STATE OF NEW JERSEY v. CARNELL DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1051-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARNELL DAVIS,

Defendant-Appellant.

___________________________________

May 18, 2012

 

Submitted April 23, 2012 - Decided

 

Before Judges Grall and Skillman.

 

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment

No. 06-07-2304.

 

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

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

A jury found defendant guilty of two counts of armed robbery, in violation of N.J.S.A. 2C:15-1; possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); and possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a). The trial court sentenced defendant to concurrent mandatory extended terms of fifty years imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant to a concurrent extended fifteen-year term for possession of a firearm for an unlawful purpose and a concurrent seven-year term for possession of a handgun without a permit.

Defendant's convictions were based on an armed robbery committed on the streets of Newark during the evening of September 15-16, 2005. The two victims, Jose Simoes and Luis Silva, walked from a bar to Silva's car. As they approached Silva's car, a man Simoes and Silva later identified as defendant was sitting on the hood.

Silva unlocked his vehicle by remote control. Defendant inquired as to whether the vehicle was Silva's, and Silva confirmed that it was. As Silva began entering the driver's side front door of the vehicle, defendant lifted his t-shirt to reveal a weapon, which Simoes later identified as a .38 caliber silver revolver tucked into the waistband of defendant's pants. Silva managed to lock himself inside his vehicle and, despite the fact that defendant was pointing a gun at him and "scream[ing]" for Silva "not to move and not to start the car," Silva drove away, leaving Simoes behind. Silva testified that defendant pulled the trigger of his gun twice in Silva's direction at that time, but it did not fire. Silva drove to a nearby intersection, called the police from his cell phone, and then returned to the scene, where he witnessed defendant pointing a gun at Simoes and removing items from his pockets.

Simoes testified that, upon Silva's escape, defendant approached him and pressed the gun to his stomach, demanding that Simoes turn over his money. With the gun still in place, defendant reached into Simoes' back pocket and retrieved his wallet, containing between $100 and $120. Defendant next attempted to remove Simoes' watch from his wrist but struggled with the lock. Simoes shook his wrist, causing defendant to drop the money he held in his left hand, and defendant then pulled the trigger of his gun twice, but it did not fire. As defendant retrieved the fallen money, Simoes broke away, running to the next block where Silva was waiting in his vehicle. Defendant, unsuccessfully attempting to fire at Simoes twice more as he escaped, ultimately fled into the door of a nearby building.

After the robbery, both victims gave descriptions of the perpetrator to the police, which included that he was wearing a red shirt with numbers on it. Both victims made identifications of defendant from photographic arrays the police showed to them shortly after the crime and identified him in court at trial.

The State also presented testimony by Michael Thomas, a security guard in an apartment building near the scene of the robbery, who said that he saw defendant, who he knew, in the area around the time of the robbery wearing a red football jersey with white numbers on it, and Yvette Mendez, a resident of an apartment near the scene of the robbery, who said that defendant came to her apartment around midnight, asked her for a bag, put a folded red jersey in it, and later left with the bag.

Defendant was arrested in his apartment after Silva and Simoes identified him in the photographic arrays. At that time, a red jersey with the number 20 was found in the apartment. Thomas and Silva testified that this shirt looked like the shirt defendant had been wearing at the time of the robbery.

Defendant did not testify or present any witnesses at trial.

I.

 

 

Defendant presents two arguments regarding the armed robbery of Silva. First, he argues that the evidence was insufficient to support this conviction. Second, he argues that even if the evidence was sufficient, the trial court did not properly instruct the jury regarding this offense. We conclude that the evidence was sufficient to support defendant's conviction for robbing Silva but that the jury instruction regarding this offense was inadequate. Therefore, we reverse defendant's conviction for that robbery and remand for a new trial.

Defendant's arguments regarding his conviction for robbing Silva are based on the fact that Silva drove away from the scene immediately after defendant pointed a gun at him and that defendant did not take any of Silva's property or demand that Silva give him anything.

