On appeal from Superior Court of New Jersey, Law Division, Passaic County.
Pressler, Brody and Havey. The opinion of the court was delivered by Brody, J.A.D.
[198 NJSuper Page 578] Appellant and a co-defendant, Francisco Ruiz, were indicted for the murder and first degree robbery of Raymond Torres. The murder count charged the defendants with knowingly causing Torres's death "and/or" causing his death in the course of a robbery. The robbery count charged that the defendants were armed with a knife. Ruiz was never apprehended. A jury found appellant guilty of felony murder and first degree robbery. Pursuant to the trial judge's instructions, the jury, having found appellant guilty of felony murder, did not consider whether he was also guilty of purposely or knowingly killing Torres.*fn1 The judge imposed consecutive prison
sentences: 50 years for the murder with 25 years of parole ineligibility and 20 years for the robbery.
We agree with appellant that it was plain error for the judge to have sentenced him for armed robbery. That offense necessarily merged with felony murder. See State v. Rodriguez, 97 N.J. 263 (1984); State v. Hubbard, 123 N.J. Super. 345, 352 (App.Div.1973), certif. den., 63 N.J. 325 (1973). By keeping the jury from finding appellant guilty of purposeful or knowing murder, the judge lost the opportunity of imposing a separate sentence for robbery.
The operative facts as presented by the State differed fundamentally from those presented by appellant. According to the State, Torres left a neighborhood tavern when it closed at 3:00 a.m. He was inebriated but able to make his way home on foot. Along the way he was set upon by the defendants who assaulted and robbed him. They left Torres when Nicholas Santana Castro (Santana) came by. Torres, who was on the ground disabled by the beating, told Santana he had just been robbed. Santana crossed the street to a public telephone and called the police. Meanwhile, the defendants returned to Torres and stabbed him to death so that he could not identify them.
Appellant testified that he had been visiting Ruiz, Ruiz's brother, and three other Mexican men who lived in an apartment overlooking the place where Torres was killed. Shortly after leaving the apartment to walk together to appellant's home, appellant and Ruiz were accosted by Torres. Torres shouted ethnic slurs and obscenities at them and kicked appellant. Appellant responded by knocking Torres to the ground. Torres got up but before the fight could resume, Ruiz pushed appellant aside and stabbed Torres to death. Appellant claimed he was unaware that Ruiz had been carrying a knife. This
version of events was corroborated by the four Mexican men who testified that they were looking out of their apartment window at the time. Their testimony was seriously undercut, however, by prior inconsistent statements each had given the police.
If the jury accepted all the State's evidence, they could have found appellant guilty of first degree armed robbery and purposeful murder committed after the robbery to silence the victim. On the other hand, if the jury accepted all of appellant's evidence, they could have found him guilty of at most a simple assault. As the trial judge viewed it, if the jury found that appellant committed the robbery and participated in the homicide he would be guilty of robbery and felony murder and his guilt of purposeful or knowing murder would be superfluous; if the jury found that he did not commit robbery but did participate in the homicide, he would be guilty only of purposeful or knowing murder. He therefore instructed the jury to consider purposeful or knowing murder only if they found appellant not guilty of robbery.
Like many other crimes, murder is defined in the Code by alternative sets of elements. A homicide is a murder when caused purposely, when caused knowingly, or "when the actor . . . is engaged in the commission of . . . or flight after committing . . . [any of several crimes including robbery], and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants. . . ." N.J.S.A. 2C:11-3(a)(1), (2), and (3). The last set of elements is commonly called "felony murder." The manner in which a particular crime is committed may include two or more sets of elements that define the crime. Thus an intentional homicide committed in the course of or immediate flight from the commission of a "felony" would constitute both a purposeful murder and a felony murder.
When evidence of more than one set of elements could support a guilty verdict for the same ...