STATE OF NEW JERSEY v. KEVIN DAVIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0873-07T40873-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN DAVIS,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 22, 2008 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-10-1755.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant was charged alone in a one-count indictment with second-degree robbery, N.J.S.A. 2C:15-1, for purposely putting James Steiner in fear of immediate bodily injury in the course of committing a theft. Defendant was one of four perpetrators, and he was not the one identified as the principal. The principal's identity is unknown and he was never apprehended. The other two perpetrators were juveniles and thus were not part of this criminal proceeding. The State's case against defendant relied heavily on a theory of accomplice liability. In addition to robbery, the court submitted to the jury the lesser-included offense of third-degree theft from the person, N.J.S.A. 2C:20-2b(2)(d). The jury convicted defendant of robbery, and the court imposed a sentence of six years imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant argues on appeal:

POINT I

THE ACCOMPLICE-LIABILITY CHARGE WAS NOT TAILORED TO THE FACTS OF THE CASE, AND FAILED TO EXPLAIN HOW THE ACCOMPLICE THEORY APPLIED TO THE LESSER-INCLUDED OFFENSE. (Not Raised Below).

POINT II

THE SENTENCE IS EXCESSIVE BECAUSE THE COURT FAILED TO CONSIDER ALL THE RELEVANT MITIGATING FACTORS.

We agree with Point I. We conclude that the error was not harmless, and we therefore reverse. Accordingly, we need not address Point II.

Steiner took a commuter train from his place of employment in Manhattan and arrived at Journal Square in Jersey City at about 1:00 a.m. on August 25, 2006. As he walked along the street attempting to find a cab to take him home, he was approached by a man in a dark shirt who asked him for some money. Steiner said no and kept walking. The man followed him and Steiner soon realized there were three other men nearby who were also coming towards him. The man in the dark shirt pushed Steiner "a little bit," and Steiner kept walking. The man eventually got in front of Steiner, pushed him on the chest and stopped him. He said, "No I don't think you understand, I'm not really asking for money. Give me your -- give me your wallet."

At that point, the other three men came up from behind Steiner, who was now surrounded by all four men. Steiner reached into his pocket to remove currency that was held in a money clip. His hand "was kind of stuck and it was taking a little bit of time." The man in the dark shirt "started getting agitated" and said, "Come on this guy's taking too long, pop this guy." Steiner interpreted that comment to mean that someone in the group had a weapon and "was going to pull it out and do something to [him], or hit [him] or something, some type of violence obviously." At that point, one of the three men who came as a group, later identified as defendant, said to Steiner "Come on, hurry up." The man in the dark shirt then walked behind Steiner and grabbed his wallet out of his back pocket. At about the same time, Steiner pulled his hand out of his pocket with the cash, and defendant grabbed it from him. The assailants immediately left the scene.

This episode was captured on a closed circuit television system maintained by the Jersey City Police Department. Multiple cameras are strategically placed around Jersey City and are monitored by the police. An officer observed this incident on a monitor and alerted officers in the area, who promptly responded to Steiner's location. The three men who joined the incident as a group were immediately apprehended and identified by Steiner. The man in the dark shirt was not apprehended and has not been identified.

At trial, the State relied upon Steiner's testimony and the video tape captured by the closed circuit television system. Defendant did not testify or call any witnesses. His attorney argued in summation that the State failed to prove that a robbery occurred. He did so by attacking Steiner's credibility and by suggesting that Steiner did not appear on the video to be in fear for his safety. Alternatively, counsel argued:

Whether or not you want to believe there was a theft of the person here, whether you want to believe that he was like not part of like whoever it was, that first guy who's there with the victim, the guy in the dark [shirt] who took his wallet . . . .

With respect to the State's accomplice liability theory, defense counsel argued:

And that's why we're here today, to present to you the reality that there was no robbery that night of Mr. Steiner. If there was a robbery that night, it was by somebody other than [defendant]. Whoever that person was that he was in the company with, whatever was going on between the two of them, be it a robbery, be it something like, I don't know. We'll never know. But whatever it was, it didn't involve this gentlemen right here.

