On appeal from Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication October 31, 1997.
Before Judges Conley, Wallace and Carchman. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
The opinion of the court was delivered by
This appeal from murder and other related convictions arises from an armed drug robbery involving three perpetrators that either went according to plan, as the State contends, or went awry, according to defendant. At issue are errors in the jury instructions on the accomplice liability and attempted murder charges under State v. Bielkiewicz, 267 N.J. Super. 520, 632 A.2d 277 (App. Div. 1993), and State v. Rhett, 127 N.J. 3, 601 A.2d 689 (1992). The errors were not objected to below and thus must be viewed under the rubric of plain error. We conclude that the "possibility of inJustice [arising from the errors] is 'sufficient to raise reasonable doubt as to whether the errors led the jury to a result it otherwise might not have reached.'" State v. Hogan, 297 N.J. Super. 7, 21, 687 A.2d 751 (App. Div. 1997). See State v. Cook, 300 N.J. Super. 476, 488-89, 693 A.2d 483 (App. Div. 1996). Erroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error. Ibid. We conclude the errors here are not harmless and that defendant's murder, attempted murder, and aggravated assault convictions must be reversed.
Either as an accomplice or principal, we cannot be sure which from the jury verdict, defendant was convicted of the first-degree murder of Jamal Scott, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree attempted murder of Lizabeth Rivas, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3a(1) (count four); second-degree aggravated assault upon Johanna Rivera, N.J.S.A. 2C:12-1b(1) (lesser included offense of count five); third-degree aggravated assault upon Carmen Rivera, N.J.S.A. 2C:12-1b(2) (lesser included offense of count six). Defendant was also convicted of the felony-murder of Jamal Scott, N.J.S.A. 2C:11-3a(3) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a (count seven); and third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count eight). At sentencing, counts two (attempted murder of Jamal Scott) and seven (possession of a weapon for an unlawful purpose) were merged into count one (murder of Jamal Scott). An aggregate term of life plus thirty-five years of imprisonment, forty-five years to be served without parole eligibility, was imposed. The court sentenced defendant on each count as follows: on count one, first-degree murder, life imprisonment, thirty years without parole; on count three, first-degree robbery, twenty years imprisonment, ten years without parole, concurrent to the sentence imposed on count one; on count four, attempted murder, twenty years imprisonment, ten years without parole, consecutive to the sentence imposed on count one; on count five, second-degree aggravated assault of Lizabeth Rivera, ten years imprisonment, five years without parole, consecutive with the sentences imposed on counts one and four; on count six, third-degree aggravated assault of Carmen Rivera, five years imprisonment, consecutive to the sentences imposed on counts one, four and five; on count eight, unlawful possession of a weapon, five years imprisonment concurrent with the other sentences. The necessary fines and penalties were also imposed.
After defendant's notice of appeal was filed, we remanded the matter to the trial court for resentencing on the armed robbery conviction (count three) to a mandatory extended term pursuant to State v. Haliski, 140 N.J. 1, 656 A.2d 1246 (1995). Pursuant to that remand, the trial court imposed a mandatory extended term on count three of forty years imprisonment, twenty years without parole, to run concurrent with the sentences previously imposed.
The State's evidence was the following. During the evening of July 20, 1991, Johanna Rivera, Jamal Scott, his girlfriend Carmen Rivera (Johanna's sister), eleven year old Lizabeth Rivas and Lizabeth's younger sister, were at Santa Diaz' house at 572 Raritan Street in Camden. Jamal was a local drug dealer for whom Johanna would sometimes sell drugs. Johanna and Jamal were sitting at the dining room table "capping up" *fn1 cocaine when Lance Phillips (Poppa Lance) came into the house around 4:30 a.m. Carmen testified that Jamal showed Poppa Lance the supply of cocaine, almost one kilogram. After about twenty minutes, Poppa Lance left and Johanna went to sleep in the living room.
A few minutes after Poppa Lance left, Jamal and Carmen went outside to sit on the porch. They were outside for less than one hour when a car they had never seen before, a blue-green Honda Accord, drove past with one person inside. Moments later, when the car came back again, three men dressed in black with ski masks over their heads jumped out of the car and ran toward the house. Jamal grabbed the bag of drugs next to him, ran into the house and attempted to close the door.
The three men ran to the house, one of them grabbed Carmen by the shirt, pushed her and unsuccessfully shot her with a "silver gun." She escaped unharmed into the bushes. She described the shooter as tall and "brown-skinned." When asked by police if any of her friends fit the description of the man, she replied Poppa Lance, but added "I wouldn't think it was him because we were friends, you know?"
Inside the house Johanna Rivera, seventeen years old at the time, awoke to a "very loud noise." She saw Jamal "struggling against the door" as people were trying to push their way inside. Johanna saw a gun come through the crack of the door and someone shot Jamal in the back. Struggling with one man, Jamal pushed his mask up and eleven year old Lizabeth recognized Poppa Lance. According to Johanna, two of the men shot Jamal "about five times."
