STATE OF NEW JERSEY v. KYE CROSBY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6430-05T46430-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KYE CROSBY,

Defendant-Appellant.

___________________________________

 

Submitted September 18, 2007 - Decided November 1, 2007

Before Judges Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment

No. 05-01-0132.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Stephen A. Caruso, Assistant

Deputy Public Defender, of counsel and on the

brief).

Anne Milgram, Attorney General, attorney for

respondent (Johanna Barba Jones, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Kye Crosby was indicted by a Monmouth County grand jury and charged with first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4b; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree use of a juvenile to commit a crime, N.J.S.A. 2C:24-9a. A jury found defendant guilty of first-degree robbery, and acquitted him on the rest of the charges. The court sentenced defendant to a term of ten years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed the mandatory fines and penalties.

After reviewing the record before us, and in light of prevailing legal standards, we reverse and remand this matter for a new trial. We are satisfied that the trial court committed reversible error by: (1) failing to instruct the jury on accomplice liability; (2) excluding second-degree robbery as a lesser-included offense in the jury verdict sheet; and (3) failing to give the jury limiting instructions concerning the testimony of a juvenile witness called by the State.

I

Dahreo Ramkhalawan testified that on September 25, 2004, at approximately 11:00 p.m., he was assaulted and robbed by "two guys" who struck him in the back of the head; kicked, stomped and beat him, while he laid helpless on the ground. Ramkhalawan described his attackers as males: one African American and the other Caucasian. After the beating stopped, he "felt an object on [his] temple . . . [and] kind of . . . brushed it away." His assailants then told him that the "object" was a gun and demanded money from him. In direct response to the prosecutor's question, Ramkhalawan identified defendant as the person who put the gun to his temple.

Defendant's alleged accomplice, a juvenile identified as J.B., testified as a witness for the State. He was seventeen years old at the time of the robbery, and therefore subject to the jurisdiction of the Family Part. He was adjudicated delinquent after he pled guilty to one count of first-degree robbery.

J.B. testified at defendant's trial that, pursuant to his plea agreement with the State, he was sentenced to two years detention in a juvenile facility. The State also agreed to dismiss other unrelated charges and to recommend that he receive a one-year term for a separate third-degree offense, to be served concurrent with his two-year term.

J.B. gave the following account of the events involving the robbery:

[Defendant and I] were walking through the park and [defendant] asked me if I got his back. I said yes. So I walked a little faster. . . with him and then started running to get the stuff and then started running to get this guy, and started beating him up, pulled out a gun on him. The guy started waving at the gun, trying to grab the gun so I hit the guy, and I kicked him.

According to J.B., Ramkhalawan gave defendant a brown wallet and money consisting of currency in the amount of five dollars and an unknown amount of coins.

J.B. also identified defendant's cell phone and stated the phone number for the phone. He explained that defendant discovered that his phone was missing after the robbery and planned on having the phone turned off. He did not know what defendant did with the gun. On cross-examination, J.B. conceded that he had not discussed the robbery with defendant prior to its execution and that he "didn't know what [defendant] was going to do."

Detective Elliot Ramos was on duty the night of the incident, and was therefore initially charged with its investigation. Ramos identified the cell phone as the one the victim said had fallen "from the person of the black male who robbed him." According to Ramos, Ramkhalawan opened the phone and immediately recognized the photo displayed as a screen saver as a photo of the person who had robbed him.

Ramos also explained to the jury how records obtained from the cellular provider led police to the home of defendant's mother in Georgia, where defendant was eventually apprehended. Finally, Ramos presented a sworn affidavit indicating that defendant had not applied for a permit to carry a handgun or firearm.

Defendant testified that on the night of the incident, he had taken marijuana and ecstasy. On that same evening, Phillip, (J.B's brother), called him "to take him to where he could get some weed." Phillip and J.B. picked him up in a Jeep driven by Phillip, who then asked defendant to borrow his phone "to make some calls to see if he could borrow some money to get a bag." Defendant observed Phillip make "a couple calls."

According to defendant, the brothers wanted to go to the Red Bank Marina because they knew someone who worked near there that could lend them money. Upon arrival, they parked the car; Philip and J.B. left the vehicle; defendant stepped out of the vehicle to smoke a cigarette. Defendant then gave the following description of what transpired next:

As I walked toward the entrance where that alley was, I could see fighting, a scuffle going down, Phillip and [J.B.] over there. I just kind of watched, I caught the end of it, but right when I saw it, they came running back to the car.

