STATE OF NEW JERSEY v. JOHN M. CLARKE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2768-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN M. CLARKE, a/k/a

SKOOB,

Defendant-Appellant.

-

June 5, 2013

 

Submitted April 9, 2013 Decided

 

Before Judges Hayden and Hoffman.

 

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-07-1185.

 

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

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant John M. Clarke was convicted of first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count four). At sentencing, the trial judge merged counts two through four with count one, and imposed a seven-year custodial term, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant now appeals and raises the following claims:

POINT I

 

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BY THE COURT'S ERRONEOUS INSTRUCTION ON ACCOMPLICE LIABILITY. (Not Raised Below).

 

POINT II

 

THE TRIAL WAS TAINTED BY THE PROSECUTOR'S COMMENTS IN SUMMATION RELATING TO FACTS NOT SUPPORTED BY THE EVIDENCE.

 

POINT III

 

THE COURT ERRED IN OMITTING A CRUCIAL SECTION OF THE JURY INSTRUCTION REGARDING TESTIMONY OF A COOPERATING CO-DEFENDANT. (Not Raised Below).

 

POINT IV

 

THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE CONSPIRACY CHARGE AT THE CLOSE OF THE STATE'S CASE.

 

We reject these contentions and affirm.

 

 

 

 

 

I.

The following facts are derived from the trial record. During the afternoon of October 16, 2008, defendant and three friends Joseph Autrey, Justin Caruso, Patrick Guinane went fishing by a small bridge in Little Egg Harbor Township. Autrey drove defendant and Guinane to the fishing spot in his black Honda Civic, while Caruso's girlfriend dropped him off at the fishing spot about thirty minutes later.

Shortly thereafter, three men, John Vo, Dung Huynh and Hien Do, arrived in Huynh's Toyota Highlander to fish at the same bridge. Thereafter, Do's fishing hook got stuck and he had to cut his fishing line. Needing a new lure, Do purchased one from Caruso for "[a]bout $5 or $6."

According to Caruso, after Do purchased the lure, defendant proposed to Caruso that they should rob the men because "he saw they had a lot of money on them." Caruso did not think defendant was serious, but indicated that he "would have his back" if defendant decided to go through with the robbery.

Caruso said his group continued to fish until it became darker outside and they ran out of beer. They then began packing up their fishing gear into Autrey's car. Caruso testified:

[W]hen I was in the car putting the cooler away, I just heard a loud pop noise . . . . [defendant] took a knife and popped the tire (on the victim's car). It was a loud noise, like a gunshot almost.

. . . .

 

Once I heard that, I looked up . . . and I saw [defendant] at the passenger's side of their vehicle. And in my mind, it clicked that, you know, obviously he was doing it. I really didn't think that he was going to rob them, you know, and I realized he was. And I ran over to the driver's side of the victim's vehicle, and I pulled out a knife from my sheath and held it to the driver.

 

During this time, Huynh was seated in the driver's seat of the vehicle, Vo was seated in the front passenger's seat, and Do was seated in the back seat. According to Vo, a man identified by Caruso as defendant opened the passenger's side door, put a knife to Vo's rib cage, and stated "give me your money and your wallet, too."

At the same time, Caruso demanded money from Huynh while holding him at knife point. Huynh did not have money on his person, but had placed approximately $600 in the center console; upon observing this money, defendant reached across Vo and took it.

Caruso then ran toward the passenger's side of the Civic, which was parked to the rear of Huynh's vehicle. At this point, Huynh placed his vehicle in reverse and "T-boned" into the Civic. The impact knocked Caruso to the ground and caused injury to his knee. He and Autrey then fled the scene in the Civic and defendant fled on foot.

Driving away, Autrey told Caruso that he wanted to call the police due to the accident. Caruso told him "that would be a really stupid idea, because we just committed a robbery." Nevertheless, Caruso provided Autrey with the phone number for the local police, then had Autrey pull over so he could exit the car. Once outside of the car, Caruso said he "went into someone's yard and waited for [his] girlfriend to" pick him up.