Thus, the primary defense argument was that the State failed to prove beyond a reasonable doubt that any of the perpetrators threatened or purposely put Steiner in fear of immediate bodily injury, thus falling short of its proofs that a robbery occurred. See N.J.S.A. 2C:15-1a(2). Alternatively, the defense argued that if the man in the dark shirt threatened or put Steiner in fear of immediate bodily injury, defendant did not share a purpose to do so and could be convicted of nothing more than theft from the person.

In his summation, the prosecutor argued:

Accomplice liability in this particular case essentially means a person would be responsible for the conduct of another if they had this common plan, this common scheme going on. It was their share[d] idea to do something.

In this particular case, what was their shared idea? It was to rob Jaime Steiner.

The prosecutor then played the video tape for the jury after which he described the events depicted on the tape, all of which was consistent with Steiner's testimony. He then concluded:

So if you see what I see on the video, there's -- there should be very little doubt as after you hear the law of robbery and accomplice liability that [defendant] is guilty of robbery in this case.

The court charged the jury on the substantive offenses of second-degree robbery and theft from the person, followed by an accomplice liability charge. Following the model jury charge, the court explained at length how defendant could be liable for robbery as an accomplice of the man in the dark shirt. The charge included the following with respect to robbery:

The -- this provision of the law means not only is the person who actually commits the criminal act responsible for it, but one who's legally accountable as an accomplice is also responsible.

Now, this responsibility as an accomplice may be equal and the same as the person who actually committed the crime, or they may be re -- there may be a responsibility in different degree, depending on the circumstances as you may find them to be.

In this case the State alleges that the defendant is equally guilty of the crime of robbery with the first person who approached Mr. Steiner because he acted as his accomplice with the purpose that the specific crime of robbery be committed.

In order to find the defendant guilty of the -- the charge of robbery, the State must prove beyond a reasonable doubt that one of the other persons, I'll just call him in the dark shirt, committed the crime of robbery. And I've already defined what robbery is for you. That the defendant aided or agreed to attempt to aid him in committing the crime of robbery, and that this defendant, in other words, Mr. Davis' purpose was to promote or facilitate the commission of the offense of robbery.

Also you must find or the State must prove that this defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act. In other words, that the -- the parties involved in the offense had the same mental state. And I've defined for you the applicable mental states with regard to theft and deception, and also with robbery, okay?

So you can only be an accomplice to someone if you're acting with the same purpose or mental state as that -- as the person who is the principal or the main actor, okay?

And I -- of course I already told you that one acts purposely with respect to his conduct or a result of his conduct if it's his conscious objective to engage in conduct of that nature or cause such a result.

If you find that the defendant, Kevin Davis, with the purpose of promoting or facilitating the commission of the offense of robbery, aided or agreed or attempted to aid the principal in planning or committing it, then you should consider him as if he committed the crime himself.

To prove the defendant's criminal liability, the State does not have to prove his accomplice status by direct evidence of a formal plan to commit a crime. There does not have to be a verbal agreement by all who are charged. The proof may be circumstantial. Participation and agreement can be established from conduct as well as spoken words.

Of course mere presence at or near the scene of a crime does not make one a participant, nor does failure of a spectator to interfere make him a participant. It is, however, a circumstance to be considered with the other -- other evidence in determining whether he was present as an accomplice. Presence is not in itself conclusive evidence of that fact. Whether presence at the scene of a crime has any probative value depends upon the total circumstances. To constitute guilt there must exist a community of purpose and actual participation in the crime charged.

While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission without disapproving or opposing it is evidence from which in connection with other circumstances, it's possible for you to infer that he agreed to it, or lent his support and approval and was thereby aiding in the commission of the crime. It depends upon the totality of the circumstances as those circumstances appear from the evidence.

An accomplice may [be] convicted on proof of the commission of a crime of his complicity in the crime, even though the person who it is claimed committed the crime has not been prosecuted, or has been convicted of a different offense or degree of an offense, or has immunity, or who -- or has been acquitted.

