STATE OF NEW JERSEY v. TERRIQUE JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0968-06T40968-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRIQUE JONES,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 10, 2008 - Decided

Before Judges Cuff, C.L. Miniman and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-10-1402.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Terrique Jones appeals from his August 18, 2006 conviction following a trial by jury on first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count four); two counts of third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5) (counts five and six); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count seven). The jury acquitted him of second-degree conspiracy to commit aggravated assault (count one). At sentencing, the judge merged counts three and four with count two and imposed a sentence of twenty-seven years imprisonment subject to the eighty-five percent parole disqualifier that is required by N.J.S.A. 2C:43-7.2. On counts five, six and seven, the judge imposed concurrent five-year terms of imprisonment, with a two and one-half year parole disqualifier on each count, concurrent to the sentence imposed on count two. Appropriate fines and penalties were imposed. We affirm defendant's conviction on counts three, five, six and seven, and reverse his conviction on counts two and four. We remand those two counts for a new trial.

I.

Jury selection began on May 15, 2006 and concluded on May 31, 2006. During jury selection, a prospective juror stated in open court, "I'm a New York City taxi driver. I've been robbed a few times by blacks. So I'm definitely prejudiced. I couldn't render a fair judgment." After the judge excused that juror for cause, all three defendants moved to excuse the jurors who were seated in the jury box at the time as well as other prospective jurors who were seated in the courtroom. They urged the judge to begin anew with a fresh pool of jurors.

The judge denied defendants' request. He concluded that the statement made by the prospective juror was not sufficiently prejudicial to have infected the jury pool as a whole. The judge did, however, decide to individually question each prospective juror at sidebar about whether the statement would adversely impact that juror's capacity to serve fairly and impartially. Each juror responded that the statement would have no such effect. Consequently, the judge did not remove any of the jurors, start with a fresh pool or take any further remedial action.

Prior to the start of the second day of jury selection, a document was posted on a bulletin board outside the courtroom, which listed the trial and identified each defendant. Next to each defendant's name was "jail." On another occasion, a notice was left on a table in the jury room indicating a "request for transport" from the jail. The notice contained the names of the three defendants, their jail cell numbers, and other information indicating their status as inmates in the Morris County jail. The judge denied a defense request to strike the seated jurors and begin anew because of the possibility of prejudice. Instead, he asked them as a group whether anyone had read any notice about the case that was posted in the hallway or left on the table in the jury room. Because no juror answered in the affirmative, the judge took no further action.

We now summarize the most pertinent portions of the trial testimony. Officer Edward Uranyi of the Chatham police department testified that on June 30, 2005, at approximately 9:00 p.m., he was dispatched to respond to an auto theft in progress at a restaurant on Roosevelt Avenue in Chatham. When Uranyi, in a marked police vehicle, arrived at the parking lot of the restaurant, he observed a Lexus emerge from the back of the same parking lot. The Lexus stopped briefly, turned its headlights off, and then accelerated toward Uranyi's vehicle at a speed of approximately 30 miles per hour, striking the patrol vehicle on the front driver's side. After hitting two other parked vehicles, the Lexus stopped.

Due to the impact, the left side of Uranyi's patrol vehicle was crushed, pinning Uranyi in the vehicle and bruising his ribs and left shoulder. Because the Lexus was only three to four feet away from Uranyi's patrol vehicle after it stopped, Uranyi was able to see the driver's face. At trial, he identified co-defendant Coleman as the driver of the Lexus. Uranyi was not able to see the passenger well enough to identify him; however, the passenger was later identified as co-defendant Kenneth Daniels.

As Uranyi struggled to get out of his patrol vehicle, he shouted commands at Coleman to stop and freeze. When Uranyi was finally able to force open the door of his patrol vehicle, Coleman climbed out the window of the Lexus and attempted to flee. Uranyi was able to grab the back of Coleman's shirt, but after a brief struggle, Coleman broke free.

As Coleman and Daniels ran toward Roosevelt Avenue, an Infiniti operated by defendant drove past Uranyi's patrol vehicle and exited the parking lot onto Roosevelt Avenue in the direction of Coleman and Daniels. As defendant drove by in the Infiniti, the two dove head first into the vehicle through the passenger window. As the Infiniti sped off, Coleman and Daniels were partially hanging out of the vehicle.

The Infiniti then accelerated, traveling at a speed of thirty to thirty-five miles per hour toward Officer Larry Dillon's vehicle. Like Uranyi, Dillon arrived at the scene after hearing the police dispatch. Officer Dillon testified that he attempted to avoid a collision with the Infiniti, but the Infiniti struck his right front bumper. The impact caused Dillon to sustain a separated shoulder and torn ligaments. The Infiniti kept driving and disappeared into a parking lot behind some stores. Although Dillon was able to follow the Infiniti, Uranyi lost sight of both vehicles.

Uranyi then observed three individuals, including defendant, running from behind the stores toward Roosevelt Avenue. Uranyi pursued them on foot through several backyards, but was unable to apprehend any of the three. Police officers from a number of surrounding communities, many of whom testified, ultimately apprehended all defendants. Uranyi also assisted in the arrest of defendant, who resisted his arrest by failing to put his hands behind his back, struggling, fighting, and rolling around. Defendant was identified by Officer Dillon as the driver of the Infiniti.

