On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Before Judges Long, Muir, Jr. and Loftus. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by LONG, P.J.A.D.
Tried to a jury, defendant, Walter Singleton was convicted of third-degree burglary, contrary to N.J.S.A. 2C:18-2(a)(1). He was sentenced to an extended term of ten years with a five year period of parole ineligibility. The trial Judge also imposed appropriate Violent Crimes Compensation Board and Safe Neighborhood Services Fund assessments.
Defendant appeals, contending that the following trial errors warrant reversal:
THE ADMISSION OF TESTIMONY THAT DEFENDANT COMMITTED AN UNCHARGED CRIMINAL TRESPASS THE DAY BEFORE THIS INCIDENTAT THE SAME APARTMENT BUILDING, WITHOUT ANY THEORY OF ADMISSIBILITY OR LIMITING INSTRUCTION, VIOLATED HIS RIGHTS UNDER N.J.R.E. 404b AND HIS RIGHT TO DUE PROCESS OF LAW (U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, P L) (Not Raised Below).
BECAUSE THE EVIDENCE THAT DEFENDANT WAS NOT A THIEF BUT A SQUATTER "CLEARLY INDICATED" A RATIONAL BASIS FOR THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS, THE JUDGE'S FAILURE TO SUBMIT THAT OFFENSE DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW.
THE JUDGE'S DISMISSAL OF A JUROR WHO WAS NOT A NATIVE SPEAKER OF ENGLISH BUT WHO WAS ABLE TO EXPLAIN THAT HIS DISAGREEMENT WITH THE OTHER ELEVEN JURORS STEMMED FROM HIS REASONABLE DOUBTS ABOUT AN ELEMENT OF THE OFFENSE, AND THE JUDGE'S SUBSTITUTION OF ANOTHER JUROR INSTEAD OF A DECLARATION OF MISTRIAL, VIOLATED DEFENDANT'S RIGHT TO BE TRIED BY A FAIR AND IMPARTIAL JURY (U.S. CONST. AMEND. VI, XIV; N.J. CONST. 1947, art. I, P 9.
THE JUDGE'S IMPOSITION OF A DISCRETIONARY EXTENDED TERM AUTOMATICALLY UPON FINDING THE STATUTORY PREDICATE, AND HIS IMPOSITION OF THE MAXIMUM BASE TERM AND MANDATORY MINIMUM AVAILABLE, VIOLATED THE CODE OF CRIMINAL JUSTICE AS CONSTRUED BY THE SUPREME COURT AND SHOULD SHOCK THE JUDICIAL CONSCIENCE.
We have carefully reviewed this record in light of these contentions and have concluded that the errors raised in Points II and III of defendant's brief operated to deny him a fair trial. Thus, we reverse and remand.
The evidence at trial established the following facts. Willie Moore owns a four unit apartment building in Trenton. There is one apartment on the first floor; two on the second; and, one on the third which is occupied by Stanley Gant.
On January 26, 1994, the day before the incident in question, "some time in the early morning hours" Moore received a report that someone had broken into the vacant apartment on the second floor which had previously been occupied by Willie Robinson. When Moore arrived he discovered that the door to that apartment had been broken open. When he entered the apartment Moore found defendant asleep. Moore asked defendant to leave, but because defendant "seemed a little lethargic and a little disoriented," Moore called the police. The police escorted defendant from the building. Moore did not "press charges," a decision which he later regretted. The police "admonished [defendant] and rebuked him very severely," after which "they let him go." Moore then fixed the broken door.
On January 27, 1994, the second floor resident, George Smith, heard someone walking in the supposedly vacant apartment next door. He found that the door had been broken open. He also observed that the door to Gant's third-floor apartment had been broken, and heard a noise coming from that apartment as well. Knowing that Gant was visiting his girlfriend up the street, Smith went to notify him.
Upon returning to the building, Gant saw the two broken doors. He observed defendant standing inside his apartment at the top of the stairs. Defendant had "a few items in his hand," including an electrical appliance and a bowl of "oatmeal or something," which he was eating. Gant's apartment had been "ransacked pretty bad" as if someone had been looking for something.
Gant testified that when he entered the apartment, he saw that his television had been removed from its stand in the bedroom and placed on the floor at the top of the stairs. (The jury was shown a photo of the TV set on its stand). Also, his iron had been removed from its usual place on the floor under a counter and was on top of the counter. Gant also saw "some paper that was burnt at the top of the stairs like someone was starting a fire." When Gant asked defendant to leave, defendant "kept mumbling" that he was not "going anywhere" and that he "didn't want to leave." Defendant "kept saying that this was my cousin's apartment or something, something like that." Gant knew that defendant was referring to Vernard Moore, who was Gant's cousin and was also defendant's cousin and who had resided with Gant until about three weeks before this incident.
Officers Martin and Montez responded to the scene at about 12:56 a.m. on January 27. As Martin arrived, defendant was walking out of the building. Gant identified defendant as the one he had found in his apartment, and Martin placed defendant under arrest. Defendant told Martin that his name was Michael Smith, but Martin later determined his real identity.
