STATE OF NEW JERSEY v. THOMAS L. COAR
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4378-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS L. COAR,
a/k/a THOMAS COAR,
Defendant-Appellant.
________________________________
Submitted December 19, 2017 – Decided January 22, 2018
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
14-03-0746 and 14-03-0747.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alyssa Aiello, Assistant Deputy
Public Defender, of counsel and on the
briefs).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (LeeAnn
Cunningham, Special Deputy Attorney General/
Acting Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Thomas L. Coar appeals from two April 22, 2016
judgments of conviction, one following a jury trial under
indictment 14-03-0746, and the second following a guilty plea
under indictment 14-03-0747. The jury convicted defendant on two
counts of first-degree robbery,
N.J.S.A. 2C:15-1; one count of
third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b),
and two counts of third-degree possession of a weapon for unlawful
purpose,
N.J.S.A. 2C:39-4(a). Subsequent to his conviction,
defendant pled guilty to second-degree possession of a weapon by
a convicted felon,
N.J.S.A. 2C:39-7(a). Defendant argues the
trial court's response to a question from the jury during
deliberations was inadequate and misleading, causing the jury to
convict him on an erroneous theory of liability. We disagree and
affirm.
The following facts are taken from the record. On October
6, 2013, Jose Tandazo and Rommel Bravo were standing outside of
Tandazo's residence in Newark after their work shift ended at a
local restaurant. As Tandazo and Bravo were parting ways, they
were approached by two individuals, one of whom produced a gun,
pointed it at Tandazo's head, and demanded money. Bravo noticed
a Newark police vehicle approaching and flagged it down causing
the two suspects to flee. Officer Miguel Ressurreicao exited his
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police vehicle and gave chase. Officer Ressurreicao saw that one
of the two suspects was wearing camouflage and holding a gun.
During the foot chase the two suspects separated and Officer
Ressurreicao testified he followed the one wearing camouflage to
the parking lot of a nearby Walgreens. There, he discovered
defendant who was wearing camouflage and "fumbling with the
garbage" and arrested him. Officer John Stutz and a third officer
were dispatched to the scene. Officer Stutz testified he recovered
a BB gun in an alleyway adjacent to the Walgreens parking lot.
Subsequent testing of the gun did not yield any fingerprints of
value.
At trial, Tandazo testified to the incident and stated the
man with the gun was clean shaven. Defendant's booking photo,
introduced into evidence, showed him with a full beard. Bravo
also testified and recounted the incident in a similar fashion to
Tandazo. Neither Bravo nor Tandazo identified defendant as one
of the two men who tried to rob them. Officer Ressurreicao was
the only witness to link defendant to the robbery.
During the first day of deliberations, the jury inquired
whether defendant's arrest photo was admitted as evidence. The
photo had been admitted into evidence during the trial, but
mistakenly omitted from the jury's evidence packet. The photo was
provided to the jury. The jury asked whether Officer
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Ressurreicao's incident report was admitted as evidence. The
trial judge informed the jury the report was not in evidence. The
jury then sent the following note: "We need clarity. We need to
know who Bravo and Tandazo claimed had the gun. Whatever you can
provide please." The trial judge then played back the entirety
of Bravo and Tandazo's testimony and the jury was excused for the
day.
The jury returned for the second day of deliberations and
sent the following note: "According to the law two suspects are
charged with robbery with a deadly weapon. But only one has the
weapon, are they both accused of possession?" In response, the
trial judge re-read the jury charge on possession originally given
to the jury and added an instruction on joint possession. The
judge stated:
Rather than answer you in a very general way,
you're reminded that here there's only one
person who has been charged, and one person
who is on trial. One person against [whom]
the . . . charges in the indictment have been
returned, and that is the defendant Thomas
Coar.
During the testimony you have references and
your recollection of the testimony controls
as to the matter in which the alleged offense
was . . . committed, and the number of parties
who participated.
In response to your question, however, I will
recharge you on the law of possession. I will
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also charge you on the law of joint
possession.
"Actual possession, a person is in actual
possession of an item when he first knows what
it is, that is, he has knowledge of its
character; and second, knowingly has it on his
person at a given time."
"Constructive possession, possession may be
constructive instead of actual. As I just
stated a person who with knowledge of its
character, knowingly has direct, physical
control over an item at a given time, is in
actual possession of it. Constructive
possession means possession in which the
possessor does not physically have the item
on his person, but is aware that the item is
present and is able to and has the intention
to exercise control over it. So someone who
has knowledge of the character of an item and
knowingly has both the power and the intention
at a given time to exercise control over it
either directly or through another person or
persons is then in constructive possession of
that item."