The State also produced the testimony of the owners of the Lexus and Infiniti. Each testified that he had not given Coleman or defendant, respectively, permission to drive his vehicle.

The owner of the Infiniti, David Garramone, also testified that during the evening of June 28, 2005, two days before the events in question, he looked out the fifth-story window of his office building in Woodbridge and saw two vehicles parked next to his Infiniti coupe. He then observed an unknown individual get out of the back of his car and open the trunk. At that point, Garramone told a colleague to call police and ran down the stairs of the building. As he reached the ground floor, he saw all three of the cars, including his, driving away. Garramone then reported his vehicle stolen.

Two days later, Garramone received a phone call from the Woodbridge police department advising him that Chatham police had recovered his vehicle. When he retrieved his car, he observed considerable body damage, including a damaged lock on the driver's door.

Detective Corporal William Stitt of the Morris County Sheriff's Department found a locksmith tool kit in the passenger compartment of the Infiniti after the Infiniti was recovered. A Chatham police officer found a screwdriver, a tire wrench and a pair of black nylon gloves in the back seat. Further investigation that was conducted later that night revealed five other vehicles in the restaurant parking lot with damage to their door locks similar to that on the Infiniti.

After the State rested, all defendants moved for a judgment of acquittal. The judge denied each motion. None of the defendants testified. Only Daniels presented witnesses, both of whom testified about the point of impact of the police vehicles with the Lexus and Infiniti on the night in question. The State called no rebuttal witnesses.

During the charge conference, the judge denied all defendants' request that he refrain from charging second-degree robbery as a lesser included offense on the first-degree robbery count. The judge also specified during the charge conference the precise counts on which he would instruct the jury that each defendant was charged either as a principal or as an accomplice. Before charging the jury, the judge advised defense counsel that in order to protect courtroom security, he intended to have all defendants in ankle shackles when the jury entered the courtroom with its verdict. After consulting with counsel about the appropriate method of hiding the ankle shackles from the jury, the judge decided to seat defendants at a "bench" in the courtroom when the jury verdict was read. Although the record does not describe the "bench" or its placement in the courtroom, apparently the ankle shackles could not be seen by the jurors if defendants remained seated. The State asserts in its brief, and defendant does not contest, this description of the seating arrangement in the courtroom:

[D]efendants never stood up. They were shackled at the ankle and their pants covered the shackles. They were not handcuffed at all and the shackles were invisible to the jury. Also, the three defendants and their three attorneys were all seated together, two tables away from the jury box. Besides the two tables, there were also two Assistant Prosecutors between the jury and the defendants and their attorneys.

The judge agreed to announce that everyone should remain seated when the jury entered the courtroom with its verdict so as not to draw undue attention to defendants, who would remain seated to avoid the awkwardness of rising while wearing ankle shackles. With that additional precaution, all three defendants agreed to this plan.

When the jury notified the judge it had reached a verdict, the jury was brought into the courtroom. With the jurors seated in the jury box, but before taking the verdict, the judge reviewed the verdict sheet and realized that the jury had not completed the entire verdict sheet and had consequently returned only a partial verdict. The judge sent the jury back to the jury room to continue its deliberations.

Defendants then asked the judge to poll the jury to determine whether any jurors had seen defendants in ankle shackles. The judge denied the request, reasoning that the shackles were not visible because defendants were seated. The jury subsequently returned with a complete verdict, finding defendant guilty of the charges we have described.

On appeal, defendant raises the following claims:

I. DEFENDANT'S RIGHT TO TRIAL BY A FAIR AND IMPARTIAL JURY WAS VIOLATED.

A. THE TRIAL COURT DID NOT ENSURE THAT THE JURY DID NOT LEARN OF DEFENDANT'S INCARCERATION AND APPARENT DANGEROUSNESS IN THE COURTROOM AND THAT THIS KNOWLEDGE DID NOT COLOR THEIR DELIBERATIONS.

B. REFUSING TO REMOVE THE SEATED JURORS AND START WITH A FRESH POOL AFTER JURORS HEARD THE "I WAS ROBBED BY BLACKS" COMMENT VIOLATED DEFENDANT'S FAIR TRIAL RIGHT.

II. DEFENDANT'S CONVICTION FOR ROBBERY STANDS ON INSUFFICIENT EVIDENCE AND IMPROPER JURY INSTRUCTIONS. (PARTIALLY RAISED BELOW)

III. EVEN IF THE STATE'S PROOFS COULD HAVE SUSTAINED A ROBBERY CONVICTION UNDER ONE OF THE SCENARIOS PRESENTED ON THE VERDICT SHEET, OR UNDER A THIRD SCENARIO COMBINING THE ACTS OF THEFT OF THE LEXUS AND DRIVING THE INFINITI AT OFFICER DILLON, THE JURY WAS NOT CHARGED THAT IT HAD TO UNANIMOUSLY AGREE ON WHAT ACTS THE DEFENDANT COMMITTED IN ORDER TO FIND DEFENDANT GUILTY OF ROBBERY. THIS VIOLATED DEFENDANT'S RIGHT TO A UNANIMOUS JURY VERDICT. (PLAIN ERROR)

IV. THE JURY CHARGES FOR RECEIVING STOLEN PROPERTY AND AGGRAVATED ASSAULT ON OFFICER URANYI WERE INCOMPLETE AND INSUFFICIENT.

