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State v. Cox

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES L. COX, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-03-0134.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 27, 2007

Before Judges Kestin, Weissbard and Payne.

Defendant, James L. Cox, appeals from his conviction of felony murder, N.J.S.A. 2C:11-3a(3), and second-degree robbery, N.J.S.A. 2C:15-1a(1), as a lesser offense of first-degree robbery. On his felony murder conviction, defendant was sentenced to life imprisonment with a thirty-year period of parole ineligibility. A concurrent twenty-year prison term with ten years of parole ineligibility was imposed on the robbery conviction.

On appeal defendant presents the following arguments:

POINT ONE

COX'S RIGHT TO A FAIR AND IMPARTIAL JURY WAS VIOLATED WHERE ONE OF THE JURORS WHO ULTIMATELY SAT ON HIS JURY REVEALED DURING VOIR DIRE THAT HE MAY HAVE HAD AN OPINION REGARDING CO-DEFENDANT HOUSTON'S GUILT. (Partially Raised Below)

POINT TWO

THE TRIAL JUDGE'S WOEFULLY INSUFFICIENT CHARGE ON ACCOMPLICE LIABILITY, WHICH WAS AWKWARDLY SEPARATED FROM THE ROBBERY CHARGE AND INSUFFICIENTLY TAILORED TO FACTS OF THE CASE, COMBINED WITH THE JUDGE'S FAILURE TO CHARGE ASSAULT AND TERRORISTIC THREATS AS LESSER OFFENSES OF ROBBERY, DEPRIVED COX OF A FAIR TRIAL. (Not Raised Below)

POINT THREE

THE TRIAL JUDGE'S FAILURE TO MOLD THE CAUSATION CHARGE TO THE UNIQUE FACTS OF THIS CASE, COMBINED WITH MISLEADING REMARKS MADE BY THE PROSECUTOR REGARDING CAUSATION, REQUIRES REVERSAL OF DEFENDANT'S FELONY MURDER CONVICTION. (Not Raised Below)

POINT FOUR

THE PREJUDICE CAUSED BY THE TRIAL JUDGE'S ERRONEOUS ADMISSION OF JORDAN'S, REED'S AND JOYCE'S OUT-OF-COURT STATEMENTS TO POLICE REQUIRES REVERSAL OF COX'S CONVICTIONS.

POINT FIVE

IN ADDITION TO ERRONEOUSLY IMPOSING A TWENTY-YEAR PRISON SENTENCE FOR SECOND DEGREE ROBBERY WHEN THE MAXIMUM TERM FOR THAT OFFENSE IS TEN YEARS, THE TRIAL JUDGE ERRED IN FAILING TO MERGE THE ROBBERY CONVICTION WITH THE FELONY MURDER CONVICTION. THE JUDGE ALSO ERRED IN USING AGGRAVATING FACTOR (1) AS A BASIS TO SENTENCE COX TO THE MAXIMUM TERM FOR FELONY MURDER -- LIFE IN PRISON WITH A THIRTY-YEAR PAROLE DISQUALIFIER.

POINT SIX

IN VIOLATION OF COX'S RIGHT TO COMPULSORY PROCESS, THE TRIAL JUDGE FAILED TO COMPEL REED'S APPEARANCE AT A HEARING ON COX'S MOTION FOR NEW TRIAL WHERE THE MOTION WAS BASED ON REED'S RECANTATION OF HER TRIAL TESTIMONY, REED HAD BEEN SUBPOENAED TO APPEAR AT THE HEARING, AND REED HAD APPEARED IN COURT AT PREVIOUS SETTINGS FOR THE HEARING.

In a pro se supplemental brief, defendant raises the following argument:

POINT ONE

DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO FAIR TRIAL UNDER ART. 1, PARA. 10 OF THE NEW JERSEY STATE CONSTITUTION, AND UNDER THE SIXTH AMENDMENT OF THE FEDERAL CONSTITUTION, TOGETHER WITH THE DUE PROCESS CLAUSE, BASED UPON IMPROPER REMARKS BY THE PROSECUTION THAT AMOUNTED TO PROSECUTORIAL MISCONDUCT.

We find merit in a portion of defendant's Point Two, warranting reversal and remand for a new trial. We will comment on Point Four since the issues may arise at the retrial. We have no need to address the arguments advanced in Points Five and Six. Defendant's pro se issue is without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

I.

To provide a proper perspective for the discussion which follows, it is necessary to set out the facts in some detail. On October 20, 1998, at approximately 3:00 a.m., Michael Jordan and Roy Nelson, truck drivers from Texas, arrived in New Jersey with an eighteen-wheeled tractor trailer full of cargo. After locating their delivery destination in Mount Holly, and having several hours before they were scheduled to make their delivery, Jordan and Nelson drove on Route 541 in search of a restaurant. While looking for an open restaurant they passed a white female walking on the side of the road. When Jordan stopped the truck and yelled to the woman, later identified as Christina Joyce, she crossed the street and approached the truck.