Vo, Do, and Huynh, with the assistance of a good Samaritan, also called the police. Officers of the Little Egg Harbor Township Police Department responded to both calls. Patrol Officer Kristen Story went to the scene of the robbery and interviewed the victims. Patrolman Thomas Tricka responded to Autrey's report of the car accident and observed two knives inside Autrey's car, as well as "some blood on the passenger's side front of the car." The police quickly connected the accident with the armed robbery. Autrey was placed under arrest, as was Caruso, who was found hiding in a nearby shed.

Defendant was located four days later and arrested in Long Beach Township. Detective Sergeant Michael Hart explained the charges to defendant and read him his Miranda rights,1 which he waived. At the time, defendant was wearing a knee brace and using crutches, but denied sustaining any injury during the robbery. In a videotaped statement, defendant claimed that it was Caruso's idea to rob the victims. He claimed he was "standing on the other side" of Huynh's car when the robbery took place. Defendant stated that he fled the scene because he had an outstanding arrest warrant for driving while suspended.

Autrey and Caruso, who were also charged with the robbery, pled guilty and agreed to testify against defendant in exchange for the State's recommendation of lighter sentences. Defendant did not testify or present any witnesses at trial.

II.

A. Jury Instructions.

 

Defendant argues that the trial judge's insufficient jury instructions on accomplice liability and testimony of cooperating co-defendants deprived him of his right to a fair trial. We disagree.

Because defendant failed to object at trial, we review the alleged insufficient instructions under the plain error standard. State v. Walker, 203 N.J. 73, 89-90 (2010). As such, to warrant reversal, the jury instructions must have been "'clearly capable of producing an unjust result.'" Id. at 89 (quoting R. 2:10-2). A jury charge will not be considered plain error unless "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); R. 2:10-2.

1. Accomplice Liability Instruction.

We first address defendant's argument pertaining to the accomplice liability instruction. He contends the accomplice liability instruction was insufficient because (1) the trial judge improperly failed to instruct the jury that defendant could be convicted of a lower degree crime than Caruso; (2) the trial judge improperly instructed the jury that if they found defendant guilty as the principal, they did not have to consider whether he was guilty as an accomplice; and (3) the trial judge confused the jury with the accomplice liability instruction by putting the robbery charge in the context of Caruso committing the offense.

"[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)). However, "N.J.S.A. 2C:1-8(e) provides that a court 'shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.'" State v. Brent, 137 N.J. 107, 113 (1994). Under this section of the Code, there must be "not only a rational basis in the evidence for a jury to convict the defendant of the included offense but . . . also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense." Id. at 113-14 (emphasis removed).

Pursuant to N.J.S.A. 2C:15-1:

a. . . . 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.

 

In this case, we see no plain error in the trial judge's failure to instruct the jury that it could convict defendant of a lesser-included offense of robbery. Defense counsel readily admitted on the record that there was no support for a charge of the lesser-included offense of theft, stating, "[y]our Honor, we're not aware of any additional facts that would support the theft charge." Even without this concession by defense counsel, the evidence did not support anything less than a robbery charge. According to the victims' testimony, there were two men that threatened them with knives. Caruso testified that both he and defendant threatened the victims with knives. The only rational finding that could be made from this evidence is that defendant, either as the principal or the accomplice, had the intent to threaten the victims with bodily injury. See N.J.S.A. 2C:15-1. Accordingly, there was no rational basis for acquitting defendant of robbery and only finding him guilty of theft or any other lesser-included offense of robbery.

Defendant's other two arguments pertaining to the accomplice liability instruction likewise lack merit. It was not improper for the judge to inform the jury that if they found defendant guilty as the principal, they did not need to consider whether he was guilty as the accomplice. The judge was merely reiterating that the State presented two alternate theories of culpability defendant was either the main perpetrator of the robbery or he was Caruso's accomplice. See State v. Roach, 146 N.J. 208, 223 ("When a defendant may be found guilty either as a principal actor or as an accomplice, the jury should be instructed about both possibilities."), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Finally, it was neither improper, nor confusing to the jury, for the trial judge to explain the robbery charge in the context of Caruso committing the offense. It is axiomatic that to find defendant guilty as an accomplice to the robbery, the jury needed to determine that Caruso committed the offense.

2. Cooperating Co-Defendant Instruction.

Next, we turn to defendant's argument that the trial judge improperly omitted a crucial aspect of the cooperating co-defendant instruction.