Robbery is proscribed by N.J.S.A. 2C:15-1(a), which provides that:

. . . 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 immediately bodily injury; or

 

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

 

Anact shall be deemedto be included inthe phrase "in thecourse of committing atheft" if it occursin an attempt tocommit theft or in immediate flight after the attempt or commission.

 

[Emphasis added.]

 

Through the enactment of N.J.S.A. 2C:15-1(a), the Legislature "adopt[ed] a more expansive concept of robbery" than had existed before enactment of the Code of Criminal Justice, which "permits a conviction for robbery on the basis of an attempted theft where the other elements are present." State v.Carlos, 187 N.J. Super. 406, 413-14 (App. Div. 1982).

A person is guilty of an attempt to commit a crime if, acting with the requisite culpability for that crime, he

[p]urposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

 

[N.J.S.A. 2C:5-1(a)(3)].

In order to qualify as a "substantial step," conduct must be "strongly corroborative of the actor's criminal purpose." N.J.S.A. 2C:5-1(b).

Applying these provisions to an alleged robbery based on an attempt to commit a theft, our Supreme Court has held that:

[A] defendant can be convicted of robbery, even if the theft is unsuccessful, if he or she (1) purposely takes a substantial step (2) to exercise unlawful control over the property of another (3) while threatening another with, or purposely placing another in fear of, immediate bodily injury.

 

[Statev. Farrad, 164 N.J. 247, 258 (2000).]

 

Defendant's conduct could have been found by the jury to have satisfied these prerequisites of a robbery based on an attempted theft. Defendant's act of pointing a gun to Silva's head and telling him not to move threatened him with immediate bodily injury; the fact that defendant subsequently demanded and obtained money from Simoes could reasonably support an inference that defendant had the intent also to take money or other valuables from Silva; and defendant's pointing of a gun at Silva constituted a "substantial step" in the commission of that theft.

However, the trial court failed to instruct the jury regarding the attempted theft element of the alleged robbery of Silva. Although the court instructed the jury generally that "an actor is considered to be in the course of committing a theft if it occurs in an attempt to commit the theft, during the commission of the theft, itself, or in immediate flight after the attempt or commission[,]" it did not thereafter give the jury specific instructions regarding attempted theft. Consequently, the jury found defendant guilty of the armed robbery of Silva, which had to have been based on an attempted rather than an actual theft from Silva, without receiving any instruction regarding the attempted theft element of that alleged robbery.

In Carlos, supra, 187 N.J. Super. at 415-16, we reversed the defendant's convictions for armed robbery based on attempted thefts because of the same deficiency in the jury instructions as in this case. The defendant in Carlos entered the office of a gas station, pointed a gun at all four occupants, and ordered them to lie on the floor, but only obtained money from two of the four. Id. at 410. The court concluded that the evidence could have supported the defendant's convictions for the armed robberies of the two victims from whom he did not obtain any money based on an attempted theft from one and joint constructive possession by the other of some of the money taken. Id. at 415-17. However, because the court failed to instruct the jury with respect to either attempted theft or joint constructive possession, defendant's convictions for those two robberies had to be reversed. Ibid.; see also State v.Gonzalez, 318 N.J. Super. 527, 534-36 (App. Div. 1999).

The State argues that the trial court's failure to instruct the jury regarding attempted theft did not constitute plain error. However, attempted theft was one of the elements of the alleged robbery of Silva. Instructions regarding the elements of a criminal offense are an indispensable component of the jury instructions in a criminal case. See State v. Burgess, 154 N.J. 181, 185-86 (1998). Therefore, the omission of one of those elements will almost invariably require a reversal of a conviction for that offense. See State v.Vick, 117 N.J. 288, 289-91 (1989). There is no reason for us to depart from that general rule in this case.

Indeed, we note that during its deliberations the jury asked, "Does one have to have property taken in order to be considered robbed?" and also, "Must the perpetrator demand property from victim for it to be considered robbery?" These questions would seem to indicate that the jury was puzzled by the fact that defendant was charged with robbing Silva even though he had not obtained or demanded money or other property from him. An instruction regarding attempted theft would have been directly responsive to the jury's question. However, the trial court answered the jury's questions by simply repeating its original deficient instructions regarding armed robbery.

