STATE OF NEW JERSEY v. TYSEAN CLARKE

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0382-06T50382-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYSEAN CLARKE,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 6, 2007 - Decided

Before Judges C.S. Fisher and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Somerset County, Indictment No. 04-08-0558.

Muhammad Ibn Bashir, attorney for appellant.

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant Tysean Clarke was found guilty of second-degree conspiracy to commit robbery, in violation of N.J.S.A. 2C:5-2a, N.J.S.A. 2C:15-1a(2), and first-degree armed robbery in violation of N.J.S.A. 2C:15-1b. After defendant's motion for a new trial was denied, the trial judge sentenced him to a term of imprisonment of sixteen years on the armed robbery conviction with an 85% parole disqualifier under the No Early Release Act (NERA) and an eight year term of imprisonment on the conspiracy conviction. Both sentences were to run concurrent to each other and concurrent to a sentence defendant was serving on other charges. The appropriate statutory penalties, as well as restitution in the amount of $175, were also imposed.

Defendant raises the following points for our consideration.

POINT I

TESTIMONY REGARDING CO-DEFENDANT'S STATEMENTS OFFERED AT TRIAL WITHOUT CALLING THAT PERSON AS A WITNESS ARE HEARSAY AND A VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHTS.

POINT II

THE COURT BELOW ERRED IN NOT CHARGING THEFT AS A LESSSER-INCLUDED OFFENSE.

POINT III

THE COURT BELOW SUBMITTED AN IMPROPER CHARGE OF ACCOMPLICE LIABILITY TO THE JURY DENYING THE DEFENDANT A FAIR TRIAL.

POINT IV

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THAT TRIAL COUNSEL'S PERFORMANCE WAS INADEQUATE AND SUBSTANTIALLY PREJUDICIAL TO THE DEFENDANT.

After carefully considering these contentions in light of the record and applicable legal standards, we reverse.

The evidence at trial revealed that on June 24, 2004, Nicole Hoffman and Tonya Wood were working at the Ulta cosmetics store in Watchung. At approximately 9:40 p.m., Wood went outside to smoke a cigarette and Hoffman was working at the computer in the reception area. She heard Wood come back into the store and believed she had locked the door. However, shortly thereafter, Hoffman thought she heard someone running through the store.

As she looked up from her work, a man wearing a mask and holding a gun ran towards her, told her to get down on the floor, and then began to drag her toward the front of the store where a safe was located. As she was being dragged, Hoffman saw two other men run past her toward the rear of the store.

The armed man demanded Hoffman open the safe, which she did. She noticed that the handgun made a rattling noise as the man waived it, and she thought to herself that it could be fake. One of the other men came to the safe and together the two men removed all the money. The men then asked Hoffman if the store had a video surveillance system, and, when she indicated it did, the men walked her to the back office where the system was located. There, they took the VCR tape out of the surveillance recording system and ripped out the phone and fax lines from the wall.

The men handcuffed Hoffman and Wood to a filing cabinet and left. Hoffman was able to place a new tape in the surveillance system and started it recording again. She was able to call the police from her cellphone.

Police Officer Andrew Hart, Detective William Kelly, and Detective Sergeant Timothy Wenzel of the Watchung Police Department were among the first officers at the scene. Kelly was able to free Hoffman and Wood from their handcuffs and the two women were transported to police headquarters to give formal statements. The door to the Ulta store revealed no signs of forced entry and, when Wood indicated she could not remember if she locked the front door after her cigarette break, the police began to suspect she was involved in the robbery.

During her interview, Wood indicated she had called Troy Keets to come and pick her up from the police station. When he arrived, Kelly spoke to him and took a taped statement from him. Keets denied any involvement in the robbery. Kelly, however, played that tape for Hoffman who became visibly upset when she heard Keets voice, which she identified as the voice of one of the robbers. Kelly confronted Wood who continued to deny her involvement in the robbery.