[A] defendant has a right, upon request, to a specific jury instruction that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his specific interest in the proceeding. . . . The trial court should caution the jury regarding the credibility of a witness who may have a special interest in the outcome of the cause, which might lead to influencing their testimony, because of some involvement in the criminal situation out of which the indictment and trial of the defendant arose.

 

[State v. Adams, 194 N.J. 186, 207-08 (2008) (internal quotation marks and citations omitted).]

 

The trial judge gave the following jury instruction regarding testimony of a cooperating co-defendant:

Justin Caruso and Joseph Autrey who were indicted for the crimes the defendant is on trial for have testified on behalf of the state. These individuals have each pleaded guilty to robbery in the first degree. Joseph Autrey pleaded guilty to a lesser charge of theft in the third degree. Each of these individuals has testified on behalf of the state.

 

Evidence of these witnesses' pleas of guilty may be used only in determining the credibility or believability of the witness's testimony. A jury has a right to consider whether a person who has admitted that he failed to comply with society's rules would be more likely to ignore the oath requiring truthfulness on a witness stand than a person who has never been convicted or pleaded guilty to a crime. You may consider such evidence, along with all the other factors that I mentioned previously, in determining the credibility of a witness. However, you may not use these witness's pleas of guilty as evidence that this defendant is guilty of the crimes charged.

 

The instruction did not state that the testimony of Autrey and Caruso deserved heightened scrutiny. The judge did, however, inform the jury that both Autrey and Caruso pled guilty in exchange for a lighter sentence, and the jury could consider their pleas when weighing their credibility. Moreover, during her general instruction on credibility of witnesses, the trial judge articulated that the jury could take into consideration "the witness's interest in the outcome of the trial, if any."

Defense counsel also took advantage of the opportunity to cross-examine both co-defendants on their plea agreements with the State:

[DEFENSE COUNSEL:] And you were charged with first-degree robbery in this matter. Is that Correct?

 

[AUTREY:] Yes.

 

[DEFENSE COUNSEL:] And you heard the prosecutor say that they were going to recommend 364 days in [county jail]. Is that right?

 

[AUTREY:] Yes.

 

. . . .

 

[DEFENSE COUNSEL:] And you pled guilty to first-degree robbery last December --

 

[CARUSO:] Yes.

 

[DEFENSE COUNSEL:] -- with the understanding that you would be sentenced at least one degree lower than that. Isn't that right?

 

[CARUSO:] Yes.

 

[DEFENSE COUNSEL:] And as part of that agreement, you agreed to testify against [defendant]. Is that correct?

 

[CARUSO:] Yes.

 

Defendant's trial counsel further attacked the credibility of Autrey's and Caruso's testimony during his closing argument:

Now, both of these individuals who came in to testify were convicted felons at the time of this incident. Autrey had a prior conviction for burglary. Caruso had a prior conviction for drug charges. They both agreed to testify against my client in this matter in return for very favorable treatment from the state.

 

Based on the trial record as a whole, if the trial judge's failure to directly caution the jury to carefully scrutinize Autrey's and Caruso's testimonies was error, it was harmless. Specifically, the trial judge's general instructions on credibility, the cross-examination of Autrey and Caruso, and defense counsel's closing argument attacking their credibility ameliorated any impact of the judge's failure to give such an instruction. Therefore, the alleged "'error did not have the clear capacity to produce an unjust result and . . . had a minimal effect on the outcome of the trial.'" Adams, supra, 194 N.J. at 209 (quoting State v. Stefanelli, 78 N.J. 418 (1979)).

B. Prosecutor's Comments During Summation.

Defendant argues that the prosecutor's comments during summation regarding defendant's injury had no basis in the record and warrants reversal. Again, we disagree.

To warrant reversal, prosecutorial misconduct during summation must be "so egregious that it deprived defendant of a fair trial." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.) (citing State v. Feaster, 156 N.J. 1, 84 (1998)), certif. denied, 165 N.J. 492 (2000). A reviewing court should not hesitate to reverse a conviction where "the prosecutor in his [or her] summation over-stepped the bounds of propriety and created a real danger of prejudice to the accused." State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson, 31 N.J. 489, 511 (1960)). However, a prosecutor's comments during summation should not be reviewed in a vacuum, rather, they must be considered "in the context of the trial as a whole[.]" Swint, supra, 328 N.J. Super. at 261.

