STATE OF NEW JERSEY v. DAMIEN WARNER a/k/a DARRYL HIGGINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2692-04T42692-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMIEN WARNER a/k/a

DARRYL HIGGINS,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 17, 2006 - Decided December 1, 2006

Before Judges Skillman and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-06-0399-I and 01-10-0716-I.

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

Robert L. Taylor, Cape May County prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On October 23, 2001, defendant, Damien Warner, and co-defendant, Robert Simpkins, were charged by Cape May County Indictment No. 01-10-0716-I with first-degree armed robbery, in violation of N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit armed robbery, in violation of N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count two); third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count three); and first-degree employing a juvenile to commit an offense, in violation of N.J.S.A. 2C:24-9 (count four). After a two day jury trial, on June 12, 2002, defendant was found guilty of all four counts.

On June 11, 2002, defendant was charged by Cape May County Indictment No. 02-06-0399-I with third-degree bail jumping in violation of N.J.S.A. 2C:29-7. On August 9, 2002, defendant entered a plea of guilty to that charge. On the same date, defendant was sentenced on both indictments. On Indictment No. 01-10-0716-I, defendant was sentenced to a twenty-year term of imprisonment with a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d), ten-year period of parole ineligibility for armed robbery and a concurrent twenty-year term of imprisonment with a NERA ten-year period of parole ineligibility for employing a juvenile to commit an offense. The remaining convictions were merged. Defendant was sentenced to a five-year term of imprisonment on Indictment No. 02-06-0339-I for bail jumping consecutive to his sentence on Indictment No. 01-10-0716-I. Defendant appeals his convictions and sentences. We affirm his convictions but remand for re-sentencing.

On August 17, 2001, Keith McGowan and James Kasar, both age fifteen, were the attendants on duty at the Citgo Gas Station (Citgo station) in Ocean View. The attendants typically had keys for the two cash registers in the two booths of the Citgo station and for an office safe. The office safe had approximately $200 at the start of a shift. A second safe was not accessible to anyone except the manager.

Approximately two months prior to August 17, 2001, defendant had worked at the station for about two days. During those two days, defendant worked with Kasar. According to the manager, defendant was "let go" because of "money shortages" at the station. Defendant denied involvement with the shortages but seemed upset over the incident.

On August 18, 2001, defendant in a taped statement told the police that he was approached by Kasar, who told him he had obtained the key to the Citgo station safe and that defendant should bring a friend to help with a robbery of the station on the following evening. Defendant borrowed his roommate's car and picked up co-defendant Simpkins to help in the robbery. The two drove to the Citgo station at around 8:30 p.m. Simpkins had on his person a folding knife that he regularly carried. Only Kasar and McGowan were on duty that night.

After driving around and parking briefly at a nearby miniature golf course, defendant and Simpkins parked behind the Citgo station. Defendant and Simpkins saw Kasar near the fence by the station's building. Kasar and Simpkins agreed that Kasar would obtain the bathroom key from McGowan and give it to Simpkins, who would then walk up to McGowan and act like he was returning the bathroom key Kasar had given him. As Simpkins approached McGowan, defendant and Kasar walked away. Simpkins testified that the plan was for Kasar to commit a theft of the safe while Simpkins distracted McGowan. Moments later Simpkins yelled for Kasar and defendant to run. Simpkins reported that when he pulled out a knife, McGowan ran to a nearby ice cream store, yelling for help. All three returned to the car and defendant drove off.

McGowan recalled that he was working at the busier booth that was closer to Route 9 and Kasar was working at the other booth. Kasar then asked McGowan for the bathroom key so that his friends could use the bathroom. One person was standing near the fence by the station's office. McGowan complied. The keys for the safe were on the same key ring as the bathroom keys. Within a few minutes, McGowan, who was in the booth, noticed a man in baggy jeans and a hooded sweatshirt concealing most of his face approach him. McGowan took the register key from the drawer. The man put a "sharp cold object" against McGowan's neck and told him to "empty the drawer." McGowan refused and yelled for the police to be called. As McGowan ran to a nearby ice cream store to report the incident, Simpkins "bolted" from the gas station.