Immediately thereafter, all three individuals returned to the car; Phillip drove to defendant's house. According to defendant:

Phillip was never brought up on any charge whatsoever. He stole my phone which I never received that back. When he got to my house, I had asked him for my phone and I was a little high buzzed, whatever and I had forgot it up until that point. So when I asked him for it, he just said that he didn't have it. He looked around, all over the car and then said he went back [to the scene of the robbery.]

Phillip returned fifteen minutes later without defendant's phone.

II

The trial judge conducted a charge conference at the conclusion of the testimonial evidence. The judge advised counsel that, in addition to the charges identified in the indictment, he planned to charge second-degree robbery, as a lesser-included offense of first-degree armed robbery. With respect to accomplice liability, the judge noted that, in his view, that issue was not "in the case based upon the facts that came in through the State's case." Furthermore, he believed that such a charge "would just . . . confuse the jury." Both defense counsel and the prosecutor agreed. In fact, defense counsel specifically requested that the court not charge accomplice liability. Other than the ordinary instructions required by the charges in the indictment, neither counsel requested any additional instructions.

The judge gave the following instructions regarding J.B.'s testimony:

Now, evidence has been introduced to show that [J.B.], the fellow with the glasses that came in and testified, had been previously adjudicated a juvenile delinquent and is presently serving a sentence at Jamesburg on charges stemming from this case and others. This evidence of this witness' present status does not have any bearing on the general credibility to be given his testimony.

Rather, the evidence has been admitted to allow you to determine whether his testimony has been influenced by possible bias, prejudice, interest or ulterior motive. More specifically, this evidence may be relevant to the question whether testimony is influenced by a hope or expectation of favorable treatment.

Now, [J.B.] has admitted his guilt and has testified on behalf of the State. The law requires that the testimony of such a witness be given careful scrutiny. In weighing his testimony, therefore, you may consider whether he has a special interest in the outcome of the case and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward or by any feelings of revenge or reprisal.

If you believe this witness to be credible and worthy of belief, you have the right to convict the defendant on his testimony alone, provided, of course, that upon and consideration of the whole case, you are satisfied beyond a reasonable doubt of the defendant's guilt.

A short time after the commencement of deliberations, the jury sent out a note with the following question: "If two people are committing a robbery and one person is holding the gun, are they both guilty of armed robbery?" In response, both counsel agreed that the trial judge should simply re-read his earlier instruction regarding the elements of the crime of robbery. The judge thus gave the following instructions:

If you find the State has proven beyond a reasonable doubt that either one or both of the defendants have committed the crime of robbery, and although he's not a named defendant here, [J.B.] pled guilty and admitted to armed robbery, so that's the person I'm referring to, and that's [J.B.], as I have defined that crime to you . . . .

If you find that the State has proven beyond a reasonable doubt that either one or both of the defendants have committed the crime of robbery, as I have defined that crime to you, but if you find that the State has not proven beyond a reasonable doubt, that the defendants, were armed with or used or threatened immediate use of a deadly weapon at the time of the commission of the robbery, then you must find that the defendant pled guilty of robbery in the second degree.

If you find that the State has proven beyond a reasonable doubt that either or both of the defendants committed the crime of robbery and was armed with a deadly weapon or used or threatened the immediate use of a deadly weapon, at the time of the commission of the robbery, then you must find the defendant guilty of robbery in the first degree, the armed robbery feature.

The inquiry from the jury was received at 11:35 a.m. At 2:15 p.m., (which included an hour lunch break from 12:30 p.m. to 1:30 p.m.), the foreperson of the jury announced that they had reached a unanimous decision finding defendant guilty of first-degree armed robbery. The jury also acquitted defendant of the remaining charges in the indictment, including second-degree possession of a firearm for an unlawful purpose, and third-degree unlawful possession of a firearm.

Prior to the imposition of sentence, approximately a month after the verdict, defendant moved for a judgment of acquittal not withstanding the verdict. In support of the motion, defense counsel argued that the conviction for first-degree armed robbery must be vacated as the logical consequence of the jury's acquittal on the weapon charges.

In denying defendant's motion, the trial judge observed that:

[at the request of] both the prosecutor and defense counsel. . . I [did] not charge aiding and abetting and one of the reasons was it was included in the armed robbery charge. Everyone agreed that aiding and abetting, if the defendant was found guilty of that, is still a first degree offense. So based on the language of the armed robbery or first degree robbery charge that I read, it was necessarily included. So whether you call it aiding and abetting armed robbery or armed robbery, it didn't matter.

. . . my initial reaction was well, the reason the jury found the way they did is they thought this was a strong armed robbery.