A prosecutor is entitled to significant latitude in the content of his or her closing arguments. State v. Frost, 158 N.J. 76, 82 (1999). The prosecutor may "be forceful and graphic" in the arguments presented to the jury. State v. DiPaglia, 64 N.J. 288, 305 (1974). Likewise, the prosecutor "may suggest legitimate inferences to be drawn from the record, but [she] commits misconduct when [she] goes beyond the facts before the jury." State v. Harris, 156 N.J. 122, 194 (1998).

Here, defendant had a knee brace and was on crutches when he was arrested four days after the robbery. During summation, the prosecutor argued that defendant's knee injury showed that he was at the scene of the crime. Specifically, the prosecutor argued:

[Defendant's knee injury] is consistent that he committed this crime, because . . . Caruso who is on the other side of that car during the robbery, he also got hurt. Why? Because of the accident. It shows that the defendant was involved. In his statement, the defendant also talks about rolling down the hill, going down the hill and hiding. Ladies and gentlemen, that would be consistent with his injury.

 

Upon objection by defense counsel, the trial judge issued the following limiting instruction to the jury:

[A]s I will instruct you shortly, the summations are the attorneys' arguments and recollection of the facts to you, but it is your recollection of the facts -- not mine, but yours; not the attorneys, but yours -- that governs in this case. So in evaluating what the attorneys have said to you, you have to consider: Did I see that? Did I hear that? Was that testified to? Was that put into evidence?

 

If there is an issue as to whether or not the defendant's knee brace and crutches were the result of that car crash -- it's for you to decide whether there was any testimony connecting the defendant's injuries to that car accident after the alleged robbery. All right? Also, it's up to you to consider whether you heard evidence that Caruso's injuries were the result of that car accident, the one car banging into the other. The facts are to be determined by you, and you are to consider the summations as persuasive or helpful to the extent that you want.

 

We discern no prejudicial error based on the prosecutor's argument during summation that defendant's injury was consistent with him being hit by the car or rolling down a hill. This argument was not an unreasonable stretch, but rather a "legitimate inference[] . . . drawn from the record[.]" Harris, supra, 156 N.J. at 194.

We also note that when viewing the prosecutor's argument in the lens of the trial as a whole, the effect of the argument can only be viewed as minimal. See Swint, supra, 328 N.J. Super. at 261. The key evidence against defendant was the testimony by Autrey and Caruso implicating defendant as the main perpetrator and mastermind behind the robbery. It is dubious at best to believe that the prosecutor's argument pertaining to defendant's injury pushed the jury over the edge in returning the guilty verdict.

Finally, even if the prosecutor's comments during summation were prejudicial to defendant, the trial judge issued an exhaustive limiting instruction upon defendant's objection, thereby alleviating any prejudice defendant may have suffered. See State v. Jackson, 211 N.J. 394, 413 (2012) (finding "a timely and effective limiting instruction" adequately addressed an alleged improper statement made by the prosecutor during summation). Thus, the prosecutor's summation did not deprive defendant of his right to a fair trial.

C. Conspiracy To Commit Robbery Charge.

Defendant argues the trial court erred by failing to grant his motion for judgment of acquittal on the conspiracy to commit robbery charge. Again, we disagree.

On review of a motion for a judgment of acquittal, we apply the same standard as the trial court, which is

whether the evidence viewed in its entirety and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

 

[State v. Moffa, 42 N.J. 258, 263 (1964).]

Here, there is ample evidence in the record to support the charge that defendant conspired with Caruso to rob the victims. Pursuant to N.J.S.A. 2C:5-2a:

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

 

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

 

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

 

The testimony at trial adequately established the elements of conspiracy. Autrey testified that he heard defendant and Caruso "discussing that they were [going to] rob the victims." Caruso testified that when defendant told him they should rob the victims, he responded by stating, "if any of the other . . . guys got involved, [that] I would have his back and, you know, I would help him." Moreover, Caruso testified that he did indeed assist defendant in robbing the victims. Based on this testimony, there was sufficient evidence from which the jury could find defendant guilty of the conspiracy charge. As such, the trial judge properly denied defendant's motion.

Affirmed.

 

 

 

 

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