STATE OF NEW JERSEY v. LUCIUS SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. 0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUCIUS SMITH,

Defendant-Appellant.

__________________________________

Telephonically argued January 6, 2015 - Decided July 10, 2015

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-05-0835.

Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Friedman, of counsel and on the brief).

Gregory S. Mullens, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Mullens, on the brief).

PER CURIAM

After a jury trial, defendant was found guilty of felony murder, N.J.S.A.2C:11-3(a)(3); first-degree robbery, N.J.S.A.2C:15-1; conspiracy to commit robbery, N.J.S.A.2C:5-2 and N.J.S.A.2C:15-1; and aggravated assault, N.J.S.A.2C:12-1(b). The jury acquitted defendant of two counts charging him with weapons offenses. The judge imposed a forty-year sentence on the felony murder count, merging the convictions on the other three counts. The custodial term was subject to an eighty-five percent parole ineligibility period pursuant to the No Early Release Act ("NERA"), N.J.S.A.2C:43-7.2.

The State established the following pertinent facts in the three days of trial testimony. On the evening of February 24, 2009, defendant played dice with several other persons at an outdoor location in Jersey City. After the dice game ended, defendant and others noticed the victim, an apparently inebriated Hispanic male, staggering by. Defendant then took part in what one of his co-defendants described as a "game" of "knock out," in which they would accost and attack a pedestrian and try to render that person unconscious.

Although there were some variations among the witnesses1about the exact sequence of events, the proofs essentially showed that defendant and about eight other men surrounded the victim, chased him under an overpass, took his wallet and belongings, and beat him with a brick. An autopsy revealed that the victim died from the attack due to blunt force trauma to his head, which had fractured his skull.

Part of the episode was filmed from across the street by a fixed surveillance camera.2 Several of the co-perpetrators entered into plea agreements with the State, implicating defendant as the person who took the victim's wallet and also as the person who held the brick. Fragments of a brick were recovered from the area. The wallet, which turned out to have no money in it, was apparently discarded and was not recovered.

Defendant, who was tried individually, did not testify or present any witnesses. In summation to the jury, his trial counsel argued that the co-perpetrators who had testified for the State lacked credibility, and that there was no reliable proof that defendant struck the victim with the brick or that he was the person who had taken the victim's wallet.

Defense counsel also contended that the assault on the victim and the theft of his wallet were discrete and separate events. Counsel asserted that the State had failed to establish that those actions formed an integrated act of robbery, and thus there was no eligible predicate offense of robbery to support the felony murder charge.

In this direct appeal, defendant raises the following points

POINT I

THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW BY REFUSING TO ALLOW THE JURY TO CONSIDER THEFT AS AN ALTERNATIVE VERDICT TO ROBBERY AND, BY NECESSARY INFERENCE, FELONY MURDER. (Partially Raised Below)

POINT II

EVIDENCE OF UNCHARGED ACTS OF ROBBERY OCCURRING AT UNSPECIFIED TIMES PRIOR TO THE DATE OF THE INSTANT OFFENSES SHOULD NOT HAVE BEEN ADMITTED BECAUSE THEY WERE IRRELEVANT AND POSED A TREMENDOUS RISK OF UNDUE PREJUDICE. (Partially Raised Below)

POINT III

THE JURY WAS NOT INSTRUCTED ON THE ELEMENTS OF FIRST DEGREE ROBBERY, AS CHARGED IN COUNT THREE OF THE INDICTMENT. THEREFORE, IF DEFENDANT'S CONVICTIONS ARE REVERSED BECAUSE OF THE ERRORS IDENTIFIED IN POINTS I AND/OR II, ON RETRIAL, DEFENDANT CAN ONLY BE CONVICTED OF SECOND DEGREE ROBBERY ON COUNT THREE. (Not Raised Below)

POINT IV

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

Having fully considered these points in light of the record and the applicable law, we affirm defendant's conviction and sentence.

I.

Defendant first claims that the trial court erred in declining to charge theft as a lesser-included offense of robbery. According to defendant, had the trial court done so, the jury might have acquitted him of robbery and found him guilty of only theft, thereby eliminating the statutory basis for felony murder. SeeN.J.S.A. 2C:11-3(a)(3) (listing robbery, but not theft, as a predicate offense to felony murder); see alsoState v. Gonzalez, 318 N.J. Super. 527, 536 (App. Div.), certif. denied, 161 N.J. 148 (1999) (noting that "theft or attempted theft from the person is not a predicate crime for felony murder").

