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State v. Savage

June 20, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SHERRON LATIE SAVAGE, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

In this appeal, the Court reviews trial errors alleged by a criminal defendant convicted of a series of offenses, including murder, felony murder, kidnapping, and conspiracy. Among the errors alleged by the defendant are an inadequate accomplice instruction, failure to charge lesser included offenses, and the erroneous admission of evidence.

Defendant, Sherron Savage and his brother, co-defendant, Terrell Savage, were charged by indictment with second-degree conspiracy to commit kidnapping and/or murder; first-degree kidnapping; first-degree purposeful or knowing murder; and first-degree felony murder. Terrell pled guilty to aggravated manslaughter and was sentenced to a thirty-year custodial term with an 85% period of parole ineligibility. Sherron went to trial.

The facts at Sherron's trial established that on October 7, 1997, a Newark police officer and his partner found Adam Watkins in the fourteenth floor stairwell of Brick Towers, a Newark apartment building. He was badly bruised and naked. There were no witnesses to what happened to him. He was pronounced dead at the hospital about an hour later.

Watkins had been homeless in the days before his death, due to marital difficulties, and had been spending nights at the Brick Towers apartments where Terrell lived with his family. Early on the morning of his death, Watkins left the Terrell's apartment and went to the home of Rashon Baskerville, where he fell asleep on the sofa. That same morning, Terrell discovered that a diamond ring was missing from his apartment and called his brother, Sherron, to ask him to help search the apartment for the ring. They did not find it, prompting Terrell to suspect Watkins of having stolen it. He asked Sherron to take a ride with him to pick up Watkins. The two drove to Baskerville's house. Terrell went into the house while Sherron waited in the car. A few minutes later, Terrell walked out the house accompanied by Watkins.

Thereafter, with Watkins and Sherron in the car, Terrell then drove to see Kenneth Long. During the course of their conversation, Terrell told Long that if Watkins took the ring, he was "going to beat him up." Terrell then drove back to Baskerville's house, where he had a conversation with Baskerville in which he told him that Watkins had "crossed" him. When Baskerville went over to the car, Watkins told Baskerville that the ring was in his house. Baskerville and Terrell accompanied Watkins into the house, where Watkins retrieved the ring and gave it to Terrell. Subsequently, Terrell walked out of the house with Watkins and both got into the car. Terrell then drove off with Watkins and Sherron.

Thereafter, the three men returned to Terrell's apartment building so that Terrell "could beat [Watkins] for stealing out of the house after he gave him somewhere to stay." According to Sherron, Terrell's intention was to beat Watkins to teach him a lesson - not to kill him. When the three men entered the elevator to the apartment building, Terrell punched Watkins in the face. When the elevator door opened up to the sixteenth floor, Terrell and Watkins fell out. Terrell punched Watkins in the face several more times, causing him to fall to the ground. Sherron admitted that he kicked Watkins in his side once when Watkins was trying to get up, because he did not want him to be in a position to attack his brother. Sherron told Terrell to stop hitting Watkins because he had proved his point and had taught him a lesson. According to Sherron, they left Watkins sitting on the floor. At trial, the medical examiner testified that the cause of Watkins' death was homicide-blunt force trauma to the head and that the other injuries Watkins sustained were superficial.

Both Baskerville and Long cooperated with the police investigation. Portions of their statements were used as evidence during the course of the trial.

At the close of the evidence, the trial court gave a lengthy jury instruction on the elements of all of the offenses, including accomplice liability, telling the jury that in order to hold Sherron guilty as an accomplice with equal responsibility to Terrell, it had to find that Sherron shared the purpose to commit the crime Terrell committed. The judge further instructed the jury that it could find Sherron guilty of a lesser included offense if he possessed a different state of mind. The trial judge refused to give an instruction on the lesser included offense of criminal restraint and did not, on his own, give an instruction on the lesser included offense of false imprisonment.

During the course of deliberations, the jury asked for clarification of one of the instructions, which the trial court viewed as dissatisfaction on the jury's part with the state of the law. Thus, the trial judge instructed the jury that the court was the judge of the law - not the jury - and offered no further clarification.