While McGowan was on the phone with the police, he saw a four-door white vehicle with its lights off leaving the area between the gas station and a bank. The vehicle then went onto Route 9 toward the Citgo station before turning onto a side road that led back toward the golf course. The vehicle's headlights were off while it was moving. After stopping briefly, the vehicle returned to Route 9 and left the area. The proprietor of the nearby miniature golf course noticed that a white Monte Carlo, with 2025 on the license plate and a passenger wearing a hooded sweatshirt, stopped in his parking lot for five to ten minutes earlier that evening.

Trooper (Tpr.) Ty Rocap and Tpr. Richard Gabor were dispatched to the Citgo station at about 9:00 p.m. Because McGowan reported that Kasar was missing, the area was searched for him without success. However, Kasar suddenly appeared back at the gas station, seeming "very calm."

The investigation led the troopers to defendant's home in Sea Isle City. A white Monte Carlo with LS 2025 on the license plate, registered to defendant's roommate, John Schulpack, was parked near the residence. Defendant was home and agreed to the troopers' request to accompany them to the Woodbine Station to discuss the robbery at the Citgo station. Defendant was given Miranda warnings at 2:40 a.m. on August 18, 2001. At 4:36 a.m., after being re-Mirandized, defendant gave a detailed statement implicating himself, Simpkins, and Kasar in the robbery attempt.

The police later went to defendant's Sea Isle City apartment where they obtained permission to enter from Schulpack, and found the safe key in defendant's bedroom, where defendant had described leaving it. When Simpkins was arrested by the Millville police, a knife was seized from him.

Simpkins testified pursuant to a plea agreement. The plea agreement recommended that he be sentenced to a seven-year prison term in exchange for his guilty plea to conspiracy. Simpkins acknowledged that he had prior convictions for burglary, theft, and criminal mischief. Defendant failed to appear at trial and was tried in absentia.

Defendant presents the following arguments for our consideration:

POINT I.

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE INADEQUATE JURY INSTRUCTIONS ON ROBBERY ON A THEORY OF ATTEMPTED THEFT 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.

POINT II.

THE INTRODUCTION OF OTHER CRIMES EVIDENCE (DEFENDANT'S ALLEGED PRIOR THEFT FROM THE GAS STATION) WITHOUT A LIMITING INSTRUCTION VIOLATED DEFENDANT'S 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.

POINT III.

THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEA ENTERED BY AN ALLEGED ACCOMPLICE 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.

POINT IV.

A REMAND FOR RE-SENTENCING IS REQUIRED UNDER STATE V. NATALE, 184 N.J. 458 (2005).

I.

Defendant claims that the trial court committed plain error, requiring defendant's convictions to be reversed, because the court failed to define the elements of criminal attempt, pursuant to N.J.S.A. 2C:5-1. McGowan and Simpkins both testified that McGowan's response when Simpkins held a knife to his throat and ordered him to empty the cash register foiled the plan for Kasar and defendant to go to the office and commit a theft of the contents of the safe. In his taped statement to the police, defendant stated that McGowan's response to Simpkins resulted in no money being taken from the cash drawer or the safe.

Defendant asserts that because the theft was not completed, his robbery conviction rested on a theory of attempted theft. An individual can be convicted of robbery, despite an unsuccessful theft, if the individual:

(1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury.

[State v. Farrad, 164 N.J. 247, 258 (2000).]

The first element sets out the two primary requirements for criminal attempt: (1) purposeful intent and (2) substantial step. N.J.S.A. 2C:5-1. Defendant asserts that the trial court's failure to define these elements during the jury instructions constituted reversible error.