II.

 

 

The Public Defender's brief on defendant's behalf presents the following argument:

AN INADEQUATE JURY INSTRUCTION ON IDENTIFICATION, FAILING TO PROVIDE FACTUAL CONTEXT IN TERMS OF CONFLICTING EVIDENCE ON RELIABILITY AND OPPORTUNITY TO OBSERVE, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV, N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

 

In addition, defendant has submitted a pro se supplemental brief, which presents the following arguments:

POINTI:

 

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN:

 

(a) DEFENSE COUNSEL MOTIONED THE COURT TO DISMISS THE WADE HEARING BECAUSE COUNSEL BELIEVED HE HAD THE BURDEN TO PRESENT A COLORABLE APPLICATION TO STRIKE THE OUT-OF-COURT IDENTIFICATION OR TO ASK THE COURT TO EXCLUDE IT. COUNSEL'S DECISION TO DISMISS THE WADE HEARING REPRESENTED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE IT WAS THE STATE WHO HAD FAILED TO MEET ITS BURDEN OF PROVING BY CLEAR AND CONVINCING EVIDENCE THAT THE IDENTIFICATIONS OF THE VICTIMS HAD A SOURCE INDEPENDENT OF THE POLICE CONDUCTED IDENTIFICATION PROCEDURES, WHICH WAS ALSO ACKNOWLEDGED BY THE JURY.

 

(b) COUNSEL MISTAKENLY TOLD THE JURY THAT THE PICTURE THE ROBBERY SQUAD USED IN THE PHOTO ARRAY WAS DEFENDANT'S ARREST PHOTO.

 

(c) COUNSEL FAILED TO OBTAIN A COPY OF THE SECURITY TAPE SO THAT DEFENDANT COULD EXAMINE IT.

 

POINTII:

 

DEFENDANT WAS DENIED A FAIR TRIAL IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTION WHEN THE STATE INTRODUCED INTO EVIDENCE A PRE-ARREST PHOTO ARRAY WHICH SUGGESTED TO THE JURY THAT DEFENDANT HAS A CRIMINAL HISTORY, PARTICULARLY WITH THE ROBBERY SQUAD.

 

These arguments are clearly without merit. R. 2:11-3(e)(2). However, we consider it appropriate to comment upon defendant's argument that the trial court's identification instruction was inadequate.

"[W]hen identification is a fundamental or an essential issue at trial, 'the defendant ha[s] a right to expect that the appropriate guidelines w[ill] be given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness' of in-court identifications." State v.Robinson, 165 N.J. 32, 41 (2000) (quoting Statev. Green, 86 N.J. 281, 292 (1981)). However, a trial court is not required to refer to the facts of the case, including any perceived weaknesses in the State's identification evidence, in its instructions regarding identification evidence. Id. at 41-45. Although "the jury must be assisted in critically evaluating the State's evidence[,] . . . 'our judicial system confers this responsibility upon defense counsel rather than the trial court.'" Id. at 45 (quoting Statev. Walker, 322 N.J. Super. 535, 551 (App. Div.), certif. denied, 162 N.J. 487 (1999)).

The trial court's instructions regarding the identification evidence in this case fully conformed with the Model Jury Charges then in use, modified to include the admonitions required by State v.Romero, 191 N.J. 59, 75-76 (2007), which was decided only one day before those instructions were given. The court's lengthy instructions regarding the identification evidence included the following:

You must determine, therefore, not only whether the State has proven each and every element of the offense charged beyond a reasonable doubt; but also, whether the State has proven beyond a reasonable doubt that this defendant is the person who committed it.

 

The State has presented the testimony of Luis Silva and Jose Simoes. You will recall that these witnesses identified the defendant in court as the person who committed robbery. The State has also presented testimony that on a prior occasion, before this trial, these witnesses identified the defendant as the person who committed this offense. According to the witnesses, their identification of defendant was based on the observations and perceptions that they made of the perpetrator at the time the offense was being committed.