A brief conversation ensued between the three, during which they discussed the possibility of purchasing sex or drugs. A price could not be agreed upon for sex, but Joyce agreed to help the truckers find some drugs. Joyce, who lived in the Mount Holly area, entered the truck and told the two men that she knew where to purchase drugs. She directed Jordan into the "Gardens" section of Mount Holly and told him to pull the truck into the Anne C. Heller School (Heller School) parking lot. Once the truck was stopped, Joyce exited the truck and went towards Levis Drive to purchase drugs. Jordan turned the truck around and waited with Nelson in the truck.

When Joyce arrived on Levis Drive, she met Cox, Shanai Marshall, and Walter Houston. Joyce, who was familiar with Marshall and Houston, approached Marshall and attempted to purchase drugs. Marshall took Joyce's money but gave her imitation drugs. As Joyce was returning to the truck, she inspected the bag that she had purchased and realized it was fake. Once she arrived at the truck, Joyce told Jordan and Nelson that one of them needed to go back with her to purchase the drugs.

At the same time, Cox, Marshall, and Houston went to Timeca Reed's house, which was located approximately twenty-five feet from where the truck was parked. Marshall knocked on Reed's door and asked Reed for "blunts," which are cigars that have the tobacco removed and replaced with crack. Reed gave Marshall the blunts and sat out on her front porch with Cox, Marshall, and Houston. As they smoked the blunts, Reed testified that she heard the three plotting to take Nelson's money. They discussed selling Nelson fake crack and robbing him, believing him to be in possession of $200. After smoking the blunts, the three left Reed's house and headed to the school.

Back at the truck, Nelson agreed to accompany Joyce to purchase drugs. Nelson walked behind the truck with Joyce and followed her as she entered the Gardens through a hole in a fence. Jordan immediately became suspicious because Joyce entered the Gardens through the hole in the fence rather than taking Nelson out to the road where she had gone the first time. His suspicions aroused, Jordan got out of the truck and walked towards the back of the trailer in order to determine whether he could see either Joyce or Nelson, but he could not see either of them.

Jordan then turned around and saw Marshall walking towards the front of the truck. Marshall came from the same area (Levis Drive) that Joyce returned from the first time she entered the Gardens. Jordan took a small knife out of his pocket and walked towards the front of the truck. Marshall then asked Jordan where the white female went and Jordan became increasingly suspicious that Marshall was stalling and waiting for someone else. When Jordan got close to the front of the truck, Marshall noticed that he had a knife in his hand and ran off towards the apartments on Levis Drive.

Concerned that Nelson had not returned, and his suspicions aroused by Marshall's actions, Jordan got back into the truck and locked the door. Jordan waited in the truck for a few minutes before he noticed Marshall, accompanied by defendant and Houston, walking towards the truck.

As defendant and Marshall approached, Jordan remained in the truck with the doors locked but with the driver's side window slightly open. Defendant jumped on the running board and attempted to sell Jordan drugs. Jordan told defendant to get off the truck and he reached under his seat to make it appear as if he were reaching for a weapon. As he did so, defendant stepped down from the truck.

Nevertheless, Cox, Marshall, and Houston remained at the truck for several minutes, all the while trying to persuade Jordan to roll down his window or open the door. Jordan refused to purchase anything and continued to wait for Nelson.

Joyce and Nelson returned and approached the truck from the passenger's side. Jordan leaned over to the passenger side of the truck and unlocked the passenger door for Nelson. Nelson attempted to enter the truck, but Houston immediately pulled Nelson down from the truck and began punching Nelson in the chest and face. The two men struggled with each other before Houston called out to defendant, who then entered the fray by punching Nelson in the face and body. Houston then pulled a knife and waved it at Nelson's midsection. Joyce yelled at defendant and Houston to stop beating Nelson, telling them that they had already taken his money.

As the assault continued, Jordan thought he heard Houston tell defendant to shoot. At that point, Jordan put the truck into gear, and started slowly driving out of the parking lot in an attempt to summon help.

As he pulled away, Jordan lost sight of Nelson because he started to turn to the left, which put Nelson on his blind side. Before turning the truck, Jordan could see Nelson standing and defendant and Houston striking him. Nelson eventually tripped and fell under the truck and was run over, with one of the tractor wheels crushing his right leg. Jordan, who did not know that he had run over Nelson, looked in his mirror as he was leaving the parking lot and saw Nelson lying on the ground as Houston kicked him and went through his pockets.