Kelly then testified about events that occurred approximately one week after the robbery.

Q. What did [Wenzel] instruct you to do at that point?

A. He advised me to respond back to police headquarters. There has been a break in the case.

. . . .

Q. What did he brief you on?

A. He advised me that a Captain in the Newark Police Department had contacted him and received information that stated that Tonya Wood was involved in this robbery.

Kelly then testified that he and others brought Wood back to police headquarters, advised her of her Miranda rights, and took a formal statement from her.

Q. Based on the statement that you received from Miss Wood at that point, what did you do?

A. We contacted the Prosecutor's Office . . . . We now had names associated with the robbery.

. . . .

Q. Who were those individuals you were looking for now?

A. At that point we were looking for Mr. Oshea Clarke, his brother Mr. Tysean Clarke, and Mr. Troy Keets.

. . . .

Q. After you obtained the statement from Oshea Clarke, were any attempts made to locate Tysean Clarke?

A. Yes.

Defense counsel did not object to any of this testimony or to similar testimony from Wenzel describing how the investigation progressed.

After testifying that Oshea Clarke and his father both tried to "reach[] out" for defendant, Kelly described defendant's surrender later that evening and his formal statement to the police.

In that statement, defendant acknowledged being "involved" in the "armed robbery at the Ulta store." Defendant admitted that Keets had a "plastic handgun" and handcuffs, that he and the others took Wood's car to the store, and that Wood had "pre-arranged" to have the door of the store unlocked. Defendant denied knowing who had the plastic gun during the robbery, who took the money from the safe, and claimed that after entering the store with the other two men he did not know what happened. Defendant claimed he left the store "[c]ause [he] didn't see nobody," and returned to the car alone. Defendant acknowledged splitting $1200 from the robbery with the others.

The State rested after Kelly's testimony and defendant called no witnesses. In his opening statement, defense counsel had acknowledged defendant's presence at the scene and his participation, albeit at the last minute, in a common scheme with the others. However, defense counsel told the jury what occurred was a "theft," not an armed robbery, because no weapon was involved, and not a robbery because "the requisite force[] [was not] used." At the charge conference, defendant requested that theft be charged as a lesser-included offense. Concluding, "[T]here is nothing here to indicate that this is a simple theft," the judge declined to give the charge.

After summations, the judge first provided instructions on the two theories of vicarious liability alleged by the State -- that defendant conspired with Keets to commit armed robbery, pursuant to N.J.S.A. 2C:2-6b(4), or that defendant was Keets' accomplice, pursuant to N.J.S.A. 2C:2-6b(3). As to the latter, however, the judge read only a portion of Model Jury Charge 2.6, Charge #2. Thereafter, he charged the jury as to the substantive offenses of robbery in the first and second degree, and conspiracy. Defense counsel did not object to the charge.

During deliberations, the jury posed a question regarding the robbery charge versus the armed robbery charge as set forth on the verdict sheet. It asked, "Assuming the defendant found out about the gun after entering the store, is he, too, considered armed with, used or threatening the use of a deadly weapon?" After discussion with the attorneys, the judge responded to the jury

Interesting question. The short answer is it depends. It depends on what you find the facts to be . . . . [I]t really depends on when you decide that he found out about the gun, and whether after that point he was further involved in the course of committing a theft . . . .

. . . .

So, obviously, it's going to be up to the jury as to how you find the facts to be . . . . [J]ust reading into this question, an[d] if I am wrong, you obviously will tell me I am wrong, but reading into the question -- it could be a situation where you find that the defendant was involved in a conspiracy to commit a robbery, not realizing that the guy had a gun . . . . On the other hand, you can decide that he was involved in the conspiracy to commit armed robbery, and it's up to you again . . . .

It can be a situation that you decide that he became aware of the gun . . . after he entered the store. At what point? . . . . [T]hat will have a bearing on your decision as to whether or not he was involved in furthering of the armed robbery versus a robbery.

