Before Judges Stern, Wefing and Steinberg.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
This appeal concerns facts best left for a law school hypothetical. It involves the death of an innocent motorist killed in an automobile crash with defendant while he was fleeing from the police. The critical and interesting issues before us, together with numerous other claims also raised, deal with whether the chase was sufficiently related to felonious conduct so as to sustain defendant's conviction for felony murder. We conclude that there was enough evidence before the jury to sustain both defendant's convictions for robbery and for felony murder because the death occurred during the "immediate" flight from one of those robberies. We further conclude that, while a charge on the crime of manslaughter by eluding, N.J.S.A. 2C:11-4b(3), should have been given as a lesser included offense to felony murder and aggravated manslaughter if requested, the absence of such a request precludes reversal of the surviving felony murder conviction. We also merge some of the convictions and reject defendant's other claims without prejudice to a petition for post-conviction relief.
Defendant was indicted for felony murder, N.J.S.A. 2C:11-3a(3) (count one), aggravated manslaughter, N.J.S.A. 2C:11-4a (count two), resisting arrest, N.J.S.A. 2C:29-2 (count three), eluding a police officer, N.J.S.A. 2C:29-2b (count seven), seven counts of aggravated assault, N.J.S.A. 2C:12-1b (counts four, five, six, eight, nine and eleven), three counts of robbery, N.J.S.A. 2C:15-1 (counts ten, twelve and thirteen), burglary and theft of an automobile, N.J.S.A. 2C:18-2 and 2C:20-3 (counts fourteen and fifteen), and theft of a credit card, N.J.S.A. 2C:21-6c (count sixteen). Defendant was convicted on all charges except counts eight and nine. *fn1 The judge merged counts seven (eluding in a manner creating the risk of death), ten and eleven (robbery and aggravated assault of Gloria Miskerik) into count one (the felony murder conviction), and also merged the conviction on count three for resisting arrest into the conviction for aggravated assault on Police Officer Skinner (count four). Defendant was sentenced to fifty years in the custody of the Commissioner of Corrections, with thirty years to be served before parole eligibility on the felony murder and to concurrent sentences on the other convictions.
Defendant raises numerous arguments on this appeal. The contentions are listed in their entirety in appendix A. However, we find that only the following discussion is necessary with respect to the issues raised. R. 2:11-3(e)(2). With respect to others, suffice it to say that our rejection of some of the following arguments concerning the trial proceedings can also be related to the contentions concerning the grand jury and indictment, and that we find no basis on which to dismiss the indictment or any count even assuming a timely challenge thereto. R. 3:10-2(c). See, e.g., State v. Hogan, 144 N.J. 216, 235-39 (1996); State v. New Jersey Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984); State v. Ball, 268 N.J. Super. 72, 119-20 (App. Div. 1993), aff'd, 141 N.J. 142 (1995); State v. Holsten, 223 N.J. Super. 578, 583-85 (App. Div. 1988).
Defendant contends that there was insufficient evidence that he committed robberies, as opposed to thefts from the person. He further contends that, even if there was sufficient proof to sustain a robbery conviction, the proofs were insufficient to relate any robbery to the subsequent police chase, so as to provide the necessary nexus between the felony of robbery and the victim's death. Stated differently, defendant indicates that there was insufficient proof that the automobile crash occurred during the immediate flight from a robbery. However, there is no dispute that felony murder "is committed when the actor . . . is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit 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:11-3a(3) (emphasis added). Independently, a robbery occurs if "in the course of committing a theft," the actor "inflicts bodily injury" (or threatens or puts the victim in fear of such injury) or "uses force upon another," and if such force or injury occurs during the "immediate flight after the attempt or commission" of the theft, that itself constitutes a robbery. N.J.S.A. 2C:15-1a. See also State v. Mirault, 92 N.J. 492, 497-501 (1983) (upholding robbery conviction where the injury was to a third-party arresting police officer). The parties focus on whether there was sufficient proof that the thefts involved force or injury sufficient to sustain a conviction for robbery and, if so, whether the police chase and the ultimate death of the victim were sufficiently related to a robbery for purposes of the felony murder statute. N.J.S.A. 2C:11-3a(3).