 

It is your function to determine whether the witness's identification of defendant is reliable and believable; or whether it is based on a mistake or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offense charged. In evaluating the identifications, you should consider the observations and perceptions on which the identifications were based, and the witness's ability to make those observations and perceptions.

 

If you determine that the out-of-court identification is not reliable, you may still consider the witness's in-court identification of defendant if you find it to be reliable. Unless the in-court identification resulted in the witness's observations or perceptions of the perpetrator or the commission of the offense, rather than being the product of impression gained at the out-of-court identification procedure, it should be afforded no weight. The ultimate issues of the trustworthiness, both the in-court and out-of-court identifications, are for you to decide.

 

To decide whether the identification testimony is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged, you should evaluate the testimony of the witness in light of the factors for considering credibility, which I have already explained to you. In addition, you may consider the following factors: Although nothing may appear more convincing than a witness's categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, although made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness's level of confidence standing alone may not be an indication of the reliability of the identification. In deciding what weight, if any, to give to the identification, you may consider the following factors:

 

The witness's opportunity to view the person who committed the offense at the time of the offense. The witness's degree of attention to the perpetrator at the time of the offense. The accuracy of any description the witness gave prior to identifying the perpetrator. The degree of certainty expressed by the witness in making any identification. The length of time between the witness's observation of the offense and the first identification. Discrepancies or inconsistencies between identifications, if any. The circumstances under which any out-of-court identification was made, including whether it was a product of a suggestive procedure. Any other factors based on the evidence, or lack of evidence, in the case which you consider relevant to your determination, whether the identifications were reliable.

 

The fact that an identifying witness is not of the same race as the perpetrator and/or defendant, and whether that fact might have had impact on the accuracy of the witness's original perception, and/or the accuracy of the subsequent identification, you should consider that in ordinary human experience, people may have greater difficulty in identifying members of a different race. Unless the in-court and out-of-court identifications is the result of the witness's observations or perceptions of the perpetrator during the commission of the offense, rather than being gained -- I'm sorry, rather than being the product of an impression gained in the in-court or out-of-court identification procedures, it should be afforded no weight. The ultimate issue of the trustworthiness of the identifications is for you to decide.

 

If, after consideration of all the evidence, you determine the State has not proven beyond a reasonable doubt that defendant was the person who committed these offenses, then you must find him not guilty.

 

These instructions followed the Model Charges and complied with the requirements of Robinson and Romero.

III.

 

 

Defendant presents two arguments regarding his sentence:

I. THE CONVICTION FOR POSSESSION OF

A WEAPON FOR AN UNLAWFUL PURPOSE

SHOULD HAVE BEEN MERGED WITH THE

CONVICTION FOR ROBBERY.

 

II. DEFENDANT'S SENTENCE IS MANIFESTLY

EXCESSIVE.

 

There is no need for us to reach these arguments because the reversal of defendant's conviction for the Silva robbery requires us to vacate defendant's sentence for the other offenses he was found to have committed and remand for resentencing. We reach this conclusion because the trial court's determination of the length of defendant's aggregate sentence may have been influenced by the fact that defendant was convicted of two robberies.

We do not know at this point whether the State will elect to retry defendant for the Silva robbery, and if it does, what the outcome of that trial may be. Consequently, the court should defer defendant's resentencing until there is a final disposition of the Silva robbery charge.

At that resentencing, the court also should consider whether defendant's conviction for possession of a firearm should merge with his conviction for the Simoes' robbery, and if he is again convicted of robbing Silva, with his convictions for both robberies.

Accordingly, defendant's conviction under Count I of the indictment for robbing Silva is reversed, and that charge is remanded to the trial court for a retrial. Defendant's other convictions are affirmed. Defendant's sentences for those offenses are vacated, and the case is remanded to the trial court for resentencing in conformity with this opinion.