Defendant chased after the truck and tried to enter the passenger's side, but Jordan kept driving and prevented defendant from getting inside. Jordan drove to a shopping center approximately a mile away and called police. Police officers arrived at the scene to find Nelson near death in a pool of blood. Nelson was pronounced dead by paramedics who arrived soon afterwards.

Detective Thomas Mastrangelo of the Mount Holly Police Department arrived at the Heller School at approximately 8:15 a.m. There, he spoke to Joyce and learned that Cox, Marshall, and Houston were involved in the victim's death. Both Jordan and Joyce identified all three in subsequent photographic arrays.

An autopsy was performed on Nelson that same day, revealing that he bled to death due to massive crushing injuries to his right leg. The autopsy suggested that Nelson was lying on his back at the time he was run over by the truck, and there was evidence that he had been knocked into the truck by blows to his head and body.

Two days later, defendant was arrested and subsequently gave a statement to detectives from the Burlington County Prosecutor's Office, wherein he confessed to his involvement in Nelson's death. The State introduced his taped statement, which recounted defendant's version of the events in question as follows.

Cox stated that in the early morning hours he was out selling drugs with Little Butchie (Walter Houston) and Shanai (Marshall). At about 3:30 a.m., they went to Timeca Reed's home and sat with Reed on her porch for a few minutes. When Reed went back into her house, they walked to the end of her yard where defendant saw a white female (Joyce) walking from the direction of the school. The woman, whom Cox had never seen before, asked if "anybody got anything?" In response, Marshall gave her a small bag of crack cocaine in exchange for seven or eight dollars. Before she left, the woman said that there was a guy in a truck around the corner who might be looking for some drugs.

Defendant, Marshall, and Houston walked around the corner to the school yard and approached a black male in an eighteen-wheeler. When Cox asked the trucker what he needed, the trucker said that he did not need anything because his friend already went to buy drugs. Cox then showed the trucker a couple of bags of drugs and, again, asked the trucker what he needed. When the trucker reiterated that he was not interested in making a purchase, Cox turned around and began to walk back toward the street. Cox thought that Marshall and Houston were behind him, but when he looked back, he did not see them. He then heard Houston call his name. When Cox walked back toward the truck, he saw a white man trying to get into the truck and Houston pulling him down.

Marshall and Houston then dragged the man toward the back of the truck where Houston put a knife to the man's chest, and said, "give it here or somethin' like that." They then went through the man's pockets. At that point, the black trucker, who was still inside the truck, told Houston to let his friend go. He then reached under the driver's seat as if to grab a weapon. Defendant, believing that the driver was reaching for a gun, put his hand inside his pocket as though he himself had a gun, and screamed, "don't do it, don't do it, don't do it."

At that point, defendant ran toward the back of the truck where Houston was "roughin' up" the white trucker. Defendant then punched the white trucker twice and then ran back toward the front of the truck to keep an eye on the driver, "to make sure [he] don't come out with a gun." As defendant explained:

And I was lookin' at the ah, while in that process they was like sliding him down the truck, I was lookin' inside the truck, the guy [Jordan] was lookin' on the seat, and I said, "Don't do that." You know. All at once I ran over there and then I hit the white guy twice, you know, I hit him twice then ran back over to watch the guy in the truck to see if he was pullin' out a gun.

When asked why he punched Nelson, defendant responded, "Because Butchie was throwing around with the guy and stuff." When asked to elaborate, defendant stated: "It's just a reflex. Dressin' around with the guys and stuff, it was like a reflex I guess. I hit him and ran back and watched the dude in the truck."

As defendant kept an eye on the driver, he could see Houston hitting the white trucker who had "his knees bent out like leanin' against the truck with his back just like on the edge of the truck. He just fell backwards, and at the same time, the truck driver was pullin' off and the truck driver smashed him, ran him over." When the white trucker first fell, defendant "kept tellin' [the driver] to stop because he ran somebody over," but the driver kept going. After the white trucker had been run over, defendant saw Houston go through his pockets as the man lay on the ground moaning. As Marshall and defendant began walking away, Houston ran up behind them and said that he had found "another bag" of crack in the man's pocket. Defendant presumed, from Houston's use of the word "another," that Houston "musta took one while they was scuffling, musta took one from him already." In fact, defendant saw Houston in possession of two bags of drugs as they all walked from the parking lot. Houston subsequently gave one of the bags to the white female (Joyce) to keep her quiet about what had happened.