And then I looked at the verdict sheet that I gave the jury and the way the verdict sheet was drafted, which everybody approved, it leaves out references to strong armed robbery.

If you look at the verdict sheet, which is an official document marked for appellate purposes, how do you find as to count two [sic] of the indictment charging the defendant, Kye Crosby with committing the crime of robbery. The jury unanimously voted guilty.

If you found the defendant, Kye Crosby, guilty of having committed a crime of robbery in count one, indicate whether you find him guilty of armed robbery by using force upon the victim with threatening the victim or purposefully putting him in fear of immediate bodily injury in the course of committing a theft while armed with or while threatening the immediate use of a deadly weapon.

Now, if there's a fault, it might be in the verdict sheet. The verdict sheet doesn't match up to the charge that I read where the verdict sheet, it probably should have said to be consistent with the charge whether or not Mr. Crosby had the weapon or anybody else had the weapon, and i.e., the co-defendant. (Emphasis added.)

The judge thus concluded:

It's my belief that the jury found a) there was a robbery, b) that this defendant was involved in it and c) although they were not sure whether or not he had the gun, they were sure that he or the other individual had the gun. And that's why they found him guilty of the armed feature.

III

Against this legal and factual backdrop, defendant now appeals raising the following arguments.

POINT I

THE TRIAL COURT'S ERRONEOUS AND INCOMPLETE CHARGE ON ACCOMPLICE LIABILITY DENIED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL IN THAT IT FAILED TO ADVISE THE JURORS THAT AN ACCOMPLICE COULD BE GUILTY OF A LESSER OFFENSE THAN THE PRINCIPAL. U.S. Const. Amends. V., VI and XIV; N.J. Const. (1947) Art. I, Pars. 1, 9 and 10. (Not Raised Below)

POINT II

BY WAY OF INDICTMENT, THE GRAND JURY IN THIS MATTER CHARGED THE DEFENDANT WITH FIRST DEGREE ROBBERY SOLELY ON THE BASIS OF BEING "ARMED." CONSEQUENTLY, THE LOWER COURT COMMITTED REVERSIBLE ERROR WHEN IT ALSO CHARGED THE JURY ON AN ALTERNATIVE FACTUAL AND LEGAL THEORY OF LIABILITY I.E. SERIOUS BODILY INJURY, WHICH WAS NOT CHARGED IN THE INDICTMENT. SUCH AN INSTRUCTION WAS IMPROPER AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. Const. Amends. V, VI, XIV; N.J. Const. (1997) Art. I, Pars. 1, 9, 10. (Not Raised Below)

POINT III

THE OMISSION ON THE VERDICT SHEET OF AN OPTION TO FIND THE DEFENDANT GUILTY OF SECOND DEGREE ROBBERY, AS CHARGED TO THE JURY, DENIED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. (Partially Raised Below)

POINT IV

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT THE CO-DEFENDANT'S PLEA OF GUILTY COULD NOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT VIOLATES THE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (U.S. Const. Amends. V, VI AND XIV; N.J. Const. (1947), Art. I, pars. 1, 9 and 10.) (Not Raised Below).

POINT V

THE ENTIRE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF THE INDIVIDUAL ERRORS, AS SET FORTH ABOVE DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS IN THE AGGREGATE DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below)

We agree with defendant's arguments in Points I, III, and IV and reverse. Defendant's arguments in Points II and V are rendered moot by virtue of our decision here.

We will first address the failure to instruct the jury on the legal theory of accomplice liability. We start our analysis of this issue by noting that neither counsel requested that the court charge accomplice liability. In fact, defense trial counsel specifically acknowledged the court's intentions at the charge conference not to charge accomplice liability, and expressed his agreement with this decision. We thus address this question in the context of the plain error rule.

Under the plain error rule, we have the authority to reverse a conviction on the basis of unchallenged error at the trial level, provided we conclude that such error was clearly capable of producing an unjust result. R. 2:10-2. In the context of analyzing error based on an improper or incomplete jury charge, we must be satisfied that the prejudice caused by such an improper charge had the clear capacity to produce an unjust result. State v. Brown, 190 N.J. 144, 160 (2007).

It is well-settled that accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). Thus, a trial court's "failure to charge the jury on an element of the offense is presumed to be prejudicial error, even in the absence of a request by defense counsel." Ibid. (citing State v. Federico, 103 N.J. 169, 176 (1986)).

Accordingly, when the State's theory of culpability is based, in whole or in part, on defendant acting as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability, even in the absence of such a request by defense counsel. Ibid. (citing State v. Weeks, 107 N.J. 396, 410 (1987)).