V. DEFENDANT'S SENTENCE IS EXCESSIVE.

II.

In Point I, defendant argues that the cumulative effect of two trial court errors violated his right to a fair and impartial jury: (1) "the court did not take the necessary steps to ensure that the jury was not exposed to the fact that the defendants were incarcerated and considered a security threat in the courtroom"; and (2) "the court did not ensure that at least 8 jury members were not prejudiced by the racist comment made by the prospective juror during voir dire."

Both the State and federal constitutions guarantee the right to trial by an impartial jury. State v. Fortin, 178 N.J. 540, 575 (2004). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Tyler, 176 N.J. 171, 181 (2003).

A. Ensuring that jurors did not learn of defendant's incarceration

We turn first to defendant's claim that the judge failed to take adequate steps to ensure that the jury was not prejudiced against him because it may have known he was incarcerated during trial. Defendant argues that the jury may have learned of defendant's incarceration by: (1) the notice on the bulletin board in the hallway that stated defendant was in jail; (2) the transportation listing left in the jury room that said defendant was in jail; and (3) "the possible viewing of defendants wearing foot shackles surrounded by extra security personnel in the courtroom." According to defendant, the "court should have 'erred on the side of caution'" and "started with a fresh jury panel" after the first two errors, and for the third error, it should have "at least questioned the jurors about the possible viewing of defendants in foot shackles."

The jury's knowledge that a defendant is incarcerated has the capacity to cause "an erosion of the[] presumption of innocence." State v. Gertrude, 309 N.J. Super. 354, 357 (App. Div. 1998)(quoting State v. Carrion-Collazo, 221 N.J. Super. 103, 111 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988)).

Here, the court specifically asked the impaneled jurors whether they had read "any notice about this case that was in the hallway" on the first day of jury selection. The jurors shook their heads in the negative, indicating that they did not see the notice. The court also specifically asked the impaneled jurors whether any one of them happened "to notice a piece of paper that was laying on the desk" in the jury room, and if so, to raise his or her hand. No one did so.

"Trial courts conducting voir dire are best able to evaluate the credibility and sincerity of a prospective juror in a way that the record will never allow." State v. Loftin, 191 N.J. 172, 211 (2007)(quoting State v. Fortin, 178 N.J. 540, 629 (2004)). "Ordinarily, a juror's declaration of impartiality will be accorded great weight and a judge's assessment of a juror's credibility in responding to questions will be respected." State v. Carroll, 256 N.J. Super. 575, 599 (App. Div.), certif. denied, 130 N.J. 18 (1992). Here, nothing in the record demonstrates that the judge's evaluation of the jurors' impartiality is not entitled to that deference.

There is nothing in the record that would suggest that any of the jurors were dishonest in their response to the judge. "[W]here there is doubt as to the prospective juror's competency or impartiality[,] he should be permitted to stand aside so that a clearly qualified juror may take his place." State v. Jackson, 43 N.J. 148, 160 (1964). Here, however, nothing in the record suggests the jurors saw the notice or were prejudiced against defendant. Consequently, we reject defendant's claim that the trial court erred when it denied his request to impanel new jury members for either incident.

We turn now to the judge's decision to place all three defendants in shackles when the jury verdict was read because the issue of security was "most acute" at that time. A jury observing a defendant in shackles carries the same risks as a jury knowing a defendant is incarcerated. Moreover, the sight of the defendant in shackles has the potential to cause the jury to view the defendant as a "dangerous man." State v. Damon, 286 N.J. Super. 492, 498 (App. Div. 1996). A defendant's freedom from handcuffs or shackles is important to his right to a fair and impartial trial. Ibid. Consequently, a trial judge's discretion to keep a defendant restrained is "sharply limited." Id. at 499 (quoting State v. Roberts, 86 N.J. Super. 159, 164 (App. Div. 1965)).

Here, nothing in the record suggests that the jury could have or did observe defendants' shackles. Presumably, the shackles were hidden by the "bench" and by the precaution of having defendants remain seated. Furthermore, defendant did not object at the time the precautions were announced, and agreed that the proposed plan would prevent the jurors from seeing the shackles.

Although it is true that "a trial court may not require a defendant to appear before the jury in restraints absent compelling reasons," State v. Artwell, 177 N.J. 526, 534 (2003), Artwell is distinguishable because there the defendant appeared before the jury in visible physical restraints. Here, nothing in the record demonstrates that the precautions were ineffective in concealing the shackles from the view of the jury. Had the restraints been visible, the judge would have been required to follow the approach specified in Damon, i.e., issuing a curative instruction to the jury. Damon, supra, 286 N.J. Super. at 499. That, however, was not the case here. Defendant's claim that the jury could have seen the shackles is purely speculative and lacks support in the record. For that reason, we reject defendant's claim respecting the shackles.

B. Prejudicial statement of prospective juror.

We turn next to defendant's claim that the trial court did not ensure his right to a fair and impartial jury because it exposed the jury to the comment "I was robbed by blacks" made by a prospective juror. Defendant further argues that although this comment alone would not warrant relief, the net effect of the comment, when combined with the possible prejudice from the jury's exposure to defendant's incarceration, was to deny defendant the right to a fair and impartial jury.