As defendant, Houston and Marshall were walking from the school, the police came and took Marshall into custody. The police did not apprehend defendant or Houston because they hid on the porch of a house when they saw the police coming. Shortly thereafter, Cox and Houston parted and have not talked since. When asked whether they had any conversation about the incident before parting, defendant said: "Ah, nothin', talkin' bout hope the guy alright, you know what I mean? Then ah, you know what I mean? And then we was quiet after that cause I was scared." When asked whether he and Houston talked about what they were going to tell the police, defendant responded: "No, nothing like that. Just why cause I couldn't believe it happened." Defendant remembered asking Houston what part of the trucker's body was run over, and Houston telling him that it was the trucker's legs. Defendant hoped that the trucker would be alright and did not know the trucker had died until he saw a news report about the incident on television. When he learned of the trucker's death, defendant told his girlfriend and some other people that he was a witness to the incident. When asked why he did not come forward as a witness, defendant explained: "'Cause I had warrants. You know, I got, I gotcha your number and I was gonna call today. I had warrants man, I mean, I ain't wanta go to jail for the warrants. 'Cause my mom and everybody had told me to go to up there and talk to them people 'cause I told them what happened."

When asked if he knew that Houston was going to rob the trucker, defendant said that he was out there "tryin' to sell bags" and had no idea that Marshall and Houston were going to try and rob the trucker. It was not until defendant saw Houston take out a knife and go through the trucker's pockets that Cox "guess[ed]" that Houston was trying to take crack cocaine from Nelson. Defendant stated, "I don't know man. You know what I mean? Like I said, they called me and I went back there I ain't know they, they was gonna even try rob him for drugs and shit. I shoulda kept walkin', that what I shoulda done." Defendant also stated that he knew Houston carried a knife for protection, but did not expect that "he would use it for that purpose." Defendant further stated that he never discussed the idea of committing a robbery with Houston or Marshall, nor did he overhear Houston and Marshall discuss the idea of committing a robbery with each other. From what defendant understood, Houston and Marshall did not plan to rob anyone that night, "it just happened."

At trial, defendant did not testify nor did he call any witnesses or offer any evidence on his behalf.

II.

Defendant launches a multi-faceted attack on the jury instructions. We address his arguments seriatim.

Defendant contends that the trial judge erred in failing sua sponte to instruct the jury on certain lesser offenses, specifically assault and terroristic threats. Concerning the latter, defendant claims that there was evidence he put Jordan in fear for his life by leading Jordan to believe defendant had a gun. But because Jordan was not named as the victim of either the homicide or robbery charges, a terroristic threat against him could not be a lesser offense of crimes against Nelson. The argument has no merit. R. 2:11-3(e)(2). Nevertheless, the situation is quite different as to assault.

There is no doubt that defendant committed an assault upon Nelson, indeed he admitted to it in his statement. The question is whether that assault could be fairly deemed to be a lesser included offense of the robbery which was, in turn, the predicate for the felony murder. Even in the absence of a request, a trial judge must instruct the jury on any lesser included offense that is "clearly indicated" by the evidence. State v. Thomas, 187 N.J. 119, 132 (2006) (citing State v. Jenkins, 178 N.J. 347, 361 (2004) and State v. Savage, 172 N.J. 374, 401 (2002)). On the other hand, if an offense is not lesser included, but only lesser related, the judge would have no such sua sponte obligation in the absence of a defense request. Thomas, supra, 187 N.J. at 134.

An offense is deemed included in another when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged."

N.J.S.A. 2C:1-8d. Here, the offense charged was robbery, which is committed when, in the course of committing a theft, a person either (1) inflicts bodily injury or uses force upon another, or (2) threatens another with or purposely puts him in fear of immediate bodily injury. N.J.S.A. 2C:15-1a. In State v. Battle, 209 N.J. Super. 255, 259-60 (App. Div.), certif. denied, 105 N.J. 560 (1986), we suggested that robbery consisted of theft attended by assault, a simple assault in the case of second-degree robbery, or an aggravated assault in the case of first-degree robbery. "In each case the respective assault is an element of robbery." Id. at 260. However, in State v. Sewell, 127 N.J. 133, 146 (1992), the Court agreed with our observation when Sewell was before the Appellate Division that "the Battle court's characterization 'was not intended to be a complete description of second-degree robbery' because one could be found guilty of second-degree robbery in contexts in which one could not similarly be found guilty of simple assault. Hence, robbery cannot be viewed merely as theft accompanied by simple assault." (citation omitted). Thus, for example, "a thief commits second-degree robbery but not simple assault if he or she only threatens another with bodily injury regardless of its seriousness, N.J.S.A. 2C:15-1a(2), or uses force that entails no injury." Id. at 147. The Court concluded that "the shorthand understanding that robbery equals theft plus assault is inconsistent with the clear, albeit complicated, language of the Code." Ibid.

Nevertheless, it would be an over-reading of Sewell to conclude that assault can never be an element of robbery in particular circumstances, as we determined in State v. Harris, 357 N.J. Super. 532, 540-41 (App. Div. 2003) ("the submission to the jury of theft, simple assault and terroristic threats as lesser included offenses of armed robbery was 'clearly indicated' and the court's failure to charge these lesser included offenses requires a reversal of defendant's conviction and a new trial").