"There is a concept of joint possession
[which] may be sole or joint. If one person
alone has actual or constructive possession
of an item, possession is sole. [I]f two or
mor[e] (sic) persons share actual or
constructive . . . knowing possession of an
item, possession is joint."
[(quoting Model Jury Charge (Criminal),
Possession
N.J.S.A. 2C:2-1 (2014)).]
The jury's final question was: "What happens if we don't all
agree on a verdict?" The trial judge read the model jury charge
on further deliberations. The jury continued its deliberations
and a few hours later returned a guilty verdict on all counts.
5 A-4378-15T1
Defendant pled guilty to the certain persons offense in the second
indictment, admitting he was in possession of a BB gun on the day
of the incident and that he had previously been convicted of
robbery in Hudson County.
The trial judge denied defendant's motions for acquittal and
to set aside his plea. The judge also denied the State's motion
for an extended sentence. Defendant was sentenced to twelve years
in prison subject to the No Early Release Act (NERA),
N.J.S.A.
2C:43-7.2. Defendant's sentence ran concurrently with a ten-year
sentence pursuant to his plea, which required he serve a mandatory
minimum of five years.
On appeal, defendant argues the following point:
THE TRIAL COURT'S INADEQUATE AND GROSSLY
MISLEADING RESPONSE TO THE JURY'S QUESTION
PERMITTED THE JURY TO CONVICT DEFENDANT ON A
THEORY OF LIABILITY THAT WAS NOT IN THE CASE.
(Not Raised Below).
We begin with our standard of review. When a defendant fails
to object to a jury charge at trial, we review for plain error,
and "disregard any alleged error 'unless it is of such a nature
as to have been clearly capable of producing an unjust result.'"
State v. Funderburg,
225 N.J. 66, 79 (2016) (quoting R. 2:10-2).
Plain error, in the context of a jury charge, is "[l]egal
impropriety in the charge prejudicially affecting the substantial
rights of the defendant and sufficiently grievous to justify notice
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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. Camacho,
218 N.J. 533, 554 (2014) (alteration
in original) (quoting State v. Adams,
194 N.J. 186, 207 (2008)).
In reviewing any claim of error relating to a jury charge,
"[t]he charge must be read as a whole in determining whether there
was any error[,]" State v. Torres,
183 N.J. 554, 564 (2005), and
the effect of any error must be considered "in light 'of the
overall strength of the State's case.'" State v. Walker,
203 N.J.
73, 90 (2010) (quoting State v. Chapland,
187 N.J. 275, 289
(2006)). However, counsel's failure to object to jury instructions
not only "gives rise to a presumption that he did not view [the
charge] as prejudicial to his client's case[,]" State v. McGraw,
129 N.J. 68, 80 (1992), but is also "considered a waiver to object
to the instruction on appeal." State v. Maloney,
216 N.J. 91, 104
(2013).
At the outset, we note the record is devoid of any objection
from defense counsel to the trial judge's second reading of the
possession charge. The record reflects the trial judge informed
the prosecutor and defense counsel of how the judge proposed to
answer the jury's question by reinstructing the jury on possession
and instructing on joint possession, gave counsel a copy of the
joint possession instruction, and asked the counsel's position.
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Defendant's counsel said "No objection from the defense, Your
Honor."
Under the invited error doctrine, "trial errors that '"were
induced, encouraged or acquiesced in or consented to by defense
counsel ordinarily are not a basis for reversal on appeal."'"
State v. A.R.,
213 N.J. 542, 561 (2013) (citations omitted). A
defendant cannot agree to a particular instruction, "and upon
adoption by the court, take his chance on the outcome of the trial,
and if unfavorable, then condemn the very procedure he sought and
urged, claiming it to be error and prejudicial." State v. Ramseur,
106 N.J. 123, 281-82 (1987) (citation omitted). Defense counsel
clearly acquiesced in the instruction given to the jury.
Accordingly, defendant "is barred from raising an objection for
the first time on appeal." A.R.,
213 N.J. at 561.
The invited error doctrine's bar does not "automatically
apply" if it would "cause a fundamental miscarriage of justice."
N.J. Div. of Youth & Family Servs. v. M.C. III,
201 N.J. 328, 342
(2010) (citation omitted). However, "this case presents no
fundamental injustice that would warrant relaxing the invited
error doctrine." Ibid.