Here, the testimony given by the victim and corroborated by the juvenile codefendant who had previously pled guilty to the offense, was that defendant held the gun to the victim's head and demanded money. A person may only be found to have acted as an accomplice when he "`shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" Id. at 527-28 (quoting State v. White, 98 N.J. 122, 129 (1984)). The evidence presented to the jury was that defendant acted in concert with the juvenile in carrying out this offense.

In the model charge for accomplice liability, the jury is instructed to consider whether defendant's actions evidenced a less culpable mental state. Thus, had the charge been given here, the jury would have been free to reject the juvenile's version of events, and believed that defendant's actions may have been less culpable; that is, that defendant did not possess the weapon or intend to use it in the robbery. This would have been relevant to the court's charge of second-degree robbery as a lesser-included offense of first-degree armed robbery, the jury's query concerning the legal significance of who actually was in possession of the gun, and the jury's ultimate acquittal on the firearm possession charges. Under these circumstances, we are satisfied that the trial court's failure to charge accomplice liability amounts to plain error, requiring the reversal of defendant's conviction.

We next consider the omission in the jury verdict sheet of the lesser-included offense of second-degree robbery. Once again, we review this issue under the plain error rule. In its brief submitted in support of this appeal, the State "concedes that the first- and second-degree robbery charges were conflated in a manner that deviated from the model jury charge" and "agrees that the verdict sheet did not provide the jury with an explicit option to find defendant guilty of second-degree robbery." As a response, the State suggests that "[t]he verdict should be molded to reflect defendant's conviction for second-degree robbery and should be affirmed in all other respects."

We reject this proposal because it is inadequate to redress the violation to defendant's constitutional right to a fair trial caused by this error of omission. As the trial judge here recognized, "a defendant is `entitled to a charge on all lesser included offenses supported by the evidence.'" State v. Gallagher, 286 N.J. Super. 1, 13 (App. Div. 1995) (quoting State v. Short, 131 N.J. 47, 53 (1993)), certif. denied, 146 N.J. 569 (1996). Although the jury was charged on second-degree robbery, as a lesser-included offense, omitting this option in the jury's verdict sheet irreparably damages the reliability of the ultimate verdict. A new trial is thus warranted.

Finally, we address the court's failure to instruct the jury that a codefendant's guilty plea could not be used as substantive evidence of the defendant's guilt. As was the case with the other issues previously discussed, we review this issue in the context of the plain error rule.

It is well-settled that the guilty plea of codefendant cannot be used as substantive evidence of a defendant's guilt. State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005). Therefore, "[w]hen evidence of the guilty plea of a codefendant is admitted at trial, the trial judge must provide a cautionary instruction as to the limited use of the testimony for credibility purposes." Ibid. (citing State v. Stefanelli, 78 N.J. 418, 434 (1979)).

In cases where the trial court failed to provide such instruction in the absence of any request, we must consider "whether, in the context of the trial, the error was sufficiently harmful to justify a reversal of the conviction[], that is, whether it was clearly capable of producing an unjust result." Stefanelli, supra, 78 N.J. at 435 (citing R. 2:10-2; State v. DiPaglia, 64 N.J. 288 (1974); State v. Macon, 57 N.J. 325 (1971)).

Here, although the court instructed that the jury should convict only if it believed J.B. "to be credible and worthy of belief . . . provided, of course, that upon consideration of the whole case, [the jury was] satisfied beyond a reasonable doubt of the defendant's guilt," such an instruction did not clearly convey that the guilty plea could not be used as substantive evidence of defendant's guilt. The error was compounded by the judge's response to the jury's question:

If you find the State has proven beyond a reasonable doubt that either one or both of the defendants have committed the crime of robbery, and although he's not a named defendant here, [J.B.] pled guilty and admitted to armed robbery, so that's the person I'm referring to, and that's [J.B.], as I have defined that crime to you . . . . (Emphasis added.)

As the State concedes, defendant is entitled to have the question of his guilt determined on the evidence against him and not on J.B.'s guilty plea to the same charge. In the absence of clear limiting instructions, the jury may well have considered the fact that the codefendant pled guilty as substantive evidence of his guilt and reasoned that if the codefendant was guilty, defendant must be guilty as well.

We are thus satisfied that the errors discussed had the clear capacity of producing an unjust result, requiring the reversal of defendant's conviction.

Reversed and remanded for a new trial.

The invited error doctrine is not implicated here because the record shows that the trial court was not misled, induced or "cause to fall into the error" by defense counsel's actions. State v. Jenkins, 178 N.J. 347, 359 (2004).

(continued)

(continued)

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A-6430-05T4

November 1, 2007