The record reflects the judge's conclusion that the prospective juror's comment was serious enough that the court should make specific inquiries of each juror who heard the comment. Of the jurors who heard the comment, eight were ultimately seated on the jury. All of them were individually and privately questioned as to whether that type of statement would have any adverse impact on their capacity to serve as a juror. All eight told the judge that the comment would have no such impact. Based on the jurors' responses, the judge concluded that he was satisfied "to have them continue" and he did not think "any of them had any hesitation in responding to the Court's inquiries about this comment."

As we have already discussed, "[a] decision on the potential bias of a prospective juror is addressed to the sound discretion of the trial judge. Ordinarily, a juror's declaration of impartiality will be accorded great weight and a judge's assessment of a juror's credibility in responding to questions will be respected." State v. Carroll, supra, 256 N.J. Super. at 599.

Here, defendant has provided no meritorious basis upon which to reject the judge's conclusion that the jurors remained fair and impartial. Because the record is devoid of any evidence suggesting that the jurors were negatively impacted by the comment, and because there is evidence in the record, namely the jurors' responses to the judge's questioning, to support the judge's finding that the jurors were not prejudiced, we defer to the judge's determination on this issue. Consequently, we reject the argument defendant raises in Point I.

III.

In Point II, defendant argues that: (1) the evidence was insufficient to sustain his first-degree robbery conviction; and (2) even if the evidence was sufficient, the jury charge was not.

At the close of the State's case, defendant moved pursuant to Rule 3:18-1 for a judgment of acquittal. When a motion for acquittal is made at the close of the State's case, the trial judge must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). We apply the same standard on our review of the trial judge's ruling. State v. Bunch, 180 N.J. 534, 548-49 (2004).

After the jury returned its verdict, defendant moved pursuant to Rule 3:20-1 for a new trial on the ground that the jury's verdict was against the weight of the evidence. "[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). This court's scope of review is limited to a determination of "whether the findings made by the trial court could reasonably have been reached on sufficient credible evidence present in the record." Id. at 140. Moreover, this court will "give deference to the trial judge's feel for the case since he presided over [it] . . . and had the opportunity to observe and hear the witnesses as they testified." Ibid.

Defendant did not object to the jury charges. Consequently, we review the judge's charge under the plain error standard of Rule 2:10-2. Any error will be disregarded "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

We turn first to defendant's claim that there was insufficient evidence to sustain his conviction for first-degree robbery. He argues that the State's evidence was insufficient to sustain either robbery scenario that was presented on the verdict sheet: the robbery involving the Lexus or the robbery involving the Infiniti. Thus, according to defendant, the trial court should have granted his motion either for acquittal or for a new trial.

"A person is guilty of robbery if, in the course of committing a theft, he inflicts a bodily injury or uses force upon another." N.J.S.A. 2C:15-1(a)(1). Robbery is a crime of the first degree "if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b). "An act shall be deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." N.J.S.A. 2C:15-1(a).

The jury was asked to render a verdict on whether defendant was guilty as an accomplice in the robbery involving the Lexus and as a principal in the robbery involving the Infiniti. A person is an accomplice of another person in the commission of an offense if:

(1) With the purpose of promoting or facilitating the commission of the offense; he

(a) Solicits such other person to commit it; [or]

(b) Aids or agrees or attempts to aid such other person in planning or committing it[.]

[N.J.S.A. 2C:2-6(c)(1).]

In order for accomplice liability to attach, "defendant must have a purpose that someone else engage in the conduct that constitutes the particular crime charged." Cannel, New Jersey Criminal Code Annotated, comment 7 on N.J.S.A. 2C:2-6 (2008). "Additionally, the defendant must share with the actor whatever culpability is required for the substantive crime." Ibid.

A. Robbery involving the Lexus

Under the first scenario, the robbery involving the Lexus and the striking of Officer Uranyi's patrol vehicle, defendant concedes that the evidence was sufficient to show that he was guilty as an accomplice in the theft of the Lexus; however, defendant contends that there was insufficient evidence to show that he had the purpose of using force while threatening the immediate use of a deadly weapon during the commission of the theft. Specifically, defendant argues that he was not in the Lexus when it accelerated toward and struck Officer Uranyi's vehicle; thus, "there was insufficient evidence to prove beyond a reasonable doubt that defendant shared the criminal purpose that Coleman (who was driving the Lexus) allegedly had to use the Lexus as a deadly weapon to assault Officer Uranyi."

This argument lacks merit because there was sufficient evidence before the jury to enable the jury to conclude that defendant approved of and aided in the robbery involving the Lexus. Specifically, the jury could have concluded that defendant drove Coleman to the scene in the stolen Infiniti and that defendant intentionally used force against Dillon to prevent Dillon from apprehending Coleman and Daniels while they were fleeing on foot moments after Coleman rammed Uranyi's vehicle with the Lexus. So viewed, defendant's use of the Infiniti would elevate his participation as an accomplice in the theft of the Lexus to an accomplice in a first-degree robbery because "the jury would have inferred that defendant approved of and aided in the robbery." See State v. Whitaker, _____ N.J. Super. _____, (App. Div. 2008) (slip op. at 30).

