STATE OF NEW JERSEY v. WALTER H. WEBB

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WALTER H. WEBB,

Defendant-Appellant.

___________________________________

March 12, 2015

Argued February 11, 2015 Decided

Before Judges Waugh and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-01-0210.

Alyssa Aiello, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Aiello, of counsel and on the brief).

Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief).

PER CURIAM

Defendant Walter H. Webb appeals his conviction for second-degree robbery, contrary to N.J.S.A. 2C:15-1(a)(1), as well as the resulting sentence of incarceration for ten years, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In October 2010, David Wilczek was working at an Outback Steakhouse in Secaucus. At approximately 3:45 p.m. on October 22, Wilczek was reporting for his 4:00 p.m. shift. He rang the bell at the back entrance of the restaurant so that another employee could let him in. The entrance is adjacent to the parking garage.

According to Wilczek, a man, later identified as Webb, approached him from behind and demanded his car keys in exchange for twenty-three dollars in cash, which Webb was holding in his hand. Webb then grabbed the car keys from Wilczek's hand and punched him in the face.

One of Wilczek's coworkers opened the back door of the restaurant, observed the altercation between Wilczek and Webb, and closed the door. Webb tried to grab the door handle, but fell to the ground. Wilczek retrieved the car keys, left the area, and telephoned the police.

Three officers from the Secaucus Police Department, including Officer Michael Viggiani, arrived at the scene five minutes after Wilczek's call. Wilczek described the man who punched him as being "taller" than he was, with "long dark hair" and "a goatee." He was wearing "a black shirt, black jeans . . . and black cowboy boots with silver on the front of [them]."

Within ten minutes after their arrival, the officers found Webb, who matched Wilczek's description, in the parking garage near the rear entrance of the restaurant. Webb was arrested and placed in the back of a police car. The officers confirmed with Wilczek that Webb was his assailant.

Webb was indicted on a single count of second-degree robbery in January 2011, and tried before a jury on June 12, 2013. Both Viggiani and Wilczek testified on behalf of the State. Webb did not present any witnesses.

After deliberating for approximately forty-five minutes, the jury alerted the judge that it had a question. The question was: "If defendant used force but it was not in the course of committing a theft can the defendant be found guilty?" The judge then reread the definition of robbery in the second degree. He confirmed with a juror that the definition was helpful and satisfactory in answering the question. Neither the prosecutor nor defense counsel objected to the judge's answer, nor did either of them request that any additional offense be charged. Shortly thereafter, the jury found Webb guilty of second-degree robbery.

Webb was sentenced on August 9. When addressing the judge, Webb maintained his innocence, implying instead that Wilczek had tried to rob him. The prosecutor then informed the judge that, while Webb was out on bail for the robbery charge, he had returned to

Tennessee where his ex-wife had an order [of] protection against him. [Webb] knocked on the door and when no one opened it for him decided he was going to shoot open that door. The ex-wife and her children were hiding in the bathroom as [Webb] was roaming through the house, shooting through the house and also killing the family dog.

Webb was tried on the resulting charges, convicted, and sentenced to incarceration for twenty years.

In determining the sentence for Webb's robbery conviction, the judge found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter Webb, and aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the likelihood that Webb would commit another offense. The judge determined that there were no mitigating factors. He imposed a ten-year sentence, subject to NERA, and made it concurrent with Webb's sentence in Tennessee. This appeal followed.

II.

Webb raises the following issues on appeal

POINT I: THE COURT ERRED IN FAILING TO CHARGE ASSAULT AS A LESSER OFFENSE OF ROBBERY BECAUSE ASSAULT WAS CLEARLY INDICATED IN THE EVIDENCE AND, AS THE JURY'S NOTE SUGGESTED, THERE WAS A STRONG EVIDENTIAL BASIS TO ACQUIT WEBB OF ROBBERY. THE TRIAL COURT ALSO ERRED IN FAILING TO PROVIDE AN ADEQUATE RESPONSE TO THE JURY'S NOTE. (Not Raised Below).

POINT II: THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON IDENTIFICATION. (Not Raised Below).

POINT III: A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE TRIAL COURT FAILED TO CONDUCT A MEANINGFUL ANALYSIS OF THE SENTENCING FACTORS OR OTHERWISE EXPLAIN ITS DECISION TO IMPOSE THE MAXIMUM SENTENCE FOR A SECOND-DEGREE OFFENSE.

A.

We begin our analysis with Webb's arguments concerning the jury charge. He contends that the trial judge erred by failing to give two unrequested jury charges: (1) assault, N.J.S.A. 2C:12-1(a)(1), as a lesser included offense of robbery and (2) the model identification charge.