In this case, the robbery count of the indictment was limited to an allegation that defendant violated N.J.S.A. 2C:15-a(1) in that he "did attempt to kill or did purposely inflict serious bodily injury upon Roy Nelson." Unlike the hypotheticals suggested in Sewell, supra, 127 N.J. at 147, the charging document and the proofs did not rest upon a theory that defendant only threatened Nelson with bodily injury or used force that entailed no bodily injury. Under these circumstances, on the record presented, we conclude that assault was a lesser-included offense of second-degree robbery that was clearly indicated by the evidence, and the judge was under a sua sponte obligation to instruct the jury accordingly.

Whether the offense is lesser-included is critical because if it is not, the judge has no such sua sponte obligation. Thomas, supra, 187 N.J. at 134. Since the one (lesser-included) might lead to reversal while the other (only lesser-related), in the absence of a request for an instruction, might not, trial counsel's proper handling of this issue may be dispositive of defendant's rights on appeal. Such is the case here. As a result, if assault were not deemed lesser-included, counsel's failure to request such a charge would likely be deemed ineffective assistance under the Strickland/Fritz*fn1 standard. Because of the conclusion we reach, it is not necessary for us to definitely resolve the issue of counsel's ineffectiveness, which would normally require resort to post-conviction relief. See State v. Preciose, 129 N.J. 451 (1992).

Here, had the jury been instructed on the offense of assault, the record supports a conclusion that the jury might well have convicted defendant on the lesser offense while acquitting on the greater offense of robbery. See Thomas, supra, 187 N.J. at 132 (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). Of course, an assault conviction would not have provided the predicate for felony murder. N.J.S.A. 2C:11-3a(3). Thus, a clear situation for application of the plain error doctrine is established. R. 2:10-2.

Defendant also contends that the judge should have tailored the accomplice liability charge to the facts of the case, if not in the initial instructions, then in response to the jury's request for clarification of that aspect of the instruction.*fn2 We also agree with that argument.

It is fundamental that a correct and understandable jury charge is an "essential ingredient to a fair trial." State v. Gartland, 149 N.J. 456, 475 (1997). The "charge is a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990). And within that generalization, we "have regularly insisted that courts give content to statutory language in their charges to juries," Gartland, supra, 149 N.J. at 475, by "tailoring the jury charge to the facts of the case." State v. Savage, 172 N.J. 374, 389 (2002).

Here, although the judge in his initial charge correctly instructed the jury on the legal principles governing accomplice liability, which we presume the jury understood and followed, id. at 394, there was no effort to integrate these rules with the facts of the case. It is no response that in tailoring the charge to the facts, a judge runs the risk of overemphasizing or underemphasizing one side of the case or the other. We have abundant confidence that our trial judges can fairly convey to the jury the essence of each side as it relates to the relevant legal concept, while making clear to the jurors that they are to consider all of the evidence, not merely the judge's condensation. Nor is it a substitute for an adequate charge that defense counsel made his position clear in summation. Indeed, part of the standard charge is designed to undervalue the arguments of counsel by instructing the jury that such remarks are not evidence and that they must follow the law as delivered by the court.

In any event, even if the initial charge could pass muster without tailoring, the judge's response to the jury's request after an hour of deliberation for "a copy of the law on accomplice . . . in/of robbery," was inadequate. While the judge did, belatedly, inform the jury that accomplice liability only applied to the crime of robbery, he did no more than provide the jury with a written copy of his instructions on accomplice liability. We faced a similar situation in State v. Tucker, 280 N.J. Super. 149 (App. Div. 1995). In that case, the defendant was among a group of individuals who rushed the victim, knocked the victim to the ground, and stole the victim's wallet. Because the defendant was not the person who actually took the wallet, he was charged with robbery on the theory of accomplice liability. At trial, the defendant admitted that he was among the individuals who rushed the victim, but said that he did so with the intent to commit assault, not robbery. He further stated that he was not even aware at the time that one of the other individuals had taken the victim's wallet. Id. at 151.

As here, the trial judge in Tucker gave an accomplice charge that "defined accomplice and discussed the sharing of the same purpose but it spoke in generalities only." Id. at 152. Then, when the jury sent a note asking for guidance as to the law on accomplice liability, the judge "re-read the accomplice charge but the only tailoring of the charge to the case was that he defined the crime in question as the 'robbery of John Bonk.'" Id. at 152-53. While the judge in Tucker also supplied the jury with a written charge, the written charge "again spoke in generalities." Id. at 153.

Finding that the accomplice charge was not sufficiently tailored to the facts of the case, we reversed the defendant's robbery conviction. In so doing, we stated that by "merely recharging the jury in general terms as to robbery and accomplice liability, [the judge] did not really give the jury the guidance it was looking for." Ibid. We noted, "When there is conflicting testimony in a trial, incorporating specific evidentiary facts into the jury instructions is helpful in guiding the jury in its task of determining defendant's guilt or innocence." Ibid. (citing State v. Parker, 33 N.J. 79, 94 (1960); State v. Concepcion, 111 N.J. 373, 380 (1988)).

