STATE OF NEW JERSEY v. RICHARD GREEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0680-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD GREEN,

Defendant-Appellant.

_______________________________

June 27, 2012

 

Submitted March 28, 2012 - Decided

 

Before Judges Axelrad, Sapp-Peterson, and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-01-0028.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

 

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Richard Green, appeals his conviction, following a jury trial, for felony murder, N.J.S.A. 2C:11-3a(3) (Count One); second-degree armed robbery, N.J.S.A. 2C:15-1a(1), as a lesser-included offense of first-degree robbery (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Four). Defendant also appeals the forty-year aggregate prison sentence imposed. We affirm.

The evidence presented to the jury upon which the convictions were based disclosed that during the early morning hours of May 9, 2005, Plainfield police were dispatched to the area outside an apartment building located at 709 West Front Street after Central received a report of a gunshot. Upon their arrival, police found the victim, Manuel Perez, lying face down and bleeding from the right side of his head. Paramedics arrived shortly thereafter and pronounced Perez dead within moments of their arrival. They noted, however, that his skin was cool and surmised that Perez had been dead for "some time." No witnesses came forward to the scene at that time.

The investigation into Perez's death led police to defendant, whom Detective Francis Wilson was already interviewing in connection with an unrelated matter. After taking a statement in the unrelated matter, Detective Wilson asked defendant whether he would be willing to answer questions related to Perez's death. Based upon information Detective Wilson received from defendant at that time, Detective Wilson called Detective Harvey Barnwell, the case investigator from the Union County Prosecutor's Office. After Detective Wilson summarized for Detective Barnwell the information given by defendant, Detective Barnwell suggested they re-advise defendant "of his constitutional rights so that [they] could separate the two cases." After re-administering Miranda1 warnings and after defendant waived his rights, Detective Wilson proceeded to take a written statement from defendant about what, if any, involvement he may have had in the shooting.

Defendant initially told Detective Wilson he and a man named Ronald Cherry were involved in the incident, but it was Cherry who actually shot Perez. During the course of this statement, Detective Wilson learned Cherry was incarcerated at the time of the shooting and he confronted defendant with this information. Defendant was then asked if he was still aware of his Miranda rights, to which defendant respondent affirmatively. At that time, another written statement was taken in which defendant stated that his friend, Troy Keets, was really the person with him the night Perez was shot. Defendant told Detective Wilson when he and Keets saw Perez looking to purchase drugs, Keets ordered defendant to get "the other" gun, which was broken. He admitted they planned to rob Perez. Defendant told the detective he struck Perez on the back of his neck with the broken gun, forcing Perez to bump into Keets, which caused Keets's gun to go off, fatally wounding Perez. Keets then repeatedly told defendant that he "didn't mean to do it."

Witnesses from the neighborhood, who knew defendant and Keets, testified. Carol Spann, a resident of 709 West Front Street, testified that she saw defendant and Keets sitting together outside 709 West Front Street the night of the murder, she heard a "pop," and she believed she heard Keets saying, "Let's get out of here." Jamice Purnell, who lived at 705 West Front Street, testified that defendant and Keets were in her house prior to the shooting but eventually left. She did not hear a gunshot, but her grandmother did. She went to her grandmother's room to look outside, and when she returned to her room, defendant and Keets were already there.

Purnell's aunt, Antoinette Whitley, who also lived at 705 West Front Street, testified that she saw Keets take a gun outside prior to the shooting. She heard a gunshot shortly after the two men left. Defendant and Keets then returned to the room afterwards. Keets said the shooting was an accident and defendant remarked that Keets did "something stupid."

Damian Brown told police that "a few days after" Perez's death, he received a call asking him to pick up a man who wanted to sell a gun. He gave a physical description of the man he picked up that fit Keets's description, but was unable to pick out Keets's picture from a photo array. At trial, however, he testified the gun was his, and Keets and defendant were doing him a favor "to sell it." He claimed his statement to the Prosecutor's Office "was different" than reported, but when confronted with his statement, he agreed that nowhere in the statement did he say the gun belonged to him.

Dwayne Fleming, a former county jail inmate, testified that defendant visited his cellmate on June 27, 2005. According to the cellmate, defendant said he shot a Mexican individual at 709 Front Street because the individual had "stepped on his toes selling drugs."

Defendant did not testify, nor did any witnesses testify on his behalf. Defense counsel argued before the jury that police coerced the statements he gave to them, that felony murder was not a possible charge because Keets only intended to collect money he was owed, and, therefore, there was no robbery.