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). "[A] mandatory duty exists on the part of the trial judge to instruct the jury as to the fundamental principles of law which control the case." State v. Butler, 27 N.J. 560, 595 (1958).

Because Webb did not request either charge at trial, we review his arguments under the plain error rule. See State v. Jenkins, 178 N.J. 347, 360 (2004). Plain error is error that is "clearly capable of producing an unjust result," which should "in the interests of justice" be noticed even if "not brought to the attention of the trial . . . court." R. 2:10-2; see also Jenkins, supra, 178 N.J. at 360-61. "[T]he possibility of injustice [must be] 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Normally, "a defendant waives the right to contest an instruction on appeal if he does not object to the instructions[, but] . . . an appellate court may reverse on the basis of unchallenged error if the court finds that the error was 'clearly capable of producing an unjust result.'" State v. Adams, 194 N.J. 186, 206-07 (2008) (quoting R. 2:10-2). Our Supreme Court has

explained that plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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."

[Id. at 207 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

"The charge to the jury must be read as a whole in determining whether there was any error." Ibid. Additionally, "[i]f the defendant does not object to the charge [or lack of charge] at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).

i.

We turn first to Webb's claim that the judge should have charged, sua sponte, assault as a lesser-included offense of robbery. He points to the jury's question during its deliberations and suggested that, if assault had been charged, the jury might have convicted him of assault rather than robbery.1

A trial judge "has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361. On the other hand, the judge has no duty to give a lesser-included offense instruction sua sponte when "the evidence [does] not clearly indicate or warrant such a charge." State v. Thomas, 187 N.J. 119, 132 (2006) (internal quotation marks omitted); see also N.J.S.A. 2C:1-8(e) ("The 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.").

The rationale for imposing such an independent obligation on the trial judge in this context is that "[n]o defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). The danger of prejudice to a defendant that may result from a trial judge's failure to charge a lesser-included offense to the jury is that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." State v. Sloane, 111 N.J. 293, 299 (1988) (quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 1998, 36 L. Ed. 2d 844, 850 (1973)). In Jenkins, supra, 178 N.J. at 361, the Supreme Court noted that, "because correct jury charges are especially critical in guiding deliberations in criminal matters, improper instructions on material issues are presumed to constitute reversible error."

In the context of a discussion of a trial judge's obligation to give a sua sponte charge on the defense of diminished capacity, the Supreme Court, in State v. Rivera, 205 N.J. 472, 488-90 (2011), saw parallels to a judge's similar duty to charge lesser-included offenses. The Court ultimately held

[A] trial court's duty to charge the jury on its own motion is one that is not self-executing, and that duty arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction. In determining whether an unrequested jury charge should be given, the notion that the facts must "'clearly indicate' the appropriateness" of the jury instruction is paramount: "'The trial court does not have the obligation on its own meticulously to sift through the entire record in every trial to see if some combination of facts and inferences might rationally sustain a[n unrequested] charge.'" [State v. Thomas, 187 N.J. 119, 134 (2006)] (quoting [State v. Choice, 98 N.J. 295, 299 (1985)]; editing marks omitted).

. . . [A] trial court's sua sponte obligation to instruct the jury in respect of any defense . . . is triggered only when the evidence clearly indicates or clearly warrants such a charge, and . . . the trial court is not called on to scour the record in detail to find such support.

[Id. at 489-90 (second alteration in original) (footnote and citation omitted).]

Given the facts adduced at trial, specifically the testimony that Webb punched Wilczek, there can be no doubt that Webb could have been indicted for assault, which is defined in N.J.S.A. 2C:12-1(a)(1) as "[a]ttempt[ing] to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another." That does not, however, make assault a lesser-included offense of robbery.

Webb was charged with second-degree robbery based on the allegation that, "in the course of committing a theft," he "[i]nflict[ed] bodily injury or use[d] force on" Wilczek. N.J.S.A. 2C:15-1(a)(1). However, the Supreme Court has rejected the "shorthand understanding that robbery equals theft plus assault." State v. Sewell, 127 N.J. 133, 147 (1992); State v. Mejia, 141 N.J. 475, 498 (1995), overruled on other grounds by State v. Cooper, 151 N.J. 326 (1997). In reaching that conclusion, the Court explained that although "second-degree robbery actually equals theft plus several elements that closely resemble simple assault, if the Legislature had intended to define the injury/force element of robbery as simple assault or its equivalent, it could have said so with equal ease." Sewell, supra, 127 N.J. at 147-48.