Defendant contends the State based its theory that he was the
principal and gunman during the robbery on Officer Ressurreicao's
testimony that one of the two suspects was wearing camouflage and
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holding a gun. Defendant contends Officer Ressurreicao's
testimony was questionable because he testified that when calling
for backup he did not tell the dispatcher that the man in
camouflage had a gun. Defendant argues Officer Ressurreicao never
told Officer Stutz that he had seen defendant holding a gun. Also,
when Officer Ressurreicao apprehended defendant, he told the
dispatcher defendant was the lookout.
Defendant also argues other evidence indicated he was the
lookout. Specifically, defendant notes there was no dispute that
he was bearded and wearing a camouflage jacket with a hood. Yet
Tandazo described the man with the gun as clean shaven and wearing
a pullover.
Thus, defendant asserts the jury could have found he was the
lookout, and the trial judge should have given the jury the
accomplice liability charge. Defendant argues the failure to do
so foreclosed a chance at acquittal as the principal.
Additionally, defendant argues the trial court erred by
instructing the jury it could consider constructive and joint
possession because the instruction implied the jury could find
defendant guilty even if he did not possess the gun.
We find these arguments unpersuasive. Only "[w]hen a
prosecution is based on the theory that a defendant acted as an
accomplice [is] the trial court required to provide the jury with
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. . . instructions regarding accomplice liability." State v.
Savage,
172 N.J. 374, 388 (2002). "When the State's theory of the
case only accuses the defendant of being a principal, and a
defendant argues that he was not involved in the crime at all,
then the judge is not obligated to instruct on accomplice
liability." Maloney, 216 N.J. at106.
It is undisputed the State's theory of the case was that
defendant possessed the gun. Therefore, accomplice liability was
not in question because it was not a part of the State's case.
Moreover, defendant denied any involvement with the crime, and
claimed he happened to be in the Walgreens parking lot when Officer
Ressurreicao arrested him. For these reasons, we reject
defendant's argument the jury should have been given an accomplice
liability charge.
Aside from the theory of the State's case, we also reject
defendant's arguments that there was sufficient evidence to
support the jury finding he was the lookout. The evidence
overwhelmingly supported defendant's conviction as the principal
in possession of the gun. Officer Ressurreicao's testimony
regarding his observation of the robbery, pursuit, and arrest of
the defendant, and Officer Stutz's subsequent discovery of the gun
nearby, were sufficient evidence for the jury to find defendant
guilty as the principal and gunman.
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The jury's question regarding possession of the gun did not
signal a misunderstanding of defendant's role in the crime, but
instead that clarification was sought regarding the legal basis
for defendant's liability. The trial court's response to the
jury's question regarding possession of the weapon with an
instruction on constructive and joint possession was legally
accurate and not plain error, let alone a fundamental injustice.
As the trial judge noted when she denied defendant's motion
for acquittal:
The State’s proofs at trial were the two
individuals attempted to rob the victim[s]
with one person placing a gun to the head of
one of the victims and demanding money. The
jurors were initially charged on actual and
constructive possession. The testimony at
trial supported a finding that when this
defendant was arrested he did not have a
weapon on his person, but that the weapon was
recovered [near] the trash receptacle in
[which] the police saw the defendant
rummaging.
The jurors asked how two people could be found
guilty of possession of one weapon? The jury
instruction on joint possession is a response
to that inquiry. As the charge is
straightforward and [a]s noted by the State,
the jurors heard the testimony of the
witnesses with a complete playback of the
testimony of the victims.
Considering the totality of the circumstances
this Court does not find that the instruction
was misleading or confusing. Defendant’s
defense was denial with any involvement with
this crime. With regard to the weapon
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defendant argues that his fingerprints [were]
not recovered from the weapon . . . and that
there is no forensic proof that he . . .
actually possessed . . . the weapon. In his
summation the defendant’s only concession is
that he was arrested in the parking lot of
Walgreen[s].
The response to . . . the juror question, again
including the charge of joint possession in
no way prejudiced the defense, because the
defense, again, [was] consistent [that] he
maintains that he was [not] actively,
constructively, solely, jointly, possessed of
a weapon, and/or that he had in any[ ]way
participated in a robbery. His defense is
restricted to the fact that he happened to be
arrested in a parking lot at Walgreens.
The Court find[s] that the defendant fails to
establish that the verdict is a manifest
denial of justice.
We agree with the trial judge's assessment. The totality of
the circumstances demonstrate the jury's question had been
answered. Indeed, "[t]he failure of the jury to ask for further
clarification or indicate confusion demonstrates that the
[court's] response was satisfactory." State v. McClain,
248 N.J.
Super. 409, 421 (App. Div. 1991). There is no indication the jury
convicted defendant as an accomplice not in possession of the gun.
Affirmed.
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