The jury convicted defendant on all counts except the first-degree robbery charge, finding defendant guilty of only second-degree robbery. Defendant thereafter moved for a judgment notwithstanding the verdict or, alternatively, a new trial. The court denied the motion. At sentencing, the court imposed a forty-year aggregate prison term, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following points for our consideration:

POINT I

 

BY PROVIDING THE JURY WITH A FLAWED AND MISLEADING EXAMPLE OF ACCOMPLICE LIABILITY IN ITS INSTRUCTIONS, THE COURT CREATED THE POSSIBILITY THAT DEFENDANT WOULD BE WRONGLY CONVICTED AS AN ACCOMPLICE TO ROBBERY, AND, ACCORDINGLY, CONVICTED OF FELONY MURDER. (NOT RAISED BELOW).

 

POINT II

THE COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL ON THE ROBBERY AND FELONY MURDER CHARGES.

 

POINT III

THE COURT ERRED IN PERMITTING THE PROSECUTOR, ON DIRECT EXAMINATION OF JAMICE PURNELL, TO READ SUBSTANTIAL PORTIONS OF PURNELL'S PRIOR STATEMENT INTO THE RECORD, IN VIOLATION OF PROCEDURAL REQUIREMENTS. (NOT RAISED BELOW).

 

POINTIV

BECAUSE DEFENDANT'S FINAL JUNE 3rd STATEMENT WAS A PRODUCT OF PSYCHOLOGICAL COERCION, THE COURT ERRED IN RULING IT ADMISSIBLE AT TRIAL.

POINTV

 

THE FORTY-YEAR TERM IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL RELEVANT CIRCUMSTANCES. IN ADDITION, THE COURT'S ANALYSIS OF SENTENCING FACTORS WAS FLAWED AND INADEQUATE.

I.

Defendant first argues the trial court erred when it provided a misleading example of accomplice liability in its jury instructions, creating the possibility defendant would be wrongly convicted as an accomplice to robbery and felony murder. Because there was no objection to the court's instruction, we review the claimed error under the plain error standard. R. 2:10-2. Under Rule 2:10-2, errors or omissions will be disregarded by the appellate court unless they were "clearly capable of producing an unjust result." An error is capable of producing an unjust result if, in terms of its effect in a jury trial, the magnitude of the error was "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).

"[C]lear and correct jury instructions are essential for a fair trial." State v. Brown, 138 N.J. 481, 522 (1994). "A charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations. Thus, the court must explain the controlling legal principles and the questions the jury is to decide." State v. Martin, 119 N.J. 2, 15 (1990).

Under N.J.S.A. 2C:2-6(c),

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;

 

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

 

(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or

 

(2) His conduct is expressly declared by law to establish his complicity.

 

"[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.'" State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v. Fair, 45 N.J. 77, 95 (1965)). Here, the accomplice liability charge applied to the charge of robbery. A person is guilty of robbery if, in the course of committing a theft, he:

(1) Inflicts bodily injury or uses force upon another; or

 

(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or

 

(3) Commits or threatens immediately to commit any crime of the first or second degree.

 

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 trial court, in its instructions on accomplice liability, provided the following example to the jury:

Your friend calls you on the phone and says I need a ride to the bank, I have to make a withdrawal. As you pull up in front of the bank with your friend he pulls out a gun and says I'll be right back. You see the gun and you now realize he is not making a withdrawal, he is going to rob the bank. You sit and wait in the car for him to return.

 

Your friend comes running out of the bank and explains let's get out of here before the cops arrive. In this example you now have -- you have now shared the purpose for him to commit the act. You knew he had the gun, you assisted him or aided him in committing the crime.

 

You did this by driving him to the bank, waiting for him, and then driving him away. You did all of this knowing he was going to rob the bank. You shared the purpose with him to commit the crime. Therefore, you are an accomplice. The difference between the two examples is the phrase share the purpose to commit the crime.

Shortly after reciting the disputed example above, the court specifically instructed the jury that it should only convict defendant under accomplice liability if he had the requisite mental state:

It is not sufficient to prove only that the defendant had knowledge that another person was going to commit the crime charged. The State must prove that it was . . . defendant's conscious object that the specific conduct charged be committed.

 

To reiterate, the elements of accomplice liability are, one, that an offense was committed, two, that this defendant did aid, or agree, or attempt to aid another in committing the offense, three, that the defendant's purpose was to promote or facilitate the commission of the offense, four, that this defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act.

 

We are satisfied the additional instructions to the jury following the example made clear to the jury that mere awareness that another person will commit a crime, without the specific intent that the crime be committed, will not suffice for accomplice liability. The example did not accurately illustrate the required mental state, but any confusion was immediately clarified through the additional instructions. Also, defendant admitted in his statement to police that he and Keets shared an intention to rob the victim. Thus, we conclude any confusion resulting from the example was not an error clearly capable of producing an unjust result.

II.

Defendant next asserts the trial court committed reversible error when it denied his motion for a new trial on the robbery and felony murder charges because the evidence before the jury was solely based upon defendant's uncorroborated confession. We disagree.

"The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." R. 3:20-1. However, a trial judge will set aside a jury verdict as against the weight of the evidence only where "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." Ibid.