The Court outlined the elements of assault and robbery and found that assault is not a lesser included offense of robbery

With simple assault, injury is required to occur when force is actually applied against the victim. N.J.S.A. 2C:12-1(a)(1). Simple assault may also entail putting "another in fear of imminent serious bodily injury" when no force is used. N.J.S.A. 2C:12-1(a)(3) (emphasis added). However, a thief commits second-degree robbery but not simple assault if he or she only threatens another with bodily injury regardless of its seriousness, N.J.S.A. 2C:15-1(a)(2), or uses force that entails no injury.

[Id. at 147.]

Consequently, the Court found that assault is an offense related to robbery, rather than a lesser-included offense.

Where, as here, offenses are related, the statutory elements of the crimes need not be compared. "Instead, the focus is whether the offense charged and the related offense share a common factual nucleus." State v. Thomas, 187 N.J. 119, 130 (2006), rev'd on other grounds, 195 N.J. 431 (2008). The Court held in Thomas that, when the issue is whether the trial judge should charge "an offense that is related to, but not included within," the offense charged in the indictment because they "share a common factual ground, but not a commonality in statutory elements," the trial judge may only instruct the jury on the related charge if the defendant seeks or agrees to the charge and there is "a rational basis in the evidence to sustain the related offense." Id. at 132-33.

Consequently, the trial judge had no obligation to charge simple assault in this case. Because neither Webb nor the State requested or agreed to an assault charge, the judge's failure to give one was not error.

ii.

We now turn to Webb's contention that, despite the fact that no such charge was requested, the trial judge's failure to charge the jury on the issue of identification warrants reversal.

"[A]s a matter of general procedure a model identification charge should be given in every case in which identification is a legitimate issue." State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003). "When identification is a 'key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request." State v. Cotto, 182 N.J. 316, 325 (2005) (quoting State v. Green, 86 N.J. 281, 291 (1981)). When the "major . . . thrust of the defense" is based on identification of the defendant, only then is it a "key issue." Ibid. (internal quotation marks and citation omitted). Especially "in cases where the State relies on a single victim-eyewitness," the trial court may have a duty to instruct the jury on identification. Ibid.

Here, the victim, Wilczek, was the sole eyewitness. Nevertheless, Viggiani testified that, when Webb was located in the vicinity of the Outback, he fit Wilczek's description of his assailant. Webb never argued during the trial that Wilczek misidentified him. The defense did not contend that Webb was not at the scene of the robbery. Counsel never challenged the accuracy and reliability of Wilczek's identification of Webb. In fact, his attorney did not cross-examine Wilczek on that issue, nor did he refer to the issue of misidentification in his opening statement or during summation.

Webb now contends that misidentification was subsumed within his defense that Wilczek's version of events did "not make sense." The record does not support that claim, inasmuch as that argument was addressed to Wilczek's testimony that Webb offered him twenty-three dollars for his car, rather than the issue of Webb's identity.

Because we conclude that identification was not an issue in the trial, we find no error in the trial judge's failure to give an unrequested instruction on identification.

B.

Finally, Webb argues that, because the trial judge failed to engage in a meaningful analysis of the sentencing factors or explain his decision to impose the maximum sentence for a second-degree offense, the sentence was excessive.

"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65.

If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65. "In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). New Jersey's "sentencing statute contemplates a thoughtful weighing of the aggravating and mitigating factors, not a mere counting of one against the other." State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002).

Webb was convicted of second-degree robbery, an offense that carries a presumption of incarceration and a sentencing range between five to ten years of incarceration. N.J.S.A. 2C:43-6(a)(2). At the sentencing hearing, the State asserted the presence of both aggravating factor three, N.J.S.A. 2C:44-1(a)(3), (the "risk that defendant will commit another offense") and nine, N.J.S.A. 2C:44-1(a)(9) (the "need for deterring the defendant and others" from violating the law). Webb did not argue in favor of any mitigating factors.

In imposing his sentence, the judge found support in the record for both aggravating factors highlighted by the State, recognizing that Webb had "five prior arrests and [was] serving a significant sentence in Tennessee, so there is the likelihood to commit another offense." The judge also imposed the sentence to run "concurrent to the [twenty-year] sentence" Webb was then serving in Tennessee. Considering the record as a whole, Webb's sentence does not represent an abuse of the trial judge's sentencing power, and we decline to intervene. State v. O'Donnell, 117 N.J. 210, 215 (1989).

Affirmed.

1 We note that the jury's question can easily be understood to ask whether it could convict Webb on the basis of his use of force even if he did not succeed in stealing Wilczek's car. The rereading of the charge would have explained that "in the course of committing a theft" includes attempting to commit a theft.