On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Before Judges Baime, Braithwaite and Bilder.
The opinion of the court was delivered by: Baime, P.j.a.d.
Following a lengthy jury trial, defendant was found guilty of purposeful or knowing murder (N.J.S.A. 2C:11-3a(1) and (2)), felony murder (N.J.S.A. 2C:11-3a(3)), first degree robbery (N.J.S.A. 2C:15-1), third degree possession of a knife for an unlawful purpose (N.J.S.A. 2C:39-4d), third degree possession of a weapon under circumstances not manifestly appropriate for lawful use (N.J.S.A. 2C:39-5d), second degree aggravated assault (N.J.S.A. 2C:12-1b(1)), and third degree aggravated assault (N.J.S.A. 2C:12-1b(2)). On the conviction for purposeful or knowing murder, the trial court sentenced defendant to life imprisonment with a thirty year parole disqualifier. A consecutive sentence of twenty years with a ten year parole disqualifier was imposed on the conviction for first degree robbery. Defendant was sentenced to a consecutive term of ten years with a five year parole disqualifier on the conviction for second degree aggravated assault. The remaining convictions were merged. Defendant contends on appeal that: (1) the trial court committed plain error in its charge on accomplice liability, (2) trial counsel was constitutionally ineffective, (3) the prosecutor exceeded the bounds of fair comment in his opening statement, and (4) the sentences were manifestly excessive. We are constrained to reverse.
In the early evening hours of January 12, 1994, Richard Harry was walking home from work when he was accosted by four men and stabbed in the chest. Approximately one-half hour later, Rudolfo Llorente was approached by the same men and was stabbed and robbed. Harry recovered from his near-fatal wound. Llorente did not.
The prosecution's evidence against defendant consisted primarily of the testimony of his alleged confederates - Anthony Ramirez, Greg Hickman and Jimmy Torres. These individuals were each granted immunity and testified that it was defendant who stabbed Harry and Llorente. They also recounted that defendant attempted to rob another person, Alberto Garcia Espado, some time between the two stabbings. Espado testified at trial and confirmed that defendant had attempted to rob him. However, Harry identified Hickman as the individual who had stabbed him. We add that the testimony of Ramirez, Hickman and Torres diverged wildly on many key points, and each gave the police markedly inconsistent statements concerning the extent of their participation in the crime.
Torres, for example, testified that he did not see defendant stab Harry. He claimed, instead, that he heard defendant ask Harry for a quarter. Shortly thereafter, defendant exclaimed he had "just stabbed" the victim and displayed a six or seven inch steak knife to his confederates. Torres further claimed that he and Hickman did not participate in the robbery and killing of Llorente. Torres stated that he and Hickman merely watched impassively as defendant stabbed the victim and Ramirez rifled through the victim's pockets. Torres admitted that Hickman then approached Llorente's lifeless body and picked him up and shook him while defendant cleaned his bloody knife in the snow. Although Hickman's testimony deviated from that of Torres in many details, he agreed that defendant and Ramirez were the principal culprits in the robbery and murder of Llorente.
Ramirez testified that defendant had shown him a steak knife while the two men were walking toward the downtown area to meet Hickman and Torres. According to Ramirez, he did not see defendant stab Harry, having stopped to urinate in a nearby alley. Ramirez claimed that when he caught up to the other three men, Hickman told him that defendant had stabbed the victim. In his trial testimony, Ramirez asserted that defendant said, "he wanted to stick up somebody," as the four men noticed Llorente crossing the street. Ramirez testified that defendant walked up to Llorente and "push him the chest area." Llorente immediately fell to the ground. Defendant, Torres and Ramirez then fled the scene. Ramirez testified that Hickman remained behind. Later, Hickman met the other three men and, while washing the blood from his hands with snow, exclaimed that he had "got paid." Ramirez claimed that, while in prison after their arrest, defendant had ordered him to falsely implicate Hickman in the killing of Llorente.
Lisa Cortes was defendant's sole witness. She testified that Hickman attempted to rob her approximately six months after the murder of Llorente. Cortes recalled Hickman threatening to "do the way him and his friends did the guy on Morgan Street." In her statement to the police, Cortes' recollection was somewhat different. Cortes told the police that Hickman ordered her to "give it up" because he had "killed someone before." Cortes also claimed that Hickman's friends had attempted to prevent her from testifying about Hickman's statement.
It is against this factual backdrop that we consider defendant's arguments.
Initially, we are obliged to reverse defendant's convictions for purposeful or knowing murder, first degree robbery and second degree aggravated assault. These convictions were tainted by the trial court's faulty instructions on accomplice liability.
Defendant neither submitted a request to charge nor interposed a timely objection. We have consistently held, however, that the failure of a trial court to properly charge a jury is grounds for reversal, even though defense counsel failed to object at the appropriate time. State v. Weeks 107 N.J. 396, 410 (1987). "So critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error." State v. Martin, 119 N.J. 2, 15 (1990); see State v. Weeks, 107 N.J. at 410; State v. Grunow, 102 N.J. 133, 148 (1986). We have recently reiterated the point that "`lear and correct jury charges are essential for a fair trial.'" State v. Cook, 300 N.J. Super. 476, 488 (App. Div. 1996) (quoting State v. Brown, 138 N.J. 481, 522 (1994)). The Supreme ...