In State v. Gonzalez, 318 N.J. Super. 527 (App. Div. 1999), the defendant was charged with felony murder premised on the theory that the victim's death was caused in the commission of a robbery. Despite strong evidence of the defendant's involvement, the State could not prove the victim was robbed. Id. at 532-33. The only alternative ground to support a felony murder charge was attempted robbery. Id. at 533. There was, however, conflicting evidence regarding whether defendant had a weapon when he approached the victim. Id. at 535. We found that, based on the evidence, a jury could reasonably conclude that the defendant was attempting a theft and not a robbery, thereby precluding a felony murder conviction, as theft is not a sufficient predicate offense. Id. at 536. Therefore, the failure to define attempt in the jury instructions was plain error. Ibid.

In State v. Smith, 322 N.J. Super. 385, 400 (App. Div.), certif. denied, 162 N.J. 489 (1999), we found that the trial court's failure to define attempt was not plain error because attempt was defined in a different portion of the jury instruction. We found defendant's confession and the overwhelming evidence of defendant's guilt to be substantial factors in rendering our determination. Ibid.

The State asserts that similar to Smith, attempt was defined in a later portion of the jury instruction and therefore constituted harmless error. The relevant portion of the jury instruction referenced by the State reads:

A person acts purposely with respect to his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result . . . . Attempt to aid means that a person takes substantial steps in a course of conduct designed to or planned to lend support or assistance in the efforts of another to cause the commission of a substantive offense.

(emphasis added).

The instruction in Smith, supra, read:

The law provides a person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, [he] purposely does or omits to do anything which, under the circumstances a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

322 N.J. Super. at 399 (emphasis added).

The instruction in Smith made clear that "attempt to commit a crime" meant the definition of "attempt" was applicable to all criminal attempts. In the present case, it is unclear whether the definition of "attempt to aid" was applicable to all criminal attempts or just accomplice liability. Even if we assume that a juror could have reasonably understood the definition of "attempt to aid" encompassed all criminal attempts, the instruction does not define "attempt" as requiring "purposeful intent" and a "substantial step." We, therefore, find the trial court failed to properly define attempt in the jury instruction.

Review is governed by R. 2:10-2, which provides in pertinent part:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]

In determining whether there is sufficient error to warrant reversal, however, a court also considers the strength of the evidence against the defendant. State v. Marrero, 148 N.J. 469, 497 (1997).

Similar to the facts in Smith, defendant in his taped statement, confessed that he "[brought] [Kasar] together with [Simpkins] with the purpose of [committing a robbery at the Citgo station]." He confessed he picked up Simpkins. He stated he drove the car. He verified he knew Simpkins had a knife. Although the statement falls short of an express confession of purposeful conduct, the record is replete with evidence showing defendant went to the Citgo station that night in order to commit a robbery. In fact, defendant acknowledged through counsel that a robbery had been committed.

Defendant's only asserted defense was renunciation of the crime. We are satisfied that the few self-serving statements defendant made during his taped statement to the police expressing his misgivings regarding the robbery are insufficient for a reasonable jury to conclude defendant renounced the robbery. Renunciation is an affirmative defense, requiring the defendant to prove by a preponderance of the evidence that:

[A]fter conspiring to commit a crime, [defendant] informed the authority of the existence of the conspiracy and his participation therein, and thwarted or caused to be thwarted the commission of any offense in furtherance of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of criminal purpose[.]

[N.J.S.A. 2C:5-2e.]

Defendant proffers no evidence to satisfy any of the statutory elements of renunciation. He neither informed the authorities, nor in any way thwarted the attempted theft. Accordingly, we are convinced that the court's failure to define attempt was not "clearly capable of producing an unjust result" given the overwhelming evidence of defendant's guilt and thus constituted harmless error. R. 2:10-2.

II.

Defendant asserts that the trial court's failure to provide the jury with a limiting instruction regarding the Citgo station's manager's testimony that defendant was fired a few weeks earlier because of missing money constituted plain error.

