STATE OF NEW JERSEY v. WILLIAM A. RIDLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6245-02T46245-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM A. RIDLEY,

Defendant-Appellant.

________________________________________________________________

 

Argued October 4, 2006 - Decided December 8, 2006

Before Judges Skillman, Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-10-2042-I.

Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Turner, of counsel and on the brief).

Jack J. Lipari, Assistant County Prosecutor, argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).

PER CURIAM

On October 10, 2000, the Atlantic County Grand Jury returned Indictment No. 00-10-2042-I, charging defendant, William A. Ridley and co-defendants, Clayton Eric Valentine and Charles G. Cottman, in eighteen counts. Defendant was named in thirteen counts of the indictment. He was charged with first-degree felony murder (count one), contrary to N.J.S.A. 2C:11-3a(3); first-degree murder (count two), contrary to N.J.S.A. 2C:11-3a(1) or (2); first-degree robbery (count three), contrary to N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery (count four), contrary to N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; two counts of second-degree possession of a weapon for an unlawful purpose (counts five and six), contrary to N.J.S.A. 2C:39-4a; second-degree conspiracy to possess a weapon for an unlawful purpose (count seven), contrary to N.J.S.A. 2C:39-4 and N.J.S.A. 2C:5-2; two counts of third-degree unlawful possession of a weapon (counts eight and nine), contrary to N.J.S.A. 2C:39-5b; third-degree hindering the apprehension of himself (count ten), contrary to N.J.S.A. 2C:29-3b(1); fourth-degree tampering with physical evidence (count twelve), contrary to N.J.S.A. 2C:28-6(1); and two counts of second-degree possession of a weapon by a convicted person (counts thirteen and fourteen), contrary to N.J.S.A. 2C:39-7.

In exchange for their cooperation at defendant's trial, Valentine and Cottman entered into plea agreements with the State. Valentine pleaded guilty to conspiracy to commit armed-robbery for which he received a seven-year sentence of imprisonment. Cottman pleaded guilty to hindering apprehension for which he received a five-year sentence of imprisonment.

On November 26, 2000, the judge dismissed the conspiracy to commit armed robbery, possession of a .22 caliber handgun for an unlawful purpose, conspiracy to possess a weapon for an unlawful purpose, and unlawful possession of a .22 caliber handgun charges. Defendant was tried alone before a jury on various dates between November 13 and December 4, 2002. On December 4, 2002, the jury returned a mixed verdict. The jury found defendant guilty of first-degree robbery, third-degree unlawful possession of a weapon, and third-degree hindering his own apprehension. The jury found defendant not guilty of the remaining charges. Defendant subsequently filed a motion to set aside the jury's verdict as "inconsistent." On May 15, 2003, the judge denied defendant's motion concluding that any inconsistency in the jury's verdict was not a ground for reversal under controlling case law and that there was sufficient evidence presented to support defendant's convictions. After defendant's sentencing on May 15, 2003, the judge granted the State's motion and dismissed the counts charging defendant with the unlawful possession of two handguns by a convicted person, which had been bifurcated from this trial for trial on a later date.

On May 15, 2003, defendant was sentenced on first-degree robbery to a mandatory extended term of incarceration of fifty years, pursuant to N.J.S.A. 2C:44-3d, with a Graves Act, N.J.S.A. 2C:43-6c, period of parole ineligibility of twenty-five years. On third-degree unlawful possession of a weapon (handgun), defendant was sentenced to five years of incarceration, concurrent with the sentence on robbery. On the offense of hindering apprehension, defendant was sentenced to five years of incarceration, to be served consecutively to the sentence imposed on robbery. Defendant appeals his conviction and sentence. For the reasons that follow, we reverse and remand for a new trial.

On June 27, 2000, Officer Bridget Ingram was dispatched via a 911 call to a reported shooting in the Venice Park section of Atlantic City. She arrived at the scene and found Eric Hose lying on the ground, bleeding profusely from a head wound, gargling blood, and gasping for air. Hose was taken to a local hospital, where he later died from a single gunshot wound to the head. According to the medical examiner, Hose also sustained swollen lips and abrasions to the body, consistent with being beaten before he was killed. The next day, the police were able to trace the 911 call to Erikka Teasley who led them to Kwashon Anderson and Carla Cutler.

Anderson testified that on the evening of June 27, 2000, he was at Hose's house playing video games. At approximately 9:00 p.m., they decided to visit Teasley and on the way to her house ran into Cutler. Anderson, enroute to Teasley's house, passed three men walking a dog, Valentine, Cottman and a man who he did not know. Thereafter, Hose, Anderson, and Cutler were standing and talking on Teasley's porch, when Hose decided to go home for a sweatshirt. The others went inside Teasley's house. Approximately sixty seconds later, they heard a gunshot outside.