A lesser-included offense is to be charged, even when not specifically requested by trial counsel, where potential guilt of that offense is "clearly indicate[d]" by the proofs. State v. Jenkins, 178 N.J. 347, 361 (2004); State v. Choice, 98 N.J. 295, 299 (1985). However, on appellate review, the need for such an unrequested lesser-included offense charge "must jump off the proverbial page." State v. R.T., 205 N.J. 493, 510 (2011) (internal quotations omitted).

Even where such a charge is requested by trial counsel, N.J.S.A. 2C:1-8(d) instructs that a "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." In State v. Cassady, 198 N.J. 165 (2009), the Supreme Court held that the appropriateness of an included offense charge requires: "(1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." Id. at 178 (quoting State v. Thomas, 187 N.J. 119, 131 (2006)).

Here, the charge issue concerns the respective elements of theft and robbery. Theft involves a defendant's taking of any form of property by any variety of unlawful means. See State v. Dixon, 114 N.J. 111, 114 (1989); see generally N.J.S.A. 2C:20-1 to -38 (enumerating the various theft offenses).

By comparison, robbery occurs when a defendant, "in the course of committing a theft," inflicts bodily injury or uses force upon another person, or threatens another person or purposely puts him or her in fear of immediate bodily injury, or commits or threatens immediately any first or second degree crime. N.J.S.A. 2C:15-1(a). "An act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." Ibid.

The law distinguishes between situations in which the theft of property is an "afterthought" following a completed assault, threat, or use of force, as opposed to a robbery, in which the theft has a closer nexus in time or circumstance to the assaultive, forceful, or threatening act. See, e.g., State v. Lopez, 187 N.J. 91, 101 (2006); see also Cassady, supra, 198 N.J. at 178-79. This distinction noted in Lopez led to the creation of an optional paragraph in the model charge for robbery, which advises the jury in appropriate circumstances

(CHARGE THE FOLLOWING IF THERE IS AN ISSUE REGARDING THE TIMING OF THE USE OF FORCE)

To find the defendant guilty of robbery, the intent to commit a theft must precede or be coterminous with the use of force. In other words, the defendant must have formed the intent to commit a theft before or during his/her use of force. If you find the defendant formed the intent to commit a theft after his/her use of force, then he/she cannot be found guilty of robbery.

[Model Jury Charge (Criminal), "Robbery In The First Degree (N.J.S.A. 2C:15-1)" (2007).]

In the present case, the trial judge chose not to read this so-called optional "Lopez paragraph" within the robbery charge because he did not consider the evidence to reflect any significant gap in time between when the victim was assaulted and when his wallet was stolen.

Defendant's trial counsel did not object to the omission of the Lopez paragraph, but he did request that the court charge theft as a lesser included offense. The judge rejected that request, essentially based on the same reasoning that this was an integrated criminal act involving both theft and the use of force.

On appeal, defendant argues that the court was obligated to charge theft here as a lesser included offense. He poses two main alternative theories of the facts: either (1) the victim was assaulted with the brick after his wallet was already stolen; or (2) the victim was first assaulted, and then, after that assault was complete, the perpetrator took his wallet as an afterthought. Neither theory is reasonably in accord with the trial proofs.

The trial witnesses' accounts, although diverging in certain respects, established that the beating of the victim with a brick and the theft of his wallet all took place as part of a continuous series of events occurring after the group surrounded the victim. There was no credible proof of a significant gap in time, place, or circumstance between the criminal acts, regardless of whether the actual use of force occurred before the theft, or vice-versa. Indeed, the initial circling of the victim which is confirmed by the surveillance video can be construed as conduct which "threatens another with or purposely puts him in fear of immediate bodily injury." See N.J.S.A. 2C:15-1(a)(2). No "special words" are required to convey such a threat under the robbery statute. State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000).

Defendant relies on State v. Grissom, 347 N.J. Super. 469 (App. Div. 2002), to support his alternative theory that the theft was complete before the assault occurred, and therefore a robbery did not occur. In Grissom, the defendant appealed his criminal conviction for robbery, arguing that the trial court had erred by refusing to charge the lesser-included offense of theft of services. Id. at 473. The defendant in Grissom had exited a taxi without paying, after looking through his pockets for the fare. Id. at 472. Then, the defendant walked away and the driver followed him in the taxi and demanded the fare without exiting the vehicle. Id. at 473. The defendant pointed a handgun at the driver and asked, "[A]re you looking for money?" Ibid. The driver drove away and alerted a police officer, who eventually apprehended defendant. Ibid. We reversed the defendant's conviction in Grissom, concluding that the lesser-included charge should have been issued because the evidence could form a rational basis for the jury to conclude that the defendant reached a point of at least temporary safety after committing the theft, and before committing the assault. Id. at 479.