This appeal involves the breaking into and theft of a car followed by three separate thefts/robberies by a perpetrator in that car, and the ensuing pursuit of defendant that resulted in the death of a third-party. At approximately 10:30 a.m. on June 18, 1996, Charles McHarris dropped off his 1991 Ford Explorer for servicing at Joe and Joe's Service Station in Riverdale. McHarris parked the car on the side of the lot, left the keys in the car, and informed the service station attendant, Sam Gonzalez, of its presence. Gonzalez responded that it was "fine." At around 2:15 p.m. Gonzalez left the station for lunch, at which time he noticed that McHarris' vehicle was still on the lot. However, when Gonzalez returned to the station at about 2:45 p.m. McHarris' car was missing. When Gonzalez could not reach McHarris to ask him about the car, he feared that the car had been stolen, and called the Riverdale Police Department.
The police arrived at the service station at around 3:00 p.m. to fill out a report, and were also able to contact Mrs. McHarris, who told the police that she would get in contact with her husband. In responding to a page from his wife, McHarris called the Riverdale Police, at which time he was informed that his vehicle was missing. McHarris then went to the police station to speak to a detective about his vehicle. While at the police station, McHarris heard his name announced over the State Police Emergency Network ("SPEN") radio, indicating that he was involved in a purse snatching in Clifton. McHarris, of course, immediately reported that he was not involved in any purse snatching since, as they could see, he was in the police station. The first purse snatching occurred after 4:00 in the afternoon of June 18. Vera Rattansingh got off work at that time and drove to the Bradlees store in Clifton. As she was walking toward the store, a vehicle described as a black Ford Explorer pulled beside her and the driver asked her for directions to Main Street in Nutley. Rattansingh responded that she was not sure, but she would look on a map for him as long as he would move his car so that he would not block traffic. While Rattansingh looked for the street on a map, she realized that the man in the vehicle was attempting to take the purse off her shoulder. According to Rattansingh, "he pulled with so much force that he got the bag off my shoulder and I fell to the ground." The car ran over Rattansingh's left instep of her foot, and her arm and buttocks were bruised.
Shortly thereafter, the Clifton Police Department received a telephone call from an unidentified person who gave the license plate number of the vehicle involved. The number was then entered into the National Crime Information Center computer as a vehicle involved in a robbery. The following day, Rattansingh was called to police headquarters to view a photo line-up. She identified defendant.
Shortly after the theft of Rattansingh's purse, at around 5:00 p.m. on June 18, Diane Dorry walked in the parking lot of the Paramus Park Mall. As Dorry was walking from her vehicle to the mall she heard a man say "excuse me." She turned around and a man in a black Explorer asked her for directions to the Garden State Parkway. Dorry walked up to the car window and began giving him directions when he grabbed the handle of her purse and accelerated the vehicle. She let go of the purse in fear that she might be dragged by the moving car. She described that force was used because of the "pull on [her] shoulder . . . at the time he was accelerating the gas." Dorry was not injured. Dorry then ran through the parking lot yelling for "help" and "police." Dorry eventually found the mall police, but was unable to find or identify the car. She went to the Paramus Police Department around 10:00 p.m. to give a statement of what had occurred. Dorry also identified a photo of defendant as the man in the car who stole her purse.
The third incident also occurred on the same day, while seventy-four year old Gloria Miskerik was shopping with her friend at Lord & Taylor's in the Fashion Center Mall, also in Paramus. The women finished shopping at around 5:00 p.m., when they began walking back to their car. A car, described by Miskerik as a dark van, approached the women and stopped to ask for directions to the Garden State Parkway. While the two women were conversing about who was to give him directions, the man reached out of the car window, grabbed Miskerik's purse and "floored" the vehicle. Miskerik did not let go of the purse. She ran with the accelerating car until eventually she fell to the ground and was forced to let go of her purse. Miskerik was seriously injured by the moving car, leaving her with severe cuts to her head and shoulder, and a blood clot in her left hip. *fn2 The police eventually spoke to Miskerik in the hospital where she and her friend identified defendant from a photograph. *fn3
While defendant was stealing Miskerik's purse, an off-duty police officer, Albert Maas, was parking his car. He witnessed the entire event. Maas immediately directed another shopper to call 9-1-1 while he attended to the injured Miskerik. He then spoke to Paramus Police on the phone to give the dispatcher additional information regarding what he characterized as a "robbery." Eventually an ambulance and the police arrived, at which point Maas described the event again, although he was unable to provide the police with a license plate number.
At 5:36 p.m., Patrolman Richard Skinner of the Washington Township Police Department heard over the SPEN radio a broadcast from the Paramus Police Department that "a second purse snatching with injuries" had just occurred, and the broadcast described the vehicle used in the incidents as a black Ford Explorer. Officer Skinner also indicated that the license plate number was broadcast and stuck in his head because of the unusual beginning, "A-A-A." At this point he recalled the earlier Clifton alarm that also identified a black Ford Explorer involved in a purse snatching and containing a license plate number beginning with "A-A-A." Skinner testified that he "recognized the vehicle just because the A-A-A stood out in my mind and also that it was a black Ford Explorer. I myself drove a black Ford Explorer so it kind of stuck in my head."