Within moments, Anderson looked out of a window and saw Hose lying on the ground. A "skinny brown skinned male" in a red shirt was going through his pockets. He did not believe the man was Cottman because of his hairstyle, but could not tell for sure if he was Valentine. Anderson testified that he did not observe any abnormal swelling of Hose's lips when he saw him earlier on the night of the shooting.

Cutler testified she did not remember seeing any men walking a dog, but that she heard a shot and when she looked out the window, she saw a man wearing a red tee shirt, under a black shirt, going through Hose's pockets. Cutler was not able to identify anyone from the photo line-up shown to her by the police.

Several days after the shooting, on July 5, 2000, the police received a tip that the murder weapon could be found at Stacy Alford's house. Alford testified that she received a call from Valentine who had visited with her the night of the shooting. Later that evening, he called her and told her that he had left a book bag on her front porch and asked her to put it inside her house. The next day, Valentine, wearing a red shirt, showed up with Cottman and asked for the book bag. Valentine later told Alford he put it in one of her closets.

On July 5, 2000, Alford consented to a search of her home, where a red bag was found in Alford's closet. Inside the red bag was a book bag, which contained ammunition and two handguns, a .22 caliber and the .38 caliber, which was determined to be the murder weapon. The police asked Alford to telephone Valentine in their presence. Valentine admitted during the call that he put the handguns in the book bag.

The State's version of the circumstances surrounding the shooting came from the testimony and statements of Valentine and Cottman, and from defendant's girlfriend, Sharon Phillips, all of whom testified pursuant to plea agreements. About 4:00 p.m., on June 27, 2000, Valentine left his job and went over to Cottman's house, bringing with him a "book bag," in which he carried ammunition and two handguns, a .38 caliber revolver and a .22 caliber handgun. The .38 caliber revolver was loaded. When Valentine arrived at Cottman's house, Cottman and defendant, who was wearing a red shirt, were there. The three played video games, smoked, and drank alcohol. Around 10:00 p.m., Cottman, Valentine, and defendant left Cottman's house to walk Cottman's dog and to visit one of Valentine's friends. They left the book bag and handguns inside Cottman's house. As they walked toward the friend's house, Valentine, Cottman, and defendant saw Hose, Cutler, and Anderson walking in their direction. According to both Valentine and Cottman, when defendant saw Hose walking nearby, defendant commented to them that he was going to rob Hose.

At trial, Valentine acknowledged that he was not friendly with Hose because of an altercation he had with Hose three weeks earlier when Hose objected to Valentine robbing someone on Hose's mother's front porch. According to Valentine, the altercation consisted only of angry words spoken by Hose. Defendant went back into Cottman's house, took the .38 caliber handgun from Valentine's book bag, left Cottman's house, and began to jog in the direction that Hose, Cutler, and Anderson had gone. Valentine and Cottman continued their walk in a direction away from where defendant was heading, when they heard a gunshot, but continued on their walk.

According to Valentine, Cottman and he ended their walk, separated, and Valentine returned to his own house. Valentine was in his house for about twenty minutes when he received a telephone call from Cottman, who indicated that defendant wanted to speak with him. Valentine then went to Cottman's house, where he met with Cottman and defendant. Valentine testified that defendant gave him the book bag containing the two handguns and stated to Valentine, "I can't believe I just shot him." Valentine then took the book bag, left Cottman's house, and went to Alford's house, where he left the book bag on the porch. When Valentine returned to Cottman's house, defendant was gone. Later that night, Valentine and Cottman went to Alford's house. Valentine went into her house, took the book bag, and hid it within a duffel bag in a closet.

According to Valentine, two days after the shooting, Cottman was hosting an outside birthday party for his child, when defendant showed up. Cottman indicated in his recorded statement that defendant "said he was sorry" and acknowledged that he had erred by shooting Hose. Cottman stated that he wanted defendant to leave the party because there were police officers in the area investigating the shooting.

Defendant was arrested on July 11, 2000, in Pleasantville, while in the company of his girlfriend, Shareen Phillips, who had arrived in New Jersey on July 8 or 9, 2000, from Georgia. On July 10, 2000, Phillips contacted defendant. The next day the two went to meet a friend of Phillips, when the "house was surrounded by the detectives and cops and they came in there and they took [defendant]." Phillips testified that she was arrested by the police on July 13, 2000, two days after defendant's arrest, for violating probation. At that time, Phillips gave the police a statement, in which she indicated that defendant confessed to her that he was the person who shot Hose. Phillip's version was that defendant told her he was at Cottman's house when he was told Hose was outside. He then put on a mask, left the house to rob Hose, and shot him in the process.