First, there was sufficient evidence presented during the trial corroborating defendant's statements to Detective Wilson. Witnesses placed defendant and Keets at the scene prior to the shooting; saw Keets leave the apartment with a gun; heard a gunshot; heard Keets say, "Let's get out of here"; saw defendant and Keets back in the apartment shortly after the gunshot was heard; heard Keets say the shooting was an accident; and heard defendant say Keets did "something stupid." Additionally, the medical examiner's testimony that Perez had a one-and-one-quarter-inch laceration on his head was consistent with a strike to the head with a gun, further corroborating defendant's confession that he struck Perez in the head with his gun. Because of the corroborating evidence and testimony, the trial court properly denied defendant's motion.

III.

Defendant next argues the trial court erred in permitting the prosecution to read substantial portions of Purnell's prior statement into the record during her direct examination at trial. "[A]n evidentiary determination made during trial is entitled to deference and is to be reversed only on a finding of an abuse of discretion." Estate of Hanges v.Metro. Prop. & Cas.Ins. Co., 202 N.J. 369, 374 (2010). The rationale underlying such deference stems from the principle that "the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Id. at 383-84. Therefore, we will "uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record." MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007). Even when the dispute concerns a trial judge's evaluation of underlying facts, "we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." New Jersey Div.of Youth and FamilyServs. v. M.M., 189 N.J. 261, 279 (2007). Additionally, because defense counsel failed to object when portions of Purnell's testimony were read into the record, we view the claimed error under the "plain error" standard. Martin, supra, 119 N.J. at 15; R. 2:10-2.

A witness's prior statement, although hearsay, may be read into the record if the witness is unable to testify fully and accurately because of insufficient present recollection. N.J.R.E. 803(c)(5). Conditions precedent to the reading of such statements into the record require that the statement be contained in a writing, that the statement was recorded contemporaneously or close in time to the subject matter of the statement, that the statement was made by the witness or at the witness's direction for the purpose of recording the statement at the time that it was given, and that the statement concerns a matter about which the witness had personal knowledge at the time the statement was given. Ibid. Although the statement may be read into the record, it may not be introduced as an exhibit. Ibid.

During her testimony, Purnell repeatedly testified as to her lack of recollection. She was given an opportunity to review her statement but continued to testify as to a lack of recollection of specific facts as set forth in her previous statement. While the prosecutor did not ask Purnell whether her recollection had been refreshed after reviewing her prior statement a number of times, defendant does not dispute that the timing of the statement was in temporal proximity to the shooting, that it concerned a matter about which Purnell, at least at the time she provided the statement, had personal knowledge, and that Purnell actually provided the statement. Consequently, any error in permitting the prosecutor to read portions of her testimony to the jury, without conducting a formal N.J.R.E. 104 hearing and without going through all of the prerequisites for its use, was harmless.

IV.

Defendant's remaining contentions that his confession was the product of psychological coercion and the sentence imposed was manifestly excessive are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.

Before giving his first statement, defendant acknowledged that he understood what was being said to him and had been advised and understood his constitutional rights prior to starting the interview. He not only waived his rights and agreed to talk, but he also signed and dated an "Advisement of Constitutional Rights" form. When detectives took the second statement approximately three hours later, defendant confirmed he was still aware of his Miranda rights and still wished to speak about the incident at 709 West Front Street. At the end of the second statement, defendant was asked whether he gave the statement under his own free will, having his constitutional rights in mind, and he responded affirmatively. Further, as the trial judge found, "the rights were gone over again during the videotape that was played later [that] evening, and during each of the statements." There is simply no basis upon which to conclude that defendant's waiver of his rights was anything other than voluntary, knowing, and intelligent. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.

Turning to the forty-year aggregate sentence imposed, the court appropriately weighed the aggravating factors and found no mitigating factors. Although defendant eventually cooperated with the police, he initially lied and did not fully cooperate until confronted with his falsehood. N.J.S.A. 2C:11-3(b)(1) authorizes the sentencing court to impose a specific term between thirty years and life, of which thirty years must be served without parole. Defendant's six failed opportunities at successfully completing probation while a juvenile and his conviction for escape as an adult evidence his complete disregard for the bounds of law, for which there is not only a specific need to deter defendant but there is a related general need to deter others similarly situated. Therefore, imposition of the forty-year term does not shock the judicial conscience. Statev. Doss, 310 N.J. Super. 450, 461 (App. Div. 1998); State v. Martin, 235 N.J. Super. 47, 59-60 (App. Div.), certif.denied, 117 N.J. 669 (1989). However, we remand for amendment of the Judgment of Conviction to reflect that defendant was convicted of felony murder, N.J.S.A. 2C:11-3a(3), and that the conviction was not the result of a negotiated plea.

Remanded for correction of the Judgment of Conviction but otherwise affirmed in all respects.

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