As in Tucker, the accomplice charge in this case was not tailored to the facts and failed to provide the jury with the guidance necessary to properly determine defendant's guilt or innocence. Here, there was conflicting testimony as to whether Cox and Houston had a plan to rob Nelson. According to defendant, there was no plan. Moreover, defendant denied that he intended to help Houston steal from Nelson when he hit Nelson or when he pretended that he had a gun. Rather, defendant explained that he hit Nelson as a "reflex" and that he pretended that he had a gun to deter Jordan from taking out the gun that defendant reasonably believed Jordan had. The jury should have been told that if, after considering defendant's statement, it was not convinced beyond a reasonable doubt that defendant shared Houston's intent to steal, it was required to acquit defendant of robbery.

It is true that defendant never objected to the court's response or suggested a fact-specific charge, but that failure is merely a testament to counsel's inadequacy and cannot serve to shield the matter from searching review, even under the plain error standard. The facts here cried out for a tailored instruction, particularly in response to the jury's request.

In a similar vein, defendant argues that the charge on causation was inadequate in that it also should have been fact-specific. Under the law of causation, a defendant cannot be convicted of felony murder for a death that occurs in the course of his or her commission of a felony unless the State proves two elements beyond a reasonable doubt: (1) that "but for" defendant's conduct the victim would not have died, and (2) that the victim's death was the "probable consequence" of the commission of the felony. A death which is the probable consequence of the felony is one which is not "too remote, or too accidental in its occurrence, or too dependent on another's volitional acts to have a just bearing on the defendant's liability or the gravity of his or her offense." Model Criminal Jury Charges: Felony Murder - Non-Slayer Participant (N.J.S.A. 2C:11-3a(3)) (revised March 22, 2004); see also Martin, supra, 119 N.J. at 32. In this case, the defendant correctly notes that a critical issue for the jury to determine was whether Nelson's death was a probable consequence of the robbery or whether it was too accidental or too dependent on another's volitional acts to hold him responsible.

In instructing the jury on this issue, the trial judge read the Model Jury Charge on causation, but did not mold the charge to the unique facts of the case. Defendant claims that a carefully tailored charge was particularly important because the State advanced two separate arguments regarding causation, each of which involved divergent factual versions that gave rise to different theories of causation. One theory was that defendant's pretending to have a gun was a proximate cause of Nelson's death, as such an action foreseeably led to Jordan's panic, which in turn led to Nelson being run over. The State's other theory was that Houston forcibly pushed and held Nelson under the truck and that defendant was responsible for this action as an accomplice of Houston in the robbery. Defendant contends that given the complexity of the causation issue, the judge should have provided the jury with a detailed instruction on how to apply the law of causation to the different factual versions relevant to each of the State's causation arguments. Without such guidance, defendant asserts, the jurors could not properly determine whether Nelson's death was the probable consequence of Cox's participation in the robbery.

In support of his argument, defendant notes that, in State v. Martin, the Court recognized the importance of carefully molding a causation charge to the case, especially when the evidence presents different factual versions that give rise to different theories of causation. 119 N.J. at 16-18. The Court explained: Causation, like criminal knowledge or intent, is often a nettlesome proposition to explain to a jury. The explanation, however, is essential if the jury is to apply the dispositive legal principles to the facts. Otherwise, the jury may not be able to evaluate the facts under the appropriate legal standard and thereby determine whether the defendant is guilty of the crime charged. It is not always sufficient "simply to read the applicable provision of the Criminal Code, define the terminology and set forth the elements of the crime." Particularly when the trial projects conflicting versions of the facts, the court should mold its instructions to the factual hypotheses of the parties. An abstract statement about causation . . . is not nearly so useful as one stating the same idea in the context of the various factual alternatives projected by the parties. [Id. at 18 (citations omitted).]

Additionally, defendant argues that the judge's failure to tailor the causation charge to the case was exacerbated by several misleading statements regarding the law of causation made by the prosecutor in summation. The defendant complains that the prosecutor put too much emphasis on the "but for" element of causation in his summation. Additionally, the defendant complains that the prosecutor improperly encouraged the jury to determine Cox's guilt as to felony murder by measuring Cox's culpability against that of Jordan.

We disagree that the prosecutor's comments in summation regarding causation were misleading. The prosecutor merely argued to the jury that Jordan's action of driving the truck away did not make him liable for the victim's death and that it was defendant and Houston who were liable because they put the victim in the position where he was ultimately crushed by the truck. This argument was proper and did not misstate the law on causation. Tellingly, defense counsel did not object to the prosecutor's remarks regarding causation, likely because the remarks were in direct response to his argument that the victim's death was accidental. The prosecutor's comments were therefore fair argument and were not misleading on the law of causation.