Valentine initially told the police on June 30, 2000, prior to his arrest, that he knew nothing about the shooting. Following his arrest on July 5, 2000, Valentine told the police that defendant was the one who shot Hose. On December 8, 2000, Valentine entered into a plea agreement, pleading guilty to conspiracy to commit robbery based upon his knowledge that defendant was going to use his handgun to commit the armed robbery of Hose. Prior to trial, in August 2002, Valentine signed a certification recanting his allegations implicating defendant in the shooting, and certifying instead that defendant had "nothing to do with this crime, nor was he there." In addition to absolving defendant, Valentine admitted telling "Bam," Cottman's brother, that he, Valentine, had shot Eric Hose. Robert Rector, Cottman's brother, testified that Valentine confessed to him and told him he planned to blame defendant for the shooting. At trial, Valentine disavowed his recantation, testifying that he signed the certification because he had been threatened by another inmate in jail. There were no fingerprints on the gun found at Alford's house nor was there any forensic evidence at the scene to implicate either defendant or Valentine.

Cottman, when he initially met with police on June 30, 2000, did not give a statement implicating defendant in the shooting. Following his arrest, Cottman gave a statement to police on July 6, 2000, in which he identified defendant as the person who took Valentine's handgun, departed to "rob" Hose, and who returned from the shooting scene shortly after Cottman heard a gunshot. At trial, Cottman was an uncooperative witness for the State. As a result, the State utilized Cottman's prior statements to support its case.

On September 21, 2000, Phillips was sentenced to a probationary term for her probation violations. Phillips testified for the State about the confession that defendant made to her while she was awaiting sentencing. She testified that she was "hoping" that the statement she gave to the police would help her at sentencing.

Defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED BY FAILING TO CHARGE THE JURY WITH THEFT AS A LESSER-INCLUDED OFFENSE OF ROBBERY.

POINT II

THE JUDGE ERRED BY FAILING TO CHARGE THE JURY ON ACCOMPLICE LIABILITY, RESULTING IN AN INCONSISTENT VERDICT.

POINT III

THE DEFENDANT'S SENTENCE MUST BE REMANDED, PURSUANT TO STATE V. FRANKLIN, AS IT WAS UNCLEAR WHETHER THE JUDGE IN THIS MATTER, NOT THE JURY, FOUND THAT THE DEFENDANT WAS ELIGIBLE FOR AN EXTENDED TERM GRAVES ACT SENTENCE.

POINT IV

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

We reverse defendant's convictions because we are convinced that the trial court's failure to sua sponte charge the lesser included offenses of unarmed robbery, theft and attempted theft may have led the jury to a result it otherwise may not have reached. We, therefore, do not reach the other arguments posed by defendant.

I.

Defendant argues that the court erred when it failed to instruct the jury on unarmed robbery, N.J.S.A. 2C:15-1a, and theft, N.J.S.A. 2C:20-3, as lesser included offenses of the crime of armed robbery, N.J.S.A. 2C:15-1b. In this case, defendant's trial counsel did not request an instruction on theft or unarmed robbery, nor did he object to the jury charge that was given. Accordingly, a reversal is not required unless the court's failure to issue the instruction, sua sponte, amounted to plain error that was clearly capable of producing an unjust result. R. 2:10-2.

In State v. O'Carroll, 385 N.J. Super. 211, 223-24 (App. Div. 2006) (quoting State v. Muhammad, 182 N.J. 551, 577 (2005)), we stated that, "[n]o defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense." In cases involving a trial court's mistaken failure to instruct the jury on lesser-included offenses, a "defendant's conviction cannot stand if the mistake 'was clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Jenkins, 178 N.J. 347, 361 (2004) (quoting State v. Brims, 168 N.J. 297, 306 (2001) (internal quotation marks and citations omitted)).

We noted in State v. Simms, 369 N.J. Super. 466, 471 (App. Div. 2004):

It is virtually axiomatic that a defendant is entitled to the benefit of a charge explaining lesser-included offenses. The well-established rule is that if a charge on the lesser-included is requested, it must be given if rationally based on the evidence, and if not requested, must nevertheless be given if clearly indicated by the evidence.

