On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Brody, Ashbey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
The primary issue presented on this appeal is whether a defendant only tried for the armed robbery of a named victim can be convicted of a general conspiracy to commit armed robbery and possession of a weapon for a general unlawful purpose under the lesser-included offense doctrine.
Defendant was indicted for the armed robbery of Anita Jo Parrot, in violation of N.J.S.A. 2C:15-1, and for the theft of Parrot's property, in violation of N.J.S.A. 2C:20-3a. On the State's motion, the theft charge was severed and defendant was tried solely for armed robbery.
The State's evidence showed that on the night of the alleged crime, April 7, 1984, defendant was in the company of two friends, a juvenile, John Jones,*fn1 and James Boyd. Jones had a sawed off shotgun in his possession. Defendant suggested that they commit a robbery and the others agreed. The three young men then began walking the streets of Trenton. At one point, defendant suggested that they rob a liquor store but they passed by the store without attempting to commit the crime. Later the trio arrived at a bar called the Two by Four where they spotted the victim walking to her car.
The State's witnesses presented differing versions of what occurred next. Defendant's confederate, Jones, testified that defendant initiated a conversation with Parrot about marijuana while she was sitting in her car. According to Jones, he walked up behind defendant, pointed the shotgun at Parrot and robbed her while she was talking to defendant. Jones responded as
follows to the prosecutor's questions regarding defendant's role in the robbery:
Q. Before the defendant went up to the car did he say anything to you about what he was going to do at the car?
A. No, there was no point saying I knew what I was going to do.
Q. The defendant knew what you were going to do?
A. I can't speak for what he do [ sic ]. I know what I was going to do. I said, I got one now.
Jones also testified that the victim had given defendant some marijuana before Jones grabbed her wallet and ran. Parrot acknowledged that one of her attackers inquired about purchasing drugs, but she denied having any drugs in her possession. She said that the only thing taken from her during the robbery was her wallet. She also stated that the person who initiated the conversation about drugs was the same one who took her wallet. Parrot could not identify her assailants.
After the robbery, the three young men fled from the area. According to Jones, he discarded the victim's wallet after discovering that it was empty. Later that evening, he shared the marijuana allegedly taken from Parrot with Boyd and defendant. Finally, Jones testified that he gave the sawed off shotgun to defendant in exchange for a pair of sunglasses after the armed robbery.
Upon completion of the trial, the trial court submitted to the jury the charge of armed robbery as set forth in the indictment and the lesser-included offenses of second degree robbery, conspiracy to commit armed robbery and conspiracy to commit second degree robbery. Over defendant's objection, the trial court also submitted to the jury possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a, and possession of a prohibited weapon, a sawed off shotgun, in violation of N.J.S.A. 2C:39-3b, as additional lesser-included offenses of armed robbery. The jury was unable to reach agreement with respect to defendant's guilt ...