We view this interpretation of the evidence as distinctly different from the alternate scenario that the panel in Whitaker viewed as insufficient to sustain a conviction as an accomplice to armed robbery. We rejected the State's argument that when the defendant instructed his co-defendant to discard the gun that his co-defendant had used in an earlier robbery and shooting, the defendant was thereby assisting in the flight after the robbery. We likewise rejected the State's argument that because robbery is an ongoing offense and by definition continues during the flight from an attempted theft, the defendant was consequently guilty as an accomplice. Whitaker, supra, ____ N.J. Super. at ____ (slip op. at 31). The panel held that:

The phrase contained in the robbery statute, "[a]n act shall be deemed to be included in the phrase 'in the course of committing a theft,'" N.J.S.A. 2C:15-1(a), refers only to those acts set forth in sections a(1), (2), and (3) of the statute which elevate simple theft, or attempted theft, to the crime of robbery. We also determine that the phrase does not encompass other acts committed by an alleged accomplice after all elements necessary to constitute the crime of robbery have concluded.

[Whitaker, supra, ___ N.J. Super. at ___ (slip op. at 44).]

Here, unlike in Whitaker, the jury could conclude that defendant agreed to use force against Dillon as a part of, and to further, Coleman's crime involving the Lexus. So viewed, defendant's conviction as an accomplice does not run afoul of the teaching of Whitaker.

Thus, because the evidence supports a finding that defendant assisted in Coleman's crime involving the Lexus, there was sufficient evidence in the record to sustain defendant's conviction. Therefore, the denial of defendant's Rule 3:18-1 motion for acquittal and his Rule 3:20-1 motion for a new trial were proper as to defendant's participation as an accomplice to the crime involving the Lexus. We are satisfied that, but for any error in the charge on accomplice liability, the weight of the evidence was sufficient to convict defendant of acting as an accomplice to the crime involving the Lexus. Thus, there was no error in denying defendant's motions respecting count two of the indictment.

B. Robbery involving the Infiniti

Under the second scenario, defendant concedes that the evidence was sufficient to show that he was driving the Infiniti, that the Infiniti had been stolen two days earlier, and that he intentionally struck Officer Dillon's car in an attempt to flee the area. Defendant argues, however, that the State presented insufficient evidence that he was the person who stole Garramone's Infiniti two days earlier. Even if there was sufficient evidence of "theft," defendant argues, this theft occurred two days before the "force" that defendant allegedly used on Officer Dillon. He asserts that "[t]his 'theft' and 'force' were not sufficiently linked to constitute a robbery." Stated differently, defendant maintains that because the Infiniti was stolen two days earlier, the crime of theft was complete, and thus the assault was not committed in the course of that theft.

We agree with defendant that the theft of the Infiniti cannot satisfy the robbery charge because the evidence established that the theft of the Infiniti was complete two days earlier. A robbery, whether first- or second-degree, must arise from a theft. A theft is deemed complete when the perpetrator has reached a point of at least temporary safety. State v. Mirault, 92 N.J. 492, 500-01 (1983). Thus, if the defendant has reached a point of temporary safety, the defendant is no longer deemed to be "in the course of committing a theft," and this necessary element of robbery is not satisfied. Ibid.

The State argues that defendants were in the course of committing the theft for the entire two days because defendants never disposed of the stolen property and were still in possession of it when they struck Dillon's vehicle. This argument lacks merit. The fact that defendants fled from the officers on the date in question does not establish that defendants had not reached a point of temporary safety during the two intervening days. Under the State's reasoning, the crime of theft would never be complete so long as the individual was still in possession of the property, because he or she would constantly be in flight, avoiding apprehension; thus, if never caught, accepting the State's reasoning, a person could be in the course of committing the crime of theft indefinitely. We reject that reasoning and conclude that the theft of the Infiniti was complete well before defendant struck Dillon's vehicle.

Therefore, we conclude that the evidence was sufficient to warrant defendant's conviction for first-degree robbery as an accomplice to the robbery involving the Lexus. We also conclude that even after giving the State the benefit of all favorable inferences regarding defendant's conduct toward the Infiniti, the evidence was still insufficient and could not show that defendant's conduct on the day in question occurred while in the course of committing the theft of the Infiniti, as required by N.J.S.A. 2C:15-1.

The judge's error in denying defendant's Rule 3:18-1 motion as it pertained to the robbery involving the Infiniti does not, however, cause us to reverse the denial of defendant's Rule 3:18-1 and Rule 3:20-1 motions on the robbery count. The robbery charge that is contained in count two of the indictment was premised on two theories: the robbery involving the Lexus and the robbery involving the Infiniti. The verdict sheet required the jury to make a separate and independent determination with respect to each. Because the evidence is sufficient to justify defendant's conviction as an accomplice for the first-degree robbery involving the Lexus, and because the jury made a separate and independent determination concerning that robbery, the denial of defendant's Rule 3:18-1 and Rule 3:20-1 motions on count two must be affirmed despite defendant's meritorious argument concerning the robbery involving the Infiniti. Nothing in the record demonstrates that the jury's deliberations concerning the Infiniti in any way tainted its deliberations concerning the robbery involving the Lexus.