Other crime evidence is inadmissible to prove the defendant's criminal propensity. N.J.R.E. 404(b). Such evidence is, however, admissible to prove motive. State v. Cofield, 127 N.J. 328, 336 (1992). Pursuant to N.J.R.E. 105, if other-crime evidence is admitted, the trial court must provide a limiting instruction to the jury explaining precisely how the evidence may and may not be used. Id. at 341.

Specifically, the instruction must include sufficient reference to the factual context of the case to enable the jury to understand the proper use of the other crime evidence. Ibid. Here, evidence of the alleged missing money is clearly probative as to defendant's motive for robbing the Citgo station. However, the Citgo station manager only testified briefly that defendant was suspected of taking the money. The focus, and purpose, of the testimony was defendant's reaction to being fired.

In Marrero, supra, the Court found that while the jury instruction was clearly inadequate because it failed to include an anti-propensity instruction, the defect did not constitute plain error. Marrero, supra, 148 N.J. at 497. The Court found that in determining whether a defective instruction is sufficiently prejudicial to warrant a finding of plain error, a fact-specific inquiry is required. Ibid. Using this analysis, the Court found the error to be harmless, pointing to the overwhelming evidence of the defendant's guilt that was independent of the other-crime evidence. Id. at 496-97.

Similar to the facts in Marrero, there is substantial evidence of defendant's guilt that is independent of the other-crime evidence. Defendant confessed in a taped recording to taking all the necessary steps to commit the charged offenses. Additionally, the answers given by the station manager to questions concerning the missing money do not directly accuse defendant of theft and were fleeting:

Q: So how long did he last as an employee at the Ocean View Citgo?

A: Less than two days, about a day and a half.

Q: What happened?

A: We had an incident with money shortages and it was never found. So I had to let him go.

Q: When you let him go, how did he react?

A: That I didn't know, first, he said, he doesn't know what happened and I didn't know who he was and what I was doing and so forth. And I said, there's nothing I can do. This is what I have to do until the money is found so.

Lastly, while admissibility of the manager's testimony was contested below, it does not appear in the record that a limiting instruction was requested by the defense. In State v. Krivacska, 341 N.J. Super. 1 (App. Div. 2001), the defendant was charged with sexual assault against two different victims. Id. at 11, certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). The jury instruction failed to either state that the other-crime evidence could not be used to show propensity to commit the crime, or specifically for what the evidence could be used. Id. at 43. In finding harmless error, we found relevant the defense counsel's failure to request a limiting instruction, viewing the failure to raise the issue at trial to be a tactical maneuver. Id. at 43-44. We also noted that it did not appear the jury improperly considered the evidence, as it acquitted defendant of one of the charges. Id. at 43.

Similar to Krivacska, this error could have been corrected during trial had defendant's counsel requested a limiting instruction but is only being raised now on appeal. The overwhelming evidence of defendant's guilt, coupled with defense counsel's lack of request for a limiting instruction, satisfies us that the failure to provide a limiting instruction on the purported other-crime evidence constituted harmless error.

III.

Defendant argues that the trial court's failure to provide a limiting instruction regarding evidence of Simpkins's guilty plea constituted plain error. The guilty plea of a co-defendant is inadmissible as substantive evidence of a defendant's guilt. State v. Stefanelli, 78 N.J. 418, 430 (1979). The trial court, therefore, must provide a limiting instruction to the jury stating the guilty plea is only to be used to assess the credibility of that witness. Id. at 434. But the trial court's failure to do so does not necessarily constitute reversible error. Id. at 436-37. Rather, the prejudice that accrues must be weighed against the other evidence against the defendant to determine whether the omission was plain error. Id. at 436.

In Stefanelli, the prosecutor emphasized the substantive value of the co-defendant's guilty plea, stating:

Bruno burglarized his own home, it never happened, and yet a young man named Joseph Cicala pleaded guilty to conspiring to break, enter and commit larceny inside the Bruno home. [Defendants] said it never happened, you see. Mr. Cicala pleaded guilt to something that didn't happen. Ladies and gentlemen, isn't your intelligence being insulted by an argument like this?