Twelve minutes later, the jury returned its guilty verdicts. It found defendant guilty of first degree robbery, answering in the affirmative the specific interrogatory as to his use of a deadly weapon. It also found defendant guilty of conspiracy, specifically concluding defendant's purpose was to facilitate the commission of a robbery, not an armed robbery.

In Point III, defendant contends that the charge on accomplice liability was insufficient because it failed to adequately explain to the jury how it could find defendant guilty of the lesser charge of robbery in the second-degree even if it concluded his co-defendants were guilty of committing robbery in the first degree. We agree.

As the Supreme Court noted in State v. Savage, 172 N.J. 374 (2002), "When a prosecution is based on the theory that a defendant acted as an accomplice, the trial court is required to provide the jury with understandable instructions regarding accomplice liability." Id. at 388. Here, the jury was charged as to the lesser included offense of second-degree robbery. As we noted in State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), when the jury is charged as to accomplice liability in the context of lesser-included offenses, such circumstances require the court "to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Id. at 528 (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).

We consider the judge's charge on accomplice liability in its entirety. We agree with the State that the charge accurately conveyed to the jury the necessity of finding defendant shared "the purpose of promoting or facilitating the commission of the substantive offense" with Keets in order to find him guilty as an accomplice. State v. White, 98 N.J. 122, 129 (1984).

The judge, however, did not continue to follow the format of Model Jury Charge N.J.S.A. 2C:2-6, Charge #2, which was specifically intended to address the concerns raised in Bielkiewicz. See Model Jury Charge N.J.S.A. 2C:2-6 n. 1 (Revised, 5/22/95). He omitted the following relevant portion,

If, however, you find the defendant not guilty of acting as an accomplice of X on the specific crime(s) charged, then you should consider whether the defendant did act as an accomplice of X but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment.

Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his/her own state of mind and not on anyone else's.

Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of_________________________. I will now explain the elements of that offense to you. (Here the court may tell the jury what view of the facts could lead to this conclusion).

In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his/her own state of mind and no one else's.

Therefore, in order to find the defendant guilty of the lesser included offense(s) of _________________, the State must prove beyond a reasonable doubt:

1. That X committed the crime(s) of _____________________, as alleged in the indictment, or the lesser included offense of____________________________.

2. That this defendant solicited X to commit {lesser included offense} and/or did aid or agree or attempt to aid him/her in planning to commit {lesser included offense}.

3. That this defendant's purpose was to promote or facilitate the commission of {lesser included offense}.

4. That this defendant possessed the criminal state of mind that is required for the commission of {lesser included offense}.

If you find that the State has proven each one of these elements beyond a reasonable doubt, then you must find the defendant guilty. If on the other hand you find that the State has failed to prove one or more of these elements beyond a reasonable doubt, then you must find the defendant not guilty. As I have previously indicated, your verdict(s) must be unanimous. All twelve jurors must agree as to guilty or not guilty.

[Emphasis added.]

The judge did not otherwise incorporate these underlying principles in his charge.

In Savage, the Court noted "that to impart [the] basic notion to the jury" regarding different levels of culpability and lesser-included offenses, "'the jury need[s] a detailed explanation of accomplice liability theory tied to the facts.'" Savage, supra, 172 N.J. at 389 (quoting State v. Cook, 300 N.J. Super. 476 (App. Div. 1996)). Here, the trial judge did not explain in abstract terms, much less in carefully tailored factual terms, how defendant could be found guilty of a specific lesser-included offense as an accomplice even if the jury determined Keets was guilty of first-degree robbery.

Since defendant did not object to the charge, we must determine whether the alleged error was "plain error" that is, was the error "clearly capable of bringing about an unjust result?" R. 1:7-2; R. 2:10-2. While this is a strict standard, we have recognized that "erroneous jury instructions on matters material to a jury's deliberations are ordinarily 'presumed' to be reversible error" and are "poor candidates for rehabilitation as harmless." Cook, supra, 300 N.J. Super. at 489 (quoting State v. Brown, 138 N.J. 481, 522 (1994)).