One of the men asked Johanna where "the stuff" was and she told him that Jamal had it. Then Johanna ran from the living room and laid on the floor in between the dining room and the kitchen. She testified that a "tall dark-skinned" man came into the kitchen and attempted to shoot her with a black gun, but missed. A second man, whom she described as tall, stocky and "light-skinned" with a chrome .45 caliber handgun, shot her in the right arm. She did not see the third man with a gun. Johanna saw the "tall dark-skinned guy" walk upstairs and he stayed there for three to five minutes. While she heard him come downstairs and heard a gun go off, she did not look up again until she heard the door slam as the men left.
Santa Diaz was in the front upstairs bedroom with her seven year old son, Samuel, when she heard a noise that sounded like "firecrackers." Santa testified that a man came up the stairs, pointed a gun at her and asked if she had any drugs. The man was thin, black, approximately six feet tall and dressed in black with a mask. At the side of the bed, he grabbed a plate covered by a towel and went downstairs. Eleven year old Lizabeth testified that when the man came back downstairs, he picked her up by her hair, kicked her and shot her in the chest. After the three men left, the tall dark-skinned man returned for a few seconds, went directly to Jamal, grabbed a bag of drugs from underneath his leg and left. The men then drove away to South Camden where they abandoned the car, including a bag containing the black clothing and the guns, at the corner of Newton and Trenton Avenues.
Johanna Rivera suffered a gunshot wound to her upper right arm. Lizabeth Rivas suffered a collapsed lung and a gunshot wound to her upper right chest, four inches above her heart. Jamal Scott died from the combined effects of nine gun shot wounds to the head, trunk and right arm.
Police recovered seven nine-millimeter casings, five nine-millimeter bullets, nine .45 caliber casings and six .45 caliber bullets. Two additional .45 caliber bullets were recovered from Jamal's body. Ballistics testing showed that five nine-millimeter bullets were fired from the same gun, seven nine-millimeter casings were fired from the same gun, six .45 caliber bullets were fired from the same gun, and nine .45 caliber casings were fired from the same gun. There were, then, two guns fired at the scene, a nine millimeter and a .45 caliber. Neither the casings nor the bullets matched any recovered weapon.
While Lizabeth was in the hospital, the police showed her eight photographs and she identified Poppa Lance as the man who shot Jamal. The police interviewed him and based on his statement, decided to question defendant.
In his taped police statement, defendant stated that Poppa Lance asked him to "stick up some guy from Raritan Street named Jamal." The plan was solely to get drugs by means of "a stick up, you go in, you lay people down, you take what you went there for and you get out." Defendant supplied a bag containing a black nine-millimeter gun and an Intertech Tech-9 nine-millimeter gun. Although Poppa Lance had his own weapon, a nickel plated .45 caliber handgun, he requested two additional guns. Defendant denied entering the house with any weapon and, indeed, it appears that only two of the three robbers were involved in the shootings. During the incident, defendant admitted that he wore gloves and a bulletproof vest under his clothing for protection. He explained that since he was the only one with gloves on, he had to touch everything and everybody. Although Poppa Lance had told defendant he "was thinking 'bout doing everybody" in the house "because they know that he was the last person that was in there," defendant claimed that he and the third man thought they had talked him out of it. However, he said he heard a shot when Poppa Lance first encountered "the girl" on the front porch and Poppa Lance fired another shot at Jamal as they forced their way into the house. Once inside the house, defendant went into the back rooms to "sweep," everybody down and he pulled one girl to the ground by the shoulders. Defendant admitted going upstairs to "sweep" where he encountered a woman and a boy. The woman directed him to a plate covered with a towel which contained crack. When defendant came downstairs with the plate, he said he heard four more shots and noticed Jamal "had a lot of holes in him." As defendant searched Jamal and the third man stood outside, he said he heard another shot and saw Poppa Lance standing over the "little girl" pointing a gun at her. Underneath Jamal's leg, defendant found a blue and white paper bag with a large clear plastic sandwich bag inside containing a white substance. Defendant said in his statement that he and the third man were angry at Poppa Lance for shooting people inside the house.
Defendant gave police written permission to search a storage bin in Pennsauken where they seized a Mossberg shotgun, an empty case for an Intertech Tech 9 gun and several other guns. The police also found a black gym bag containing black clothing, but it did not have any blood on it. Defendant's fingerprints were not found on any of these items. As we have said, none of the casings nor bullets found at the scene matched the weapons seized.
In contrast to his police statement, defendant testified at trial that he cooperated with the police and gave them a statement in order to protect his family. He said he either made up the information he gave in his taped statement or used information he had heard on the streets.
On appeal defendant raises the following contentions:
THE JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY DID NOT COMPLY WITH STATE V. BIELKIEWICZ.
THE JURY INSTRUCTIONS ON ATTEMPTED MURDER DID NOT COMPLY WITH STATE V. RHETT.
DEFENDANT'S FOUR CONSECUTIVE SENTENCES ARE EXCESSIVE.
In a pro se supplemental brief, defendant contends:
DEFENDANT WAS DENIED DUE PROCESS BY THE FAILURE OF THE STATE TO PROVIDE HIM WITH A FAST AND SPEEDY TRIAL AS GUARANTEED BY THE CONSTITUTION OF NEW JERSEY AND THE UNITED STATES.
THE TRIAL COURT FAILED TO GIVE AN INSTRUCTION ON UNANIMITY OF THE JURY'S VERDICT, TO NOT COMPROMISE OR DO VIOLENCE TO ONE'S ...