Based on the evidence, the jury convicted Sherron on all counts. At sentencing, the trial court merged the conspiracy conviction into the kidnapping conviction and the felony murder conviction into murder. The court then sentenced Sherron to a custodial term of life in prison for murder, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA) and to a concurrent thirty-year term of imprisonment with a twenty-five and one-half year period of parole ineligibility pursuant to NERA, for first-degree kidnapping.

The Appellate Division affirmed, but vacated the NERA aspect of the sentence and modified the sentence in accordance with the plea bargain. The State filed a petition for certification regarding the NERA sentence and Sherron filed a cross-petition alleging trial error.

The Supreme Court denied the State's petition, but granted Sherron's cross-petition for certification.

HELD: In this case involving convictions for murder, conspiracy, and kidnapping, the trial court's failure to instruct the jury on the lesser included offense of criminal restraint constitutes error requiring reversal of the conspiracy and murder and kidnapping convictions; the trial court's failure to re -explain the accomplice instruction when the jury inquired about its duty under the instruction was plain error, requiring reversal of the conviction for knowing and purposeful murder.

1. Appropriate and proper jury instructions are essential to a fair trial and the standard for assessing the soundness of those instructions is how, under the evidence before them, and the circumstances of the trial, the jurors understand the instructions as a whole. (pp. 10-11)

2. When a prosecution is based on the theory that a defendant acted as an accomplice, the trial court is required to provide the jury with understandable instructions regarding accomplice liability, including the potential for finding a defendant guilty of a lesser included offense, depending on his or her state of mind. (pp. 11-13)

3. New Jersey courts regularly have recognized the importance of tailoring the jury charges to the facts of the particular case. (pp. 13-15)

4. The jury instruction on accomplice liability in this case was neither internally inconsistent nor legally deficient, and was entirely correct in its expression of relevant legal principles. (pp. 15-20)

5. The trial court failed to articulate factually how Terrell could have been guilty of purposeful or knowing murder, and Sherron guilty of one of the lesser included offenses, such as aggravated or simple assault, if he possessed a different state of mind. (pp. 20-21)

6. The trial court's failure to inquire further into the jury's note and to re-explain the accomplice charge in the context of the facts was plain error. Because the evidence does not necessarily support a finding that Sherron shared the same homicidal state of mind as Terrell, the supplemental jury instructions were inadequate to guide the jury in the course of its deliberations on the murder charge. Thus, the conviction for knowing and purposeful murder must be reversed. (pp. 21-23)

7. In order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense. A defendant is entitled to a charge on all lesser included offenses supported by the evidence. (pp. 23-25)

8. An unrequested charge on a lesser included offense must be given only where the facts in evidence clearly indicate the appropriateness of that charge. When a lesser offense charge is requested by a defendant, the trial court is obligated to examine the record thoroughly to determine if the rational-basis standard has been satisfied. The failure to instruct the jury on a lesser included offense that a defendant has requested and for which the evidence provides a rational basis warrants reversal of a defendant's conviction. (pp. 25-27)

9. A jury reasonably could have acquitted Sherron of the kidnapping charge. In the alternative, the evidence at trial provided a rational basis to charge the jury on criminal restraint, and the trial court's failure to do so constitutes error

requiring reversal of the conspiracy and murder convictions. (pp. 28-31)

10. The trial court had no duty on its own to instruct the jury on false imprisonment because the evidence did not clearly indicate or warrant such a charge. (pp. 31-32)

11. The trial court should have charged the jury, at Sherron's request, on criminal restraint as a lesser included offense of kidnapping. Thus, Sherron's convictions for kidnapping and conspiracy must be reversed. The lesser included offenses to be charged during a new trial must be evaluated in light of the evidence adduced at that trial. (p. 32)

12. Under the co-conspirator exception to the hearsay rule, the State must meet three conditions: (1) the statement must have been made in furtherance of the conspiracy; (2) the statement must have been made during the course of the conspiracy; and (3) there must be evidence independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it. (pp. 32-34)

13. A conspiracy continues until its objective is fulfilled. If a statement is made after the conspiratorial objective is completed, it is generally not admissible under the co-conspirator exception. A conspiracy may continue beyond the actual commission of the object of the conspiracy if it is shown that a conspirator enlisted false alibi witnesses, concealed weapons, or fled in order to avoid apprehension. (pp. 34-35)