The evidence against defendant was substantial, but it was clearly capable of supporting different, reasonable interpretations of his involvement in the events at the store. The question posed by the jury during deliberations supports this conclusion. And, in responding to the jury's question, the judge attempted to explain how defendant's knowledge of the plastic gun, and when he acquired that knowledge, could impact the jury's decision regarding the two degrees of robbery. But, those instructions simply did not place the issue in the context of accomplice liability.

With appropriate instructions, the jury may have found that defendant was an accomplice to Keets, but that he did not know any force or the plastic gun was going to be used during the robbery, and, hence was only guilty of a second degree robbery. Hoffman could not identify defendant, and it was clear from her testimony that only one man, presumably Keets, had the plastic gun and directly used force against her, and only two of the three men removed the money from the safe. Defendant's statement to the police about his knowledge of the gun and its use during the robbery -- and there was no other evidence adduced by the State on this point -- was less than clear. In short, the evidence could have supported the jury's conclusion that defendant's "state of mind and level of participation warranted convictions of lesser crimes than those committed by one or more of his compatriots." State v. Phillips, 322 N.J. Super. 429, 443 (App. Div. 1999).

Having concluded that defendant's conviction must be reversed, we need not consider the other arguments he raises. However, since we anticipate the matter may be retried, we choose to address Points I and II for future guidance.

We agree with defendant that the testimony of Kelly and Wenzel regarding the actions they took after taking a statement from Wood -- they sought and arrested the defendant, his brother, and Keets -- was clearly inadmissible hearsay and the prosecutor's comments in his opening statement only served to highlight the objectionable testimony. We disagree with the State's contention that the testimony was similar to that permitted in State v. Bankston, 63 N.J. 263 (1973). There, the State was permitted to allow the officer to testify that he performed certain actions based "upon information received," id. at 272, thus, rebutting any claim that the police acted arbitrarily. See also State v. Branch, 182 N.J. 338, 352 (2005) (holding testimony that defendant's photo was placed in photo array based "upon information received" suggests defendant's guilt and is only permitted to rebut a suggestion the police acted arbitrarily or with ill motive).

The situation here is quite different. Both officers testified about actions they took -- swearing out a warrant for defendant, trying to locate him and arrest him -- immediately after they arrested Wood, read her rights to her, and took a formal statement from her about the robbery. From the indictment, the jury also knew Wood was alleged to be defendant's co-conspirator.

The only inference to be drawn by the jury was that defendant had been identified by Wood, the inside person involved in the robbery, as someone who committed the crime with her. Thus, it is even more prejudicial to defendant than the suggestion that some inculpatory information came from some anonymous source. Therefore, at any future trial, such testimony must be significantly limited and should not be admitted unless it serves to rebut a claim that the police acted unfairly in investigating or arresting defendant.

Lastly, although we cannot divine how the testimony may evolve at any future trial, we have no hesitancy in indicating that based upon the testimony at this trial, the judge appropriately denied defendant's request to instruct the jury on theft as a lesser-included offense of robbery. In State v. Sloane, 111 N.J. 293 (1988), the Supreme Court described the trial court's obligation in this regard.

In general, when a lesser-included offense charge is requested by a defendant, the trial court is obligated, in view of the defendant's interest, to examine the record thoroughly to determine if there is a rational basis in the evidence for finding that the defendant was not guilty of the higher offense charged but that the defendant was guilty of a lesser-included offense.

[Id. at 299.]

We fail to see how the evidence could reasonably support the conclusion that defendant committed a theft.

 
Reversed.

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

Though indicted separately, defendant was charged in count one of the indictment with conspiring with Oshea Clarke, Troy Keets, and Tonya Wood to commit armed robbery.

(continued)

(continued)

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A-0382-06T5

June 21, 2007