The concern is that if the jury believes that a defendant is guilty of something, but only has one option, it will choose that option rather than let an obviously guilty defendant go free. Our Supreme Court noted this danger in State v. Sloane, 111 N.J. 293, 299 (1988) (quoting Keeble v. U.S., 412 U.S. 205, 212-13, 93 S. Ct. 1993, 1997-98, 36 L. Ed. 2d 844, 850 (1973)), stating, "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve doubts in favor of conviction." (emphasis in original).

In State v. Thomas, 187 N.J. 119 (2006), the Supreme Court reaffirmed the principle "that a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Thomas, supra, 187 N.J. at 132 (quoting Jenkins, supra, 178 N.J. at 361). Whether a lesser-included-offense instruction is "appropriate" in a particular case depends upon two factors. Thomas, supra, 187 N.J. at 131.

First, a lesser-included offense of the crime actually charged in the indictment must be a lesser-included offense meeting the statutory definition of an included offense set out in N.J.S.A. 2C:1-8d. Ibid. This first requirement is satisfied here because theft is a statutory element of the crime of robbery, which was charged in the indictment. A theft or attempted theft is required for a robbery conviction. State v. Farrad, 164 N.J. 247, 257 (2000); see N.J.S.A. 2C:15-1a (listing acts that amount to robbery if committed "in the course of committing a theft"). Accordingly, both theft and attempted theft are lesser-included offenses of the crime of robbery under N.J.S.A. 2C:1-8d because both are "established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8d(1). Likewise, pursuant to N.J.S.A. 2C:15-1b robbery is elevated from a second-degree crime to a first-degree crime "if . . . the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon." On the other hand, an unarmed robbery is proved, "if, in the course of committing a theft, [the actor]: (1) [i]nflicts bodily injury or uses force upon another." N.J.S.A. 2C:15-1a(1). Thus, second degree unarmed robbery is a lesser included offense of armed robbery.

The second factor underlying a determination of whether a trial court has an obligation to instruct the jury on a lesser-included offense sua sponte is whether the lesser included offenses are "clearly indicated" by the evidence. The "clearly indicated" standard is met if the evidence of the lesser included offense "is jumping off the page." State v. Denofa, 187 N.J. 24, 42 (2006). And, the question is whether the "facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361. The inquiry necessarily requires a separate analysis of each lesser included offense.

We repeated above the trial court's summary of the evidence that was adequate to support each of defendant's convictions under State v. Reyes, 50 N.J. 454, 458-59 (1967) and addressed defendant's claim that inconsistency in the verdicts warranted a new trial. See State v. Banko, 182 N.J. 44, 54-55 (2004). In addition to providing adequate support for the verdicts the jury returned, however, the evidence also clearly indicates a basis for acquittal of armed robbery and convictions on theft, attempted theft or unarmed robbery.

The crimes of theft and attempted theft are clearly indicated by the eyewitness testimony. The only witnesses who observed any of the criminal conduct were witnesses who were not implicated in this crime. The jurors could have found the testimony of these unbiased witnesses to be the most persuasive evidence the State presented. They testified that they heard a shot, got on the floor out of concern for their safety and later got up to look out the window to see what had happened. They saw one man, who at least one of them described as wearing clothes of the color worn by defendant that night. That man was going through Hose's pockets.

While these eyewitnesses heard a shot, what they saw was a theft or attempted theft. Because of the conflicting and inconsistent accounts of the events given by the remaining witnesses, many of whom had reasons for giving untruthful testimony, the jury could have concluded that the only crime by defendant established beyond a reasonable doubt was the crime these witnesses actually saw, which was a theft or attempted theft. The lapse of time between the eyewitnesses' hearing the shot and seeing a man of defendant's description could have led the jury to conclude that the State's evidence was inadequate to establish defendant's role in anything other than the theft or attempted theft observed by these witnesses. In other words, there was a clear basis for the jurors to conclude beyond a reasonable doubt that defendant was picking Hose's pockets but, at the same time, to entertain a reasonable doubt about his role in the shooting or the assault that led to Hose's death and facial and bodily injuries.

The possibility of defendant's acquittal on armed robbery and conviction of robbery was also clearly indicated by evidence of Hose's facial and bodily injuries, testimony that defendant said he wanted to rob Hose, Valentine's control over firearms that he kept in a backpack and Valentine's feud with Hose. On that basis, the jurors could have concluded beyond a reasonable doubt that defendant participated in a forcible robbery yet could have had a reasonable doubt about defendant's involvement in the shooting.