Upon searching the apartment, Martin saw the television on the floor at the top of the stairs and the iron on top of the kitchen counter. Martin confirmed that two doors had been broken. Defendant did not testify. Defense counsel called Officer Montez who testified that Gant's apartment had no light bulbs or working lights. In addition, he substantially corroborated Officer Martin's testimony except that he stated that the television was not at the top of the stairs but inside the apartment near the bedroom door. On this evidence the jury convicted defendant. This appeal followed.
We turn first to the trial Judge's failure to instruct the jury as to criminal trespass. Burglary requires three elements of proof: (1) purpose to commit an offense; (2) entry into a structure; and (3) absence of license or privilege to enter. N.J.S.A. 2C:18-2(a). The relevant portion of the criminal trespass statute (N.J.S.A. 2C:18-3(a)) requires two elements, which are the same as the second and third elements of burglary. In a burglary case, if the State attempts to prove that the entry was for the purpose of stealing, the trial Judge normally should charge the lesser included offense of criminal trespass, "in case the State should fail to convince the jury of larcenous intent." See State v. Clarke, 198 N.J. Super. 219, 225, 486 A.2d 935 (App. Div. 1985) (dictum).
When there is a "rational basis" for a verdict on a lesser included offense, the Judge must grant a defendant's request for a jury charge on that offense. N.J.S.A. 2C:1-8(e); State v. Crisantos (Arriagas), 102 N.J. 265, 277, 508 A.2d 167 (1986). Where, as here, a defendant fails to request the charge, the test is more stringent: the Judge must charge a lesser included offense only if the evidence "clearly indicates" that such a charge is appropriate. State v. Purnell, 126 N.J. 518, 541, 601 A.2d 175 (1992); State v. Choice, 98 N.J. 295, 299, 486 A.2d 833 (1985). The Judge has no duty "to meticulously sift through the entire record" to uncover some facts that might support a lesser included offense instruction. State v. Purnell, supra, 126 N.J. at 540-41; State v. Maiorana, 240 N.J. Super. 352, 364-65, 573 A.2d 475 (App. Div. 1990), certif. denied, 127 N.J. 327 (1991).
Our task, therefore, is to determine whether the evidence before the Judge clearly indicated that the trespass charge was warranted. In our view it was. The Judge did not have to sift through the evidence in this case to uncover facts to support a trespass charge. On the contrary, the viability of such a charge was clearly indicated. Defendant, who appears to have been homeless, apparently broke into a vacant apartment in the building to sleep on the night before the crime charged. At that time, he was lethargic and disoriented and the owner of the building did not press charges against him. One night later, defendant was found in Gant's apartment, on one floor up, eating a bowl of oatmeal. Gant testified that the apartment was ransacked as if someone was looking for something. In view of the fact that the apartment was entirely without a light source, a jury could well conclude that this is how defendant found the cereal, the bowl, the spoon and the cord Gant said he saw in defendant's hand. When Gant confronted defendant, he did not run away but insisted that he wasn't going anywhere because this was his cousin, Vernard Moore's apartment. Vernard Moore is also Gant's cousin. He had lived in Gant's apartment for six months, vacating it about three weeks before the incident. Also Gant testified that defendant had visited a former tenant, Willie Robinson in the apartment downstairs in which he had been found the previous night. Given defendant's rather confused state as testified to by Moore and Gant, it seems to us that there was ample evidence that defendant was in Gant's apartment for a purpose other than to steal, the most likely being to get in out of the cold January night. To be sure the testimony as to the ransacking and the movement of the iron and the TV would also support submitting the burglary charge to the jury. However, the trespass charge was also essential.
Defendant also argues that his right to a trial before an impartial jury was subverted when the trial Judge dismissed one of the jurors during deliberations. This was juror number five, Mr. Despeines. During jury selection Despeines was accepted without any expressed concerns about his facility with English. He coherently answered all the simple voir dire questions, although he apparently was not completely fluent in expressing himself in English ("I be in to work at four o'clock.")
The jury began to deliberate at about 2:00 p.m. on July 14, 1994. At 5:10 p.m. the Judge sent the jurors a note asking if they wished to continue or return the next day. Up to that point, the jurors had apparently not experienced a sufficient problem with Despeines to warrant their alerting the Judge to it. In response to the Judge's inquiry, the jury sent back a written response: "We will return. We have a juror who cannot reach a decision because he can't 'condemn anyone' for profoundly religious beliefs, and is unable to pronounce a guilty or not guilty verdict. Would this have had a bearing on his service to this jury." The note did not make any reference to defendant's inability to speak or understand English. The Judge called Despeines into chambers and questioned him in detail about his ability to perform as a juror. Their colloquy in its entirety is as follows:
THE COURT: Could you come in, please Mr. Despeines, and sit right there.
THE COURT: It's been brought to my attention that you cannot make a decision because you can't condemn anyone for profoundly religious beliefs, and that you're unable to pronounce a guilty or a not guilty verdict. Is that correct?
JUROR NO. 5: Everything you read not all I said. I just said I find he's guilty because broke in the ...