge either to bar admission of Ragland's statement or to issue a limiting instruction. A party moving to exclude evidence under N.J.R.E. 403 has the burden of convincing the court that the risk of prejudice substantially outweighs the probative value. State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000); State v. Morton, 155 N.J. 383, 453 (1998). The probative value must be "'so significantly outweighed by [its] inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." State v. Covell, 157 N.J. 554, 568 (1999) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).

Here, Ragland's statement that he could not go home if he testified against defendant was relevant and probative evidence because it showed bias as well as motive to fabricate. New Jersey has "long permitted admission of evidence of threats and coercion 'to explain discrepancies or contradictions in a witness' testimony.'" State v. Pierro, 253 N.J. Super. 280, 286 (App. Div.), certif. denied, 127 N.J. 564 (1992) (quoting State v. Gray, 112 N.J. Super. 412, 418 (App. Div. 1970)). We reject as without support defendant's claim that Ragland's vague expression of fear of retaliation had the potential to inflame the minds of the jurors against defendant.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993).