Indeed, the judge instructed the jurors that they were obliged to "separately" consider each "particular charge" based upon the evidence and the law. Juries are presumed to have followed a judge's instructions. State v. Burns, 192 N.J. 312, 335 (2007). Consequently, we conclude that defendant has not presented any meritorious basis upon which to disturb the judge's denial of his Rule 3:18-1 and Rule 3:20-1 motions as they pertain to the robbery count.

C. Jury charge on accomplice liability

In Point II, defendant also argues that even if the evidence was sufficient to sustain a first-degree robbery conviction, the jury charge on accomplice liability as it pertained to the robbery count was so improper that it was clearly capable of producing an unjust result. We agree.

Defendant did not object to the court's jury instruction when it was delivered; consequently, any error will be disregarded unless such error was "clearly capable of producing an unjust result." R. 2:10-2. "As applied to a jury instruction, plain error requires demonstration of '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. Chapland, 187 N.J. 275, 289 (2006)(quoting State v. Hock, 54 N.J. 526, 538 (1969)). "The alleged error is viewed in the totality of the entire charge, not in isolation." Ibid. "Even so, if the error is in a jury instruction that is 'crucial to the jury's deliberation on the guilt of a criminal defendant[,]' it is a 'poor candidate[] for rehabilitation' under the plain error theory." State v. Torres, 183 N.J. 554, 564 (2005)(quoting State v. Jordan, 147 N.J. 409, 422 (1997)).

Defendant points to the following defects in the jury instructions pertaining to his role as an accomplice in the robbery involving the Lexus and the use of the Lexus as a deadly weapon to assault Officer Uranyi:

The trial court's instructions . . . did not tell the jury that to find defendant guilty of first-degree robbery of the Lexus, the jury had to find beyond a reasonable doubt that defendant shared the same criminal purpose required of the substantive actor (Coleman). The court did not state that the jury had to find that defendant also intended to commit robbery of the Lexus while using it as a deadly weapon against the confronting police officer (Uranyi). The court did not explain at all how the accomplice liability principles it had discussed generally at the beginning of its charge applied to the jury's determination of robbery under the first scenario presented on the verdict sheet.

The court also did not tell the jury that even if the jury found that the substantive actor (Coleman) committed first-degree robbery of the Lexus, the jury could conclude that defendant was guilty of only a lesser offense, such as second-degree robbery, if they could not conclude beyond a reasonable doubt that he shared the same criminal purpose as Coleman, i.e., to commit robbery with the use of a deadly weapon required for the first-degree offense. Once again, while the court read this portion of the model charge in its general charge on accomplice liability given in the beginning of the instructions, the court did not relate these general principles to the actual robbery offense and explain how the elements and accomplice principles applied to the State's proofs under this first scenario.

"[W]hen a prosecution is based on the theory that a defendant acted as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). "[A] jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that 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 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)).

In addition, "when an alleged accomplice is charged with a different degree of offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Ibid. (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). "'[E]ach [defendant] may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind.'" Ibid. (quoting State v. Fair, 45 N.J. 77, 95 (1965)). The Court has "adopted, with approval, Bielkiewicz's error analysis." State v. Ingram, 196 N.J. 23, 39 (2008).

Here, we agree with defendant that the trial court's instruction on accomplice liability did not comply with the mandate of Bielkiewicz. The judge's charge did not instruct the jury that an accomplice can have a different mental state from that of the principal, and thus can be found guilty of a lesser-included offense. Because defendant was charged with the lesser-included offense of second-degree robbery for both scenarios, the Lexus and the Infiniti, the jury should have been instructed that it could find that defendant had a different mental state than the principal. Specifically, the jury should have been instructed that even if it found that the principal, Coleman, intended to use deadly force when he rammed the Lexus into Officer Uranyi's vehicle, it could find that defendant only intended that Coleman use force, but not deadly force, in which case defendant would have been guilty of second-degree robbery.

Instead, the judge instructed the jury, when weighing the charges against defendant, to consider the specified lesser included offenses; however, the judge never gave the jury the instruction that Bielkiewicz requires. By failing to select the model jury charge that incorporates the mandate of Bielkiewicz, the judge omitted the following critical language:

Now this responsibility as an accomplice may be equal and the same as he/she who actually committed the crime(s) or there may be responsibility in a different degree depending on the circumstances as you may find them to be.

. . . .

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

. . . .

Now, as I have previously indicated, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice of X with full and equal responsibility for the specific crime(s) charged. If you find the defendant guilty of the specific charge(s), then you need not consider any lesser charge(s).

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 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].

[Model Jury Charges (Criminal), "Liability for Another's Conduct (Where defendant is charged as accomplice and jury is instructed as to lesser included charges.)" (1995).]

Thus, by omitting the above instruction that Bielkiewicz requires, the judged failed to instruct the jury that each party could have entered into the commission of each crime with a different intent. Specifically, the judge neglected to instruct the jury that it could only find defendant guilty as an accomplice with responsibility equal to the principal if it found that defendant had the same mental state as the principal. The judge's instructions did not focus the jury's attention on a view of the facts that would have resulted instead only in a conviction for second-degree robbery: if defendant shared only an intent to have Coleman use force, but not deadly force, then defendant would have been an accomplice to only a second-degree robbery. The latter scenario could have occurred if, for example, defendant only intended that Coleman aim the Lexus at Uranyi's vehicle to "purposely put[] him in fear of immediate bodily injury[,]" N.J.S.A. 2C:15-1(a)(2), but did not intend Coleman to actually strike Uranyi's vehicle, in which case defendant would only have been guilty of second-degree robbery. N.J.S.A. 2C:15-1(b).