14. If hearsay evidence is corroborated with sufficient independent evidence that engenders a strong sense of its inherent trustworthiness, it is admissible under the co-conspirator exception. (p. 35)

15. The trial court properly concluded that Sherron's statement to police investigators following the incident constituted independent evidence that is substantial enough to justify admission of a co-conspirator's statement. (pp. 36-37)

16. The portion of Baskerville's statement containing the declarations made by Terrell in the evening hours was inadmissible against Sherron under the co-conspirator exception to the hearsay rule because the statements do not appear to have been made during and in the furtherance of the conspiracy. (pp. 37-39)

17. Based on Long's testimony that Terrell asked him to "cover" for him, it can be inferred that Terrell was attempting to enlist a false alibi witness as well as to avoid apprehension when they spoke. Because the criminal enterprise continued to be carried out when Terrell solicited Long's help in avoiding apprehension, the trial court did not err by admitting that portion of Long's testimony. (pp. 39-40)

Judgment of the Appellate Division is REVERSED, and the matter is REMANDED for further proceedings consistent with the Court's opinion.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LaVECCHIA, and ZAZZALI join in JUSTICE LONG's opinion. JUSTICE VERNIERO did not participate.

The opinion of the court was delivered by: Long, J.

Argued April 30, 2002

Tried to a jury, defendant Sherron Savage (Sherron) was convicted, in connection with the beating death of Adam Watkins (Watkins), of a series of offenses, including murder, felony murder, kidnapping, and conspiracy. The Appellate Division affirmed those convictions and we granted certification to review trial errors alleged by Sherron, specifically, an inadequate accomplice instruction, failure to charge lesser included offenses, and the erroneous admission of evidence. We have carefully reviewed this record in light of the legal issues raised and now reverse.

I.

Defendant Sherron Savage and his brother, co-defendant Terrell Savage (Terrell), were charged by indictment with second- degree conspiracy to commit kidnapping and/or murder, in violation of N.J.S.A. 2C:5-2, N.J.S.A. 2C:13-1 and N.J.S.A. 2C:11-3 (Count One); first-degree kidnapping, in violation of N.J.S.A. 2C:13-1b(1) (Count Two); first-degree purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) or (2) (Count Three); and first-degree felony murder, in violation of N.J.S.A. 2C:11-3a(3) (Count Four). In Count Five, Terrell alone was charged with witness tampering, in violation of N.J.S.A. 2C:28-5a.

Terrell pled guilty to aggravated manslaughter and was sentenced to a thirty-year custodial term with an 85% period of parole ineligibility.

Sherron went to trial, at which the following facts were established: Just before noon on October 7, 1997, Newark police officer David Figueroa and his partner found Adam Watkins in the fourteenth floor stairwell of Brick Towers, a Newark apartment building. He was badly bruised and, except for a pair of socks, naked. There were no witnesses to what had happened to him. About an hour later, Watkins was pronounced dead at the hospital.

Watkins had been homeless in the days before his death, due to marital difficulties, and had been spending nights at the Brick Towers apartment where Terrell lived with his family (Sherron was staying with his girlfriend in another apartment in that same building). Early on the morning of October 7, 1997, Watkins left the Savage apartment and went to the home of Rashon Baskerville (Baskerville). He arrived there at approximately 8:00 a.m and fell asleep on the couch.

That same morning, Terrell discovered that a diamond ring, which he believed to be worth $12,000, was missing from his apartment. Shortly after 8:00 a.m., Terrell called and asked Sherron to help search the apartment for the ring. They did not find the ring and, because Terrell suspected that Watkins had stolen the ring, he asked Sherron to take a ride with him to pick up Watkins. The two drove to Baskerville's house. Terrell entered the house while Sherron waited in the car. A few minutes later, Terrell walked out of the house accompanied by Watkins.

After picking up Watkins at Baskerville's house, Terrell drove to see Kenneth Long (Long), the owner of Kenyor Auto Body. Long testified that Watkins was sitting in the back seat and "had his face up against the glass [of the car window] ... and 'looked scared.'" Long could not see Sherron's face because of the tinted windows on the car. Long further testified that Watkins "was sitting like he wanted to jump out of the car or something." Terrell told Long that Watkins had been at ...


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