Remember that this defendant can be held to be an accomplice with equal responsibility only if you find as a fact that he possessed the criminal state of mind that is required to be proved -- to be proved against the person who act -- actually committed the criminal acts.

To convict the defendant as an accomplice to the specific crime of robbery, you must find that the defendant had the purpose to participate in that particular crime. He must act with the purpose of promoting or facilitating the commission of robbery with which he is charged.

It's not sufficient to prove only that defendant had knowledge that another person was going to commit a robbery. The State must prove that it was defendant's object that the specific conduct charge[d] be committed.

In summary, in order to find the defendant guilty of committing the crime of robbery, the State must prove that a robbery was committed. That is defendant aided someone in committing it, or agreed to aid someone in the planning or committing it, but this defendant's purpose was to promote or facilitate the commission of the crime of robbery. That the defendant possessed the criminal state of mind that is to be required against the person who actually committed the robbery.

So if you find the State has proven each of the elements I've described beyond a reasonable doubt, then you must find the defendant guilty of robbery.

On the other hand, if you find the State has failed to prove one or more of these elements beyond a reasonable doubt, then you must find him not guilty.

The court then went on to discuss the lesser-included offense of theft from the person within the concept of accomplice liability, but deviated from the model charge. The court said:

Okay. You may also determine with regard to the theft from a person that I told you about, if you find the defendant not guilty of an accomplice as a robbery, you can consider whether he is guilty or not guilty of -- as an accomplice on the lesser charge of theft from a person. And I've already explained the elements of that offense to you. But it's the same -- the other elements in terms of acting with the same mental state and not the defendant's purpose was to promote or facilitate the commission of theft from a person.

So basically what the state is alleging here is that -- and what the State is obligated to prove beyond a reasonable doubt before you can render a verdict of guilty is that he's charge -- Mr. Davis is charged both sub -- substantively with the crime of robbery, and he's charged also where the State suggested he can consider whether or not he is an accomplice in the crime of robbery for which he would have to be acting with the same mental state as the person who was a principal.

You don't have to tell us in your verdict sheet whether find this or not, it's merely whether you find him guilty or not guilty on -- on the charge of robbery and on the charge of theft from a person because an accomplice is equally liable as -- as a main actor.

So you're, in other words, as liability for the crime as -- as the person who actually committed it if you aid and agree to aid and the purpose to help that person commit the crime, okay? So I hope that's all clear.

In State v. Bielkiewicz, 267 N.J. Super. 520, 533-34 (App. Div. 1993), we found plain error in an accomplice liability charge, in factual circumstances where the jury could have rationally found the accomplice guilty of a lesser offense than the principal, in which the instruction conveyed the impression that the jury could not find the principal guilty of the greater offense and the accomplice of the lesser-included offense. See also State v. Cook, 300 N.J. Super. 476, 487-88 (App. Div. 1996) (requiring that the jury be advised in "unequivocal terms" that, depending on its view of the evidence, it could decide that the liability of the accomplice was different from that of the principal because each had a different state of mind). In Bielkiewicz, we held that the "oblique reference" in the model charge as it then existed, which was included in the charge here, that "[a]n accomplice may be convicted on proof of the commission of a crime . . . or has immunity from prosecution or conviction or has been acquitted" (quoted in its entirety supra, at 9) was inadequate to inform the jury that an accomplice with a different intent than the principal can be found guilty of a different offense. Bielkiewicz, supra, 267 N.J. Super. at 532 n.2. We also held that jury instructions in this context should include "what view of the facts could lead to [the] conclusion" that the principal could be found guilty of the greater offense and the accomplice of a lesser offense. Id. at 533.

This was not done here. The court did not outline for the jury those facts which could support a finding that the principal was guilty of robbery but defendant was guilty only of theft from the person. The court could have explained, for example, that even if the jury was convinced beyond a reasonable doubt that the principal, by his conduct and words, had the purpose of threatening or placing Steiner in fear of immediate bodily injury, and did so (thus making the principal guilty of robbery), defendant may not have shared that purpose but only had the purpose of stealing money from Steiner (thus constituting a theft from the person). And, of course, the court did not even mention, let alone explain in unequivocal terms, that the jury could find the principal guilty of robbery but defendant guilty of only theft from the person.