Here, defendant contends, albeit as an alternative factual theory, that he reached a point of temporary safety after committing the theft of the victim's wallet. However, the evidence does not support such a claim. The proofs instead showed that the theft and assault were intertwined, starting when the victim was circled by the menacing group of "knock out" players that included defendant. The entire episode lasted only a few minutes. There is no proof that defendant ever left the crime scene or that he separated himself from the victim. As the prosecutor asserted and the trial judge reasonably accepted, the theft of the victim's wallet was not a mere "pickpocketing or purse snatching," but rather took place within a significant, continuous, violent encounter.

In sum, the trial judge did not err in declining in these circumstances to charge theft as a lesser included offense. There was no rational support in the record to treat the wallet-taking and the use of force here as independent, disconnected acts.

II.

In his second point, defendant asserts that he was unfairly prejudiced by the court's admission of a portion of the videotaped recording of co-defendant Tyshaun Shannon's statement recounting prior robberies that some of the individuals involved in the February 24, 2009 incident had committed at an unspecified, earlier time. The court allowed the State to play the entire statement to the jury after a hearing held pursuant to State v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff'd, 121 N.J. 1 (1990).

Defendant contends that Shannon's entire statement should not have been admitted, as his trial counsel had argued to the judge. Specifically, defense counsel noted the existence of "several prejudicial items" within Shannon's statement, including "hearsay." Defendant argues that although these references were not explained by his trial attorney in detail, the attorney was likely referring to the following portion of Shannon's questioning by the police

Q. Okay. Is this all the truth you're telling me here?

A. Yes.

Q. Are you sure there's nothing else you could tell me that . . .

A. I'm sure.

Q. Can help us out?

A. I'm sure.

Q. Alright, so Big Ty, Russ3, and Lucias [sic]?

A. Yes.

Q. And it was Russ's idea . . .

A. Yes.

Q. To go rob this man?

A. (inaudible)

Q. Have they done this before? Tell the truth?

A. I don't, I don't know about Russ and them. But Russ and them been telling me they been they, Big Ty and them be saying they be robbing people by the university taking their G1's.

Q. Their what?

A. Their G1's, they phones and stuff.

Q. What, what university?

A. Over there by um, it's a, it's a high school university?

Q. Where's that at?

A. I don't know where the university at. I never been in the university.

Mom: (Laughs)

Q. What's a G1?

A. It's uh, it's like,

Mom: Cell phone.

A. Like a cell phone.

Q. Okay. And what, what's this university thing at.

A. I don't know I know (inaudible) at.

Q. So your [sic] saying Ty and Russ been robbing people there?

A. Yeah.

Q. They've told you this?

A. Yeah taking their G1's.

Q. And how many G1's you think they got already?

A. Ty said he took it, gave it back. Then Russ took it and he gave it back and somebody else took it. I don't know, I forgot the boy name [sic] that said he took it.

Conceding that this portion of Shannon's questioning does not refer to him by name, defendant argues that the jury could have inferred that he was included in the collective pronoun when Shannon referred to "they" and "them." Defendant further argues that the portions of the statement alluding to the university cell phone robberies amount to inadmissible evidence of prior bad acts, and should have been excluded under N.J.R.E. 404(b). We disagree.

The portions of Shannon's police statement in question did not present the jury with evidence of prior uncharged acts of robbery committed by defendant. He was not mentioned by name within the specific passages relative to the university robberies. There was no reasonable basis for the jury to infer, by Shannon's generic reference to "they" and "them," that defendant participated with Ty and Russ in the perpetration of the prior robberies. The linkage to him is, at most, tenuous. Notably, the prosecutor did not refer to these university robberies in closing argument.

Defendant did not request a hearing to assess the admissibility of the contested portion of Shannon's statement pursuant to N.J.R.E. 404(b) or N.J.R.E. 104. Hence, an analysis pursuant to State v. Cofield, 127 N.J. 328 (1992), was not performed. However, even if defendant had requested such a hearing, the statement simply did not implicate defendant and therefore, the judge was not obligated to conduct a Cofield analysis.