A similar situation occurred in State v. Villanueva, 373 N.J. Super. 588, 595-96 (App. Div. 2004), when this court reversed the trial court because it failed to instruct the jury, sua sponte, on the lesser-included crime of attempted theft, and the jury subsequently found the defendant guilty of the greater crime of second-degree robbery. The defendant had been discovered in a person's automobile, attempting to steal the car's radio, and he reacted violently to the car owner's attempt to capture him. Id. at 591-95. We reversed the robbery conviction and remanded the matter for a new trial, determining that the trial court's failure to instruct the jury, sua sponte, concerning attempted theft constituted plain error that was clearly capable of having produced an unjust result. Id. at 595-96. In doing so, we agreed with the defendant that, "by failing to charge the lesser crime, the [trial] court in essence coerced the jury into finding defendant guilty of robbery as the only means for holding him legally accountable for attempting to steal [the owner's] car radio." Id. at 595.

Our reasoning in Villanueva is applicable here. The trial court's failure to instruct the jury, sua sponte, on the lesser-included offenses of unarmed robbery and theft may be viewed as having "coerced" the jury into returning a guilty verdict on the only property-offense charge on which they were instructed and for which there was a choice on the jury verdict form.

We are likewise convinced that it is also necessary to reverse defendant's convictions of unlawful possession of a weapon, and hindering his own apprehension. The jury was instructed under each charge that, in order to convict, the jury had to find that defendant at some time possessed Valentine's .38 caliber handgun.

If the jurors believed the testimony and statements of Valentine, Cottman, and Phillips, they could have found that defendant possessed the handgun based upon that evidence. The problem is that the jury charge did not include an instruction on unarmed robbery or theft.

Question six of the jury verdict form asked the jury,

whether the defendant, WILLIAM RIDLEY, on or about the 27th day of June, 2000, with the purpose to hinder his own apprehension . . . for the crime of Murder, did suppress, by way of concealment or destruction of any evidence of the crime, or did tamper with a .38 caliber handgun, regardless of its admissibility in evidence, which might aid in his discovery or apprehension, or the lodging of a charge against him, (Hindering Apprehension), how do you find the defendant?

Had the jury been instructed and reviewed a jury verdict sheet choice on the lesser included offenses of armed robbery and theft, such an instruction would have broached the possibility that defendant was not the shooter and thus did not possess the handgun or hinder his own apprehension by way of suppression, concealment or destruction of evidence.

Because the trial court's failure to sua sponte charge the jury on the lesser included offenses of unarmed robbery, theft, and attempted theft had the clear capacity to produce an unjust result, we reverse defendant's convictions on all charges and remand the matter to the trial court for a new trial.

II.

As we have reversed defendant's conviction for the court's failure to sua sponte charge and provide for the jury's consideration the lesser included offenses of unarmed robbery, theft and attempted theft, we need not address the remaining issues raised on this appeal. However, we add the following comments on accomplice liability:

Defendant contends that the trial court erred in failing to instruct the jury on accomplice liability, thereby causing the jury to reach an inconsistent verdict. Defendant suggests that because Valentine testified that he pled guilty to conspiracy to commit robbery, the jury may have imputed guilt to defendant because it was not informed of the elements of conspiracy or accomplice liability.

The judge suggested that if such an instruction had been given, defendant might well have been found guilty as an accomplice to felony murder or murder.

We are convinced that in the context of this trial, the court's failure to charge accomplice liability, even if error, was harmless because it was not clearly capable of having produced a harmful result and because it was not requested by defense counsel. Nevertheless, at the retrial, the court should consider an instruction on accomplice liability, if the evidence supports the giving of an accomplice liability charge and if it is requested by counsel. See Thomas, supra, 187 N.J. at 131; State v. Roach, 146 N.J. 208, 223 (1996); Cannel, New Jersey Criminal Code Annotated, comment 7 on N.J.S.A. 2C:2-6c (2006).

Reversed and remanded for a new trial.

 

Defendant's brief argues that theft should have been charged as a lesser included offense. At oral argument, defense counsel also urged that unarmed robbery, as an additional lesser included offense, should have been sua sponte charged by the court.

"Conversely, a trial 'court has no duty to instruct the jury sua sponte on an included offense charge if the evidence does not clearly indicate or warrant such a charge.'" Thomas, supra, 187 N.J. at 132 (quoting State v. Savage, 172 N.J. 374, 401 (2002)).

Although not specifically argued by counsel, our review of the record does not reveal any definitive evidence of specific property having been taken from defendant, and at oral argument, neither counsel was able to refer us to such evidence in the record. We are, therefore, of the view that attempted theft is implicated as well. See N.J.S.A. 2C:5-1; N.J.S.A. 2C:20-3a.

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A-6245-02T4

December 8, 2006