Officer Skinner was then instructed by his tour commander, Patrolman John Ryan Smith, to "check Linwood Avenue to see if, you know, the vehicle might come off the highway out of Paramus and that he would go to East Glen Avenue." As Skinner approached Linwood Avenue he observed a black Ford Explorer with license plates matching the SPEN dispatch stopped at a traffic light. Skinner knew "that the vehicle might contain the perpetrator who the police were looking for in purse snatches." As Skinner approached the car, he was able to identify the driver of the vehicle as matching the broadcast description of the man involved in the purse snatchings.
At this point, Officer Skinner verified the license plate on his mobile computer terminal and turned his vehicle around to follow defendant. Thereupon defendant "passed the vehicles on the right side and then just shot through the stop sign." Skinner then activated his overhead lights and sirens, radioed headquarters to alert them that he found defendant, and continued to follow the vehicle south on Pascack Road.
At about 5:40 p.m., Mariana Hickson was also driving south on Pascack Road in Paramus when she heard police sirens and was then unexpectedly hit in the rear passenger side of her vehicle by what she described as a "dark colored large vehicle." Defendant continued "around" Hickson's vehicle, while she pulled over to inspect her car. Hickson observed two police cars speed after the fleeing defendant.
Since traffic was heavy at the intersection of Oradell Avenue, thereby preventing defendant from turning right, he pulled into a Texaco Gas Station. Officer Skinner followed. Defendant then attempted to exit the gas station through another exit, but Skinner blocked that exit with his vehicle. As Skinner began to exit his car, defendant "rammed" the right front fender of the patrol car, causing Officer Skinner to hit his head on the car door jamb. Defendant was then able to exit the gas station and started to head north on Pascack Road. Officer Skinner drew his weapon, ran toward the defendant's car, and ordered him to stop. Defendant nonetheless continued to head north on Pascack Road, Officer Skinner returned to his car and attempted to follow.
At this point, Officer Skinner lost sight of defendant, but he noticed a man on the side of the road yelling, "he went down that way, he went down that way," pointing down Bedford Court. Skinner radioed to headquarters the location where defendant was heading, and turned down Bedford Court where he noticed the black Ford Explorer parked next to the curb on Rutgers Place. As Skinner approached the vehicle, defendant took off again, and Skinner followed him back onto Pascack Road. At this point, Officer Skinner described that defendant "was driving fast and recklessly."
In the interim, Officer Smith had the traffic stopped at the intersection of Pascack Road and Oradell Avenue, so as to block defendant from continuing down Pascack Road. However, defendant avoided Smith, and turned left down Oradell Avenue while Skinner followed close behind. At this point, other police vehicles joined the chase.
As defendant approached and continued through the intersection of Oradell Avenue and Kinderkamack Road, Officer Skinner was "losing ground," although his lights and sirens were on. He watched defendant "swerve back and forth" and drive on the wrong side of the street going "in the wrong lane of traffic." According to Skinner, "[u]p ahead I could see that there was some type of accident, it looked like the Ford Explorer impacted with something however, I couldn't tell what had happened or what it had hit." As he approached, Skinner saw a red Chevrolet Blazer pushed "up on the curb on the other side of a tree," and that defendant's vehicle had come to a stop. As Skinner was arriving, defendant exited the Ford Explorer and started running down the street. Skinner followed him on foot while other police cars arrived at the accident scene. Officer Albert Lepera of the Paramus Police Department joined Officer Skinner in the chase on foot. Meanwhile Lieutenant Richard Kuiters pulled his car in front of defendant to block his path, and Lepera was able to tackle defendant.
The medical examiner declared the driver of the red Blazer, Stephanie Carroll, dead at the scene. He attributed the cause of death to "multiple fractures and injuries" from the accident.
On cross-examination of Officer Skinner, the following was developed concerning the reasons Officer Skinner chased defendant:
Q: Now you're aware that at this time you're chasing him for three purse snatches, one of which is with injury although you don't know how great an injury, correct? In part that's why you're chasing him?
A: I'm chasing him for three robberies with an injury.
A: Purse snatchings is how they came over the radio.
Q: Right. They came over as purse snatches, correct?
Q: They didn't use the word robbery, did they?
A: They did not use the word robbery.
Q: These are fellow police officers who you assume are conversant with the ...