III.

As his third point, defendant asserts that the trial court erred by failing to instruct the jury fully on the elements of first-degree robbery, as charged in count three of the indictment. In particular, defendant spotlights that the court's charge on this count omitted advising the jury that the State was obligated to show that defendant "purposely caused serious bodily injury," beyond a reasonable doubt.

We are not persuaded that defendant's robbery conviction must be reversed because of this inadvertent omission from a portion of the entire jury charge. The court did properly instruct the jury as to the meaning of a "purposeful" act, and also as to what constitutes "bodily injury" under the statute. The verdict sheet specifically included the appropriate definitional language for robbery as to count three. Considering, as we must, the charge as a whole, the jury was equipped with sufficient tools to find that defendant acted purposefully when inflicting serious bodily injury on the victim, and thus the first-degree robbery conviction was proper.

Appellate courts "must not isolate the language [in the jury charge] challenged but must examine the remark in the context of the entire charge." State v. DiFrisco, 137 N.J. 434, 491 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "A jury charge must adequately set forth the elements of an offense in a way that explains the law to the jury in an understandable manner." Ibid. "The test, therefore, is whether the charge in its entirety was ambiguous or misleading." State v. Hipplewith, 33 N.J. 300, 317 (1960).

The judge instructed that "the State is required to prove each of the following elements beyond a reasonable doubt: that defendant was in the course of committing a theft; that while in the course of committing the theft, the defendant knowingly inflicted bodily injury or used force upon the other." The judge then defined "purposely," and "bodily injury."

Defendant did not object to this aspect of the charge at trial, and therefore the plain error standard of review applies. R. 2:10-2; State v. Ross, 218 N.J. 130, 142-43 (2014). Our inquiry is whether the effect of the error is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Reading the charge as a whole, we are not convinced that the judge's omission raises a "reasonable doubt" that the jury was led to a result here that it would not otherwise have reached. Ibid.

Given the correct jury instruction as to the meaning of the key terms "purposely" and "bodily injury," the inclusion of a proper definition of first-degree robbery on the verdict sheet, and defendant's failure to object, we discern no need to vacate his conviction for first-degree robbery.

IV.

There is scant reason to comment at length on defendant's final claim that his forty-year NERA sentence was excessive and not adequately justified by the judge's sentencing analysis.

In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 506-07 (2005); State v. Kruse, 105 N.J. 354, 358 (1987).

If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). When a judge follows the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (noting that if the trial judge "adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing").

We reject defendant's claim that his forty-year sentence for felony murder was unjustified or contrary to the statutes. The maximum sentence for felony murder is not forty years, as defendant contends, but rather life imprisonment. See N.J.S.A. 2C:11-3(b)(1). The judge was well within his discretion to sentence defendant for this senseless and brazen homicide to a term of forty years, a period "between 30 years and life imprisonment" allowed by the statute.

We also reject defendant's claim that the Supreme Court's opinion in State v. Fuentes, 217 N.J. 57 (2014), requires the sentence to be remanded to the trial court for a more explicit statement of why aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (referring to the need for deterrence), applies. The Court's decision in Fuentes to remand for resentencing was influenced by the defendant's plea agreement, the application of not only aggravating factor nine but also mitigating factor eight, and the failure by the court to explain its balancing of factors. Here, the trial judge addressed deterrence aspects by expressing his concerns about defendant's participation in what was blithely referred to as a game of "knock out." The judge also specifically found in his bench ruling that aggravating factor nine applies here.

Moreover, the sentencing context here is less complicated than in Fuentes, as there are no offsetting mitigating factors to complicate the analysis, and defendant does not invoke any in his appellate brief. Defendant, in essence, killed a man for sport and for the contents of a wallet. His forty-year custodial term was richly deserved.

All other arguments presented by defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 At various points when some of the State's witnesses, who were testifying pursuant to plea agreements, varied from their earlier statements to the police, portions of their prior statements were read into the record in accordance with N.J.R.E. 803(a)(1).

2 We have reviewed the two-minute video recording that was played for the jury. The video briefly shows several individuals circling around another person between two parked cars. The surrounded person then runs off towards an overpass and is followed by the group, outside of the purview of the camera.

3 Big Ty and Russ were the names of other co-perpetrators.