In the final analysis, we consider defendant's argument concerning the causation charge to have merit, but need not come to a definite resolution since we have determined that a reversal is required on other grounds. In any retrial, the judge should, if requested, specifically relate the causation charge to the facts and opposing theories, as with the accomplice liability charge discussed earlier.

III.

Defendant contends that hearsay testimony was improperly admitted at trial. Specifically, defendant complains that the trial judge erroneously allowed law enforcement officers who initially interviewed Jordan, Reed, and Joyce to provide the jury with lengthy narratives as to what these witnesses told them. The judge also allowed the prosecutor to introduce the entire taped statement that Joyce provided to the officers.

Defendant contends that these out-of-court statements were inadmissible hearsay that prejudiced his right to a fair trial.

Defendant first contends that it was error for the trial court to allow Detective Scalici to engage in a long narrative recounting his interview with Jordan. Defendant argues that this testimony improperly bolstered the credibility of Jordan's trial testimony, adversely affecting his defense. In allowing this evidence, the trial judge appears to have relied on the prior consistent statement exception N.J.R.E. 803(a)(2). However, both sides agree that the statements of Jordan were not admissible as prior consistent statements because they were not "offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive."

While the court may have been mistaken as to its reasoning, the State argues that the testimony of Detective Scalici was not prejudicial enough to amount to plain error under R. 2:10-2, there having been no objection. We agree. At no point did Detective Scalici read from the statement Jordan gave him or otherwise reiterate Jordan's testimony. The fact that defense counsel never objected to the substance of Scalici's testimony at trial*fn3 , cross-examined Scalici extensively in regards to Jordan's statement, and even directed Scalici to read from Jordan's statement aloud, makes it clear that any error by the trial court was, at best, only minimally prejudicial and not grounds for reversal.

Defendant similarly contends that the trial court erred in allowing Detective Scalici to give a summary of what Timeca Reed told him when he took a statement from her soon after the murder. However, unlike the Jordan statement, Reed's testimony at trial differed markedly on some key points with the statements she made to Scalici. Most notably, Reed's testimony at trial stated that she never heard defendant actively participate in planning to rob the victim, Nelson. However, Scalici testified that Reed told him that defendant was in fact a participant in planning the robbery. Thus, Reed's statements to Scalici on the central issue of the defendant's participation in the planning of the robbery were more advantageous for the State than her testimony at trial.

Defendant argues that because the prosecution failed to confront Reed with these prior inconsistent statements when she was on the stand, they were foreclosed from using her statement later in the absence of a chance for her to explain the inconsistencies. Indeed, N.J.R.E. 613 states that "[e]xtrinsic evidence of a prior inconsistent statement made by a witness may in the judge's discretion be excluded unless the witness is afforded an opportunity to explain or deny the statement and the opposing party is afforded an opportunity to interrogate on the statement."

While, at first glance, the defendant's argument appears to have merit, the State responds that defense counsel extensively cross-examined Reed on her statement when she was on the stand, and read long portions of her statement to highlight inconsistencies between her statement and her trial testimony. Defense counsel even directed Scalici, on cross-examination, to read portions of Reed's statements aloud. As a result, we conclude that defendant was not prejudiced by the admission of this testimony, to which he, once again, failed to object.

Defendant's final claims of error regarding his convictions are that the trial court erred in allowing Detective Mastrangelo to testify about what Christine Joyce said in her statement to police after the murder, erred in allowing the prosecutor to play Joyce's tape recorded statement to the jury, and erred in failing to give proper jury instruction on prior inconsistent statements.

The transcript reveals that during Joyce's direct examination her testimony differed on several points from her statement to Mastrangelo. The prosecutor inquired about these inconsistencies and used her statement in an attempt to refresh her recollection. On cross-examination, defense counsel elicited testimony from Joyce that at the time of her statement she was facing criminal charges, was under the influence of crack cocaine, and that the police only recorded a select portion of her statement. Defense counsel also cross-examined Joyce with her testimony from co-defendant Houston's trial where she testified that the victim was not pushed under the truck but merely tripped and fell.

Subsequently, the State called Sergeant Mastrangelo who testified about his involvement in the murder investigation and briefly summarized what Joyce told him when she gave her statement. The prosecutor then sought to have Joyce's audio-taped statement played to the jury, to which defense counsel objected, claiming it was unnecessary and cumulative. In response, the prosecutor argued that the statement was admissible as a prior inconsistent statement as it was given under reliable circumstances and was inconsistent with her trial testimony. The judge agreed and allowed the tape to be played to the jury in its entirety.