These are the portions of the model charge, added in the aftermath of Bielkiewicz, that would have fulfilled those requirements, but which the court omitted:

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).4

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}.

______________

4 In instructing jury as to lesser offense(s), court should tell jury what view of the facts could lead to this conclusion. See State v. Bielkiewicz, 267 N.J. Super. 520, 533 (App. Div. 1993).

Defendant did not object to the charge at trial. Therefore, our review is guided by the plain error standard, and we will reverse only if any error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In connection with a jury charge, plain error is:

legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.

[State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).]

Erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979).

Our task is to determine whether the error in the charge can be deemed harmless, or whether it requires reversal. The determination hinges on whether a jury could have rationally found defendant, although an accomplice of the principal, guilty of only the lesser offense of theft from the person, while the principal could have rationally been found to have committed a robbery. During the charge conference, the prosecutor objected to submission of the lesser-included theft from the person offense to the jury. In overruling the objection, the court reasoned:

Well, I think that you have to argue that in connection with accomplice liability. We don't know who said "Pop him." You know, you would have to find that the defendant had the shared mental state of the person who said "Pop him," as well as the share[d] mental state of the person who pushed the victim. It's a close case, I think, [prosecutor]. I can see your point. And many times -- there have been times where I've rejected charging a lesser included offense from a person when there just was not [a] basis for it. But in this particular case where the jurors could see on that screen the defendant take money from the hand of the victim, they could decide he was not an accomplice to the other guy, that he was acting on his own in committing a theft from the person. It's conceivable.

And I think that's -- I'm -- I'm gleaning from [defense counsel]'s questioning that that's his theory.

We agree with the court's analysis that the facts of this case required submission to the jury of the lesser-included offense. In factual circumstances where the jury could rationally find an accomplice guilty of the lesser offense while at the same time finding the principal guilty of the greater offense, the Bielkiewicz instruction must be given, lest the jury be misled into believing that accomplice liability follows that of the principal. State v. Harrington, 310 N.J. Super. 272, 277-80 (App. Div. 1998); State v. Jackmon, 305 N.J. Super. 274, 285-90 (App. Div. 1997); Cook, supra, 300 N.J. Super. at 487-89; Bielkiewicz, supra, 267 N.J. Super. at 533-34. On the contrary, in circumstances where a rational factfinder could not find an accomplice guilty of a lesser offense than the principal, a Bielkiewicz charge is not required, and failure to give it is harmless. See, e.g., State v. Norman, 151 N.J. 5, 31-32 (1997); State v. Rue, 296 N.J. Super. 108, 114-15 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997).

From the verdict sheet, we are not specifically informed whether defendant was found guilty of robbery as an accomplice or for his own conduct. However, the thrust of the State's case was that his culpability for robbery was predicated upon his alleged shared intent with the principal, who acted in a menacing manner towards Steiner and said "Pop this guy." Considering the entirety of the record and the charge, we are of the view that the inaccurate and incomplete accomplice liability charge had the clear capacity to mislead the jury to conclude that if the principal committed a robbery, and if defendant acted in concert with the principal in the incident, that defendant must also be found guilty of robbery. We are therefore left with a reasonable doubt as to whether the erroneous charge led the jury to a result it might not otherwise have reached. The error was therefore not harmless and defendant is entitled to a new trial.

 
Reversed and remanded.

When the men were leaving Steiner's presence, Steiner exclaimed that he had no money in his wallet. The man in the dark shirt rifled through it and, apparently recognizing there was no money, discarded the wallet, which was recovered. The currency stolen from Steiner was not found on any of the three individuals that were apprehended.

We have not been furnished with the video as part of the appellate record.

LIABILITY FOR ANOTHER'S CONDUCT (N.J.S.A. 2C:2-6), ACCOMPLICE, revised 5/22/95, CHARGE # TWO - Where defendant is charged as accomplice and jury is instructed as to lesser included charges.

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A-0873-07T4

October 7, 2008