[Id. at 426-27. (emphasis in original).]

Here, the questions asked of Simpkins placed no emphasis on the substantive value of Simpkins's guilty plea:

Q: Have you pled guilty to your involvement in that offense?

A: Yes.

Q: And do you have a plea agreement currently in place with the Cape May County Prosecutor's Office as a result of that plea?

A: Yes.

Q: Is that plea agreement that you will receive seven years in New Jersey State Prison as a result of your conspiracy to commit this robbery

A. Yes.

Q: -- with [defendant]?

A. Yes.

We are satisfied the trial court's failure to provide a cautionary instruction did not deprive defendant of a fair trial. Simpkins' complicity in the robbery was established independently by Simpkins' own testimony, which was tested by a thorough cross-examination. Additionally, the reference to Simpkins' guilty plea was fleeting, and the testimony added little to the State's substantial case against defendant. Accordingly, we find the absence of a limiting instruction to constitute harmless error.

IV.

In State v. Natale, 184 N.J. 458 (2005) (Natale II), our Supreme Court held that the top of the sentencing range, and not the presumptive term, is the maximum sentence a trial court can impose after finding and considering the relevant mitigating and aggravating factors. Id. at 487. Under this holding, the Court ordered a new sentencing hearing for every case that was on appeal at the time the decision was decided for the trial court to reevaluate whether elimination of the presumptive term would require a new sentence. Id. at 495-96. Defendant asserts that because his case was on appeal at the time Natale II was decided, he is entitled to a new sentencing hearing. We agree.

Defendant was sentenced for first-degree robbery and first-degree use of a juvenile to commit a crime. The sentence for a first-degree conviction is ten to twenty years. N.J.S.A. 2C:43-6(a)(1). The trial court imposed the statutory maximum of twenty years, finding three aggravating and no mitigating factors. Specifically, the aggravating factors found were: the risk defendant will commit another crime under N.J.S.A. 2C:44-1(3); defendant's extensive criminal record under N.J.S.A. 2C:44-1(6); and the need for deterrence under N.J.S.A. 2C:44-1(9).

Defendant also asserts that his sentence was excessive because the circumstances surrounding the robbery were insufficiently egregious to warrant the maximum sentence. He further contends his sentence was excessive because it was more than twice as long as the seven-year sentence of an equally culpable co-defendant. Defendant claims the defendants were equally culpable.

The Supreme Court reiterated the Natale II requirement for resentencing in State v. Nesbitt, 185 N.J. 504, 519 (2006). In Nesbitt, the trial judge, as here, found aggravating factors three, six, and nine applicable. Id. at 510 n.1. The Supreme Court reversed in part and remanded to permit re-sentencing. The Court stated:

Defendant received a mandatory extended term on Count 5 and was sentenced to nine years of incarceration. Because defendant's sentence on the extended term was set above the presumptive sentence applicable at the time to the extended-term range, the matter must be remanded to permit re-sentencing.

[Id. at 519.]

Defendant's sentences for armed robbery and employing a juvenile to commit an offense are reversed and the matter is remanded for a new sentencing hearing in accord with the new constitutional sentencing scheme established by Natale II and reiterated in Nesbitt. We take no position on defendant's proportionality claim but grant defendant leave to raise the issue before the trial court at his re-sentencing hearing. See State v. Roach, 146 N.J. 208, 231 (1996). Defendant's sentence for bail jumping is likewise remanded in accordance with Natale II and Nesbitt. Defendant was sentenced to five years, one year above the pre-Natale II presumptive sentence of four years for a third-degree crime. N.J.S.A. 2C:44-1f(1)(d).

 
Affirmed as to conviction; reversed and remanded as to sentence.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed 2d

694 (1966).

Cofield refers to Evid. R. 6, which was replaced by N.J.R.E. 105.

(continued)

(continued)

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December 1, 2006