Defendant's main contention regarding Joyce is that it was improper to play the taped statement. While conceding that the tape contained admissible prior inconsistent statements, defendant notes that only portions of the tape contradicted the trial testimony of Joyce. Thus, defendant argues, the prosecutor did not have license to play the entire statement to the jury, and that doing so bolstered Joyce's prior inconsistent statement. Defendant supports this bolstering argument by noting that the prosecutor had already established the inconsistencies between Joyce's out-of-court statement and in-court testimony by reading them into the record. Defendant thus submits that the taped statement's probative value was minimal when compared with its prejudicial effect and should have been excluded under N.J.R.E. 403(b).

Prior inconsistent statements are admissible as substantive evidence if they are inconsistent with a witness's testimony and, if offered by the party calling the witness, are sound-recorded or in writing made or signed by the witness. N.J.R.E. 803(a)(1)(A). In addition to the limitations imposed by the evidence rule, the court should also examine other enumerated factors, including:

(1) the declarant's connection to and interest in the matter reported in the outof-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion of giving the statement, (4) whether the declarant was then in custody or otherwise a target of the investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion [or a] summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability of the statement, and (15) the presence or absence of corroborating evidence. [State v. Mancine, 124 N.J. 232, 248 (1991) (citing State v. Gross, 121 N.J. 1, 10 (1990)).]

It is not the credibility of the statement per se that the court determines, but whether the circumstances under which it was given justify its admission as substantive evidence. Biunno, Current N.J. Rules of Evidence, Comment 2 on N.J.R.E. 104 (2006). The trial court is to determine reliability of the statement by a preponderance of the evidence at an N.J.R.E. 104 hearing, and its decision is reviewable under an abuse of discretion standard. Mancine, supra, 124 N.J. at 256; State v. Spruell, 121 N.J. 32, 41-42 (1990).

The State argues that since it was unaware that Joyce's trial testimony would be inconsistent with her statement, a hearing pursuant to N.J.R.E. 104 did not take place prior to trial. Instead, the judge considered the request to admit the recording as a prior inconsistent statement at side bar, weighed the requirements for admissibility such as whether the statement was given under reliable circumstances, and properly determined that the statement was admissible. That ruling did not constitute a misapplication of discretion. Joyce's statement was sound recorded and given under oath pursuant to N.J.R.E. 803(a)(1), and she was not charged with any crime and had no apparent motive to lie, as she did not know defendant. Furthermore, defendant had an adequate opportunity to contest the validity of the recording through proving Joyce was on drugs at the time. Thus, no substantial rights of defendant were infringed.

Defendant also argues that the trial court's failure to give the Model Charge on prior inconsistent statements or otherwise guide the jury as to how to evaluate Joyce's taped statement was in error. Indeed, the State concedes that the trial court did not provide such a jury instruction, but instead argues that the court's instruction regarding witness credibility was sufficient to cure this error. Moreover, the State argues that the failure to give a charge on prior inconsistent statements was harmless because Joyce's out-of-court prior inconsistent statement lacked any significant substantive exculpatory value that is pertinent to the jury instructions whose omission defendant challenges. We agree with the latter argument. The inconsistencies between Joyce's statement and her trial testimony did not exculpate defendant in any respect, as noted in defendant's own brief. As a result, because the importance of the out-of-court prior inconsistent statement went solely to the issue of credibility, and had no substantive exculpatory value relevant to the jury instruction on prior inconsistent statements of witnesses, such an instruction was not needed to protect defendant's rights.

In sum, all three witnesses, Joyce, Jordan and Reed, testified at trial and were subject to cross-examination concerning their statements to police. As a result, defendant suffered no prejudice from the testimony concerning the statements. See McCormick On Evidence, § 245 (3d ed. 1984) ("personal presence eliminates the danger that in the oral reporting of an out-of-court statement the witness reporting the statement may do so inaccurately"). Furthermore, none of the testimony defendant now objects to had any crucial impact on the trial. When the testimony in question is analyzed in the context of the entire trial, it is readily apparent that the testimony had no capacity to bring about an unjust result. State v. Long, 137 N.J. Super. 124, 134 (App. Div. 1975), certif. denied, 70 N.J. 143 (1976).

IV.

As a result of our disposition, we have no need to address defendant's arguments concerning the jury voir dire. We note, however, that the responses of juror Dudley strongly suggest that he should have been excused for cause. The failure to excuse Dudley for cause would, of course, only be a basis for reversal if any member of the deliberating jury were shown to have been less than impartial. In that regard, juror Hickman's responses were ambiguous and a hearing would have been required to determine who he knew, what he knew, and how that knowledge might have affected his thinking. As noted, we need not resolve these questions. Nor need we address defendant's sentencing arguments.*fn4

Reversed and remanded for a new trial.


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