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 second-degree robbery, while the principal, Coleman, could have rationally been found to have committed a first-degree robbery.

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 informed that defendant was found guilty as an accomplice of the robbery involving the Lexus. However, the thrust of the State's case was that defendant's culpability for first-degree robbery was predicated upon his alleged shared intent with the principal, who used the Lexus as a deadly weapon. 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 first-degree robbery, and if defendant acted in concert with the principal in the incident, that defendant must also be found guilty of first-degree robbery.

We do recognize, however, that there is a version of the evidence that could lead to the conclusion that the error was harmless. Specifically, defendant, as an accomplice to the theft of the Lexus, before he or his co-defendants reached a point of even temporary safety, used the vehicle he was operating, the Infiniti, as a deadly weapon, to assault Dillon and cause him to suffer serious bodily injury. His act in doing so made him an active participant in the theft of the Lexus and elevated that crime to first-degree robbery because he "purposely inflict[ed] . . . serious bodily injury [and] use[d] . . . a deadly weapon," N.J.S.A. 2C:15-1(b), "in immediate flight after the" theft. N.J.S.A. 2C:15-1(a).

In this scenario, the jury would not have been required to analyze whether Jones shared Coleman's attempt to use the Lexus as a deadly weapon because the deadly weapon element would have been satisfied by Jones's own use of the Infiniti as a deadly weapon to assist Coleman in his crime involving the Lexus. However, nothing in the judge's instructions to the jury focused the jury's attention on this possible scenario. Consequently, we are unable to determine which scenario the jury relied on in returning its first-degree verdict. 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 on count two.

IV.

In Point III, defendant argues that even if the State's proofs could have sustained a robbery conviction under one of the scenarios presented on the verdict sheet, or under a third scenario combining the acts of theft of the Lexus and driving the Infiniti at Officer Dillon, the jury was not charged that it must unanimously agree on what acts the defendant committed in order to find him guilty of robbery. Defendant maintains that the absence of such an instruction violated his right to a unanimous jury verdict.

Defendant relies on State v. Gentry, 183 N.J. 30 (2005) and State v. Frisby, 174 N.J. 583 (2002). That reliance is misplaced. In Gentry, the Court held that because two different acts with two different victims could have formed the basis of defendant's robbery conviction, the judge's failure to issue a unanimity instruction was error. 183 N.J. at 32. In Frisby, the State alleged defendant had caused the child's death either by abandoning him at a motel or by deliberately inflicting injuries. 174 N.J. at 591. The trial court charged the jury that the relevant element of the offense was satisfied if it found that either of the two scenarios existed. Id. at 599. The Court held that a specific unanimity instruction should have been given for the endangering the welfare of a child count because the State was proceeding on two mutually inconsistent theories of defendant's culpability. Ibid.

Here, although the form of the indictment created the possibility of a problem, unlike in Frisby and Gentry, the two different scenarios were not combined in a single question on the verdict sheet. Instead, they were separated into two different subsections. Specifically, the verdict sheet was phrased as follows:

2a) As to the crime of Robbery of the Lexus (using a deadly weapon accomplice), we the jury, find Defendant

Not Guilty Guilty

2b) As to the crime of Robbery of the Lexus (not using a deadly weapon accomplice), we, the jury, find Defendant

Not Guilty Guilty

2c) As to the crime of Robbery of the Infiniti (using a deadly weapon), we, the jury, find Defendant

Not Guilty Guilty

2d) As to the crime of Robbery of the Infiniti (not using a deadly weapon), we, the jury, find Defendant

Not Guilty Guilty

Unlike in Gentry and Frisby where the jury was instructed that their vote was unanimous even if the individual jurors disagreed as to which scenario was applicable, here the two scenarios were clearly separated under different subsections and the jury was required to make a separate decision for each. The two scenarios were not combined. In particular, the verdict sheet did not read "in the course of committing a theft of the Lexus and/or Infiniti, defendant inflicted bodily injury on Uranyi and/or Dillon." Rather, the jury was required to decide the separate issues of whether a robbery was committed with (1) the theft of the Lexus and injury of Uranyi, and/or (2) the theft of the Infiniti and injury of Dillon.

By preparing the verdict sheet in this manner, the court prevented a Gentry or Frisby situation from arising and forced the jury to decide each issue unanimously. The jury could not reach an ultimate verdict of robbery without unanimously agreeing on the elements of robbery for at least one scenario. Moreover, the structure of the verdict sheet prevented the jury from confusing the elements in one scenario with the other scenario and consequently reaching an impermissible verdict i.e., by finding defendant guilty of theft of Lexus, not guilty of assault of Uranyi, guilty of assault of Dillon, but not guilty of the theft of Infiniti. For these reasons, we reject the unanimity argument defendant raises in Point III.

V.

In Point IV, defendant argues that the jury charges for receiving stolen property and aggravated assault on Officer Uranyi were incomplete and insufficient. Defendant maintains that "charging the jury that it could find defendant guilty of [receiving stolen property] if it found that defendant was in exclusive possession of the stolen Infiniti 'in the absence of a satisfactory explanation,' was harmful error." Defendant asserts that N.J.S.A. 2C:20-7 no longer permits an inference of guilty knowledge when a defendant has unexplained possession of stolen property. Defendant argues that although the statute does provide certain circumstances where such inference is permitted, those circumstances do not exist here. He further argues that charging the inference violated his right to remain silent because he was the only source who could explain his possession of the Infiniti.

A person is guilty of receiving stolen property "if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen." N.J.S.A. 2C:20-7. Subsection (b) establishes the circumstances under which it may be presumed that the defendant had knowledge that the property was stolen:

The requisite knowledge or belief is presumed in the case of a person who:

(1) Is found in possession or control of two or more items of property stolen on two or more separate occasions; or

(2) Has received stolen property in another transaction within the year preceding the transaction charged; or

(3) Being a person in the business of buying or selling property of the sort received, acquires the property without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess and dispose of it; or

(4) Is found in possession of two or more defaced access devices.

[N.J.S.A. 2C:20-7(b).]

In this case, the judge first charged the jury on the elements of theft in connection with count three. Although the judge did not label it as "theft by unlawful taking or disposition of moveable property," N.J.S.A. 2C:20-3(a), that was the statute that he charged when he instructed the jury on count three and described it as "theft." During the jury charge, the judge instructed the jury that it could draw an inference that defendant was a thief from "unexplained and exclusive possession of a stolen property shortly after a theft." The judge only briefly described this inference.

Subsequently, the judge proceeded to instruct the jury on count four, receiving stolen property, which he described as "theft by knowingly receiving moveable property." The judge essentially followed the model jury charge for this crime.

Upon completion of the charges for counts three and four, the judge stated:

And one final instruction with regard to the law of theft. If you find that a defendant was in possession of stolen property within a reasonable, short period of time after the theft, you may infer that the defendant is a thief. I think I went over this already. But just to reiterate.

The judge then proceeded to give the model jury charge for this inference, which is entitled, "Supplemental Charge on Theft (To Be Used If Defendant is Found to be in Possession of the Stolen Property Within a Short Time, After the Theft, Hours or Days)".

In light of: (1) the timing of the presumption charge i.e., that it was given immediately after both the theft charge and the receiving stolen property charge were given; (2) the judge's description of the receiving stolen property charge as "theft by knowingly receiving moveable property"; and (3) the judge's statement that the presumption instruction applied to "the law of theft," it is unclear from the record whether the judge intended his instruction concerning the presumption to apply to both theft charges or not.

However, the presumption instruction should only be applied to N.J.S.A. 2C:20-3 (count three), but not N.J.S.A. 2C:20-7 (count four). This lack of clarity of the charge could have easily confused the jury and resulted in the jury impermissibly applying the presumption to the charge of receiving stolen property in count four. Consequently, we conclude that because this error was clearly capable of producing an unjust result, see R. 2:10-2, defendant's conviction on count four must be reversed.

In Point IV, defendant also challenges the sufficiency of the jury charge on counts five and six, aggravated assault on a police officer. He contends that the jury charge for count five was insufficient because "it did not relate the general accomplice liability concept to the specific offense at issue. The trial court did not even mention accomplice liability in discussing this aggravated assault charge, even though defendant's alleged guilt was based entirely on accomplice liability principles . . . ."

After the judge gave the jury the model jury charge for aggravated assault on a law enforcement officer, the judge stated:

So the questions on the verdict sheet that relate to this particular count of the indictment, asks you to consider for each defendant whether they are guilty or not guilty. And, in that regard, there was also for your consideration accomplice liability as the particular questions are framed. And there you would have to employ the Court's instruction about accomplice liability in reaching a verdict as to the given question.

Thus, contrary to defendant's assertion, the judge did relate accomplice liability principles to the aggravated assault charge. Moreover, because the jury was not charged on any lesser included offenses pertaining to the two aggravated assault counts, the Bielkiewicz error that affected count two is not present here. Consequently, we conclude that defendant's argument in Point IV lacks merit.

VI.

In light of our determination that defendant's conviction on counts two and four must be reversed and remanded for a new trial, we need not address the sentencing argument defendant raises in Point V respecting the sentence imposed on count two.

Defendant's convictions on counts three (theft), five (aggravated assault), six (aggravated assault), and seven (resisting arrest) are affirmed. His convictions on counts two (robbery) and four (receiving stolen property) are reversed and remanded for a new trial.

Affirmed in part; reversed in part and remanded.

 

Defendant was tried jointly with co-defendants Kerman Coleman and Kenneth Daniels. The appeals have not been consolidated, but have been calendared for disposition back-to-back. We have issued separate opinions for Coleman and Daniels, under docket numbers A-2099-06 and A-1341-06, respectively.

The judge made the same inquiry of all other prospective jurors who heard the remark.

The model charge in footnote four to this paragraph provides:

In instructing jury as to lesser included 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).

(continued)

(continued)

43

A-0968-06T4

October 23, 2008