December 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES WILLIAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. 02-05-1096-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Wefing and R. B. Coleman.
Defendant was indicted for purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(2); two counts of felony murder, N.J.S.A. 2C:11-3(a)(3); robbery while armed, N.J.S.A. 2C:15-1; conspiracy to commit robbery, N.J.S.A. 2C:5-2; burglary while armed, N.J.S.A. 2C:18-2; unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). Dennis Goldberg and Patrina Crawford were indicted as co-defendants.*fn1 Goldberg was also named in four additional counts, three charging assault upon a police officer, N.J.S.A. 2C:12-1(b)(5)(a), and one charging resisting arrest, N.J.S.A. 2C:29-9(a).
Defendant thereafter entered a negotiated plea of guilty to aggravated manslaughter, N.J.S.A. 2C:11-4, as a lesser-included offense to murder. He was sentenced to twenty years in prison, subject to the terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and the remaining charges against him were dismissed. Defendant has appealed his conviction, alleging that there was an inadequate factual basis to support a conviction for aggravated manslaughter. After reviewing the record in light of defendant's contentions, we are satisfied that defendant is correct. We, therefore, reverse his conviction and remand this matter to the trial court for further proceedings. Defendant's indictment and conviction were based upon an incident that occurred during the evening hours of January 13, 2002, in Bayonne. The only description of the events of that evening contained in the record before us is found in the transcript of defendant's guilty plea, entered on May 12, 2003. Defendant's initial attempt to provide a factual basis for his plea of guilty was set forth in response to questions from his attorney. It proceeded in the following manner:
Q: Mr. Williams, on January 13th, 2002, did you enter the City of Bayonne with Katrina Crawford and Dennis Goldberg (phonetic)?
Q: And were you going to a Laundromat that Mr. Goldberg and Ms. Crawford were aware of with the purpose to do a burglary or a theft?
Q: At some point on the 13th, in the evening, did you arrive at that Laundromat with Mr. Crawford -- Mr. Goldberg and Ms. Crawford?
Q: Did Ms. Crawford enter the laundry --the dry cleaners?
Q: At some point later on, did you attempt with Mr. Goldberg to enter the dry cleaners, and find the door locked?
Q: Did you then go around the side of the building and find a side entrance to the dry cleaners?
Q: And did you likewise find that door locked?
Q: While standing there, did you observe Mr. Goldberg hear something from within the dry cleaner, and start to act wildly?
Q: Did you assist Mr. Goldberg by gaining entry, by kicking the side door and knocking it in?
Q: Did you then enter the dry cleaners with Mr. Goldberg?
Q: And was Ms. Crawford within the dry cleaners when you entered it?
Q: Was there another individual in there?
Q: Had you ever met that gentleman before?
Q: Did you, while standing near Mr. Goldberg, observe Mr. Goldberg take a gun out of his clothing and strike the gentleman twice in the head?
Q: Did you observe the gentleman fall to the ground, and Mr. Goldberg then proceed to kick or to stomp him, in or about the head area?
Q: And initially you did nothing to prevent or stop him; in fact, you aided him by kicking the door into the dry cleaners. Is that correct?
The State declared itself satisfied, but the trial court was clearly troubled by the sufficiency of defendant's statements. It questioned defendant, with additional assistance from defendant's attorney.
Q: Mr. Williams, it was your purpose to assist Mr. Goldberg in breaking into the laundry?
A: I didn't hear you.
Q: It was your purpose to assist Mr. Goldberg in breaking into the laundry?
Q: And you knew he was armed?
Q: You didn't know he had a gun?
Q: Did you understand that violence would be required, sir?
Q: And what part, if any, were you supposed to play in this burglary and theft?
A: What part? Just look-out.
Q: You were going to look out from inside?
A: No. From -- from the front.
[DEFENSE COUNSEL]: Judge, may I?
[DEFENSE COUNSEL] (CONTINUING):
Q: Mr. Williams, initially the plan was that after Ms. Crawford entered, you were to act as a look-out, and Mr. Goldberg was to enter through the front door, and grab the money from the cash register and leave?
Q: However, that plan did not work because when you and Mr. Goldberg returned, the front door to the dry cleaners had been locked?
Q: Is that correct?
Q: So, another plan was, in essence, hatched immediately which was to kick the side door in and gain entry. Is that correct?
BY THE COURT (CONTINUING):
Q: Let me ask you a question, sir. What did you think was going to happen once you kicked in the side door? Did you think it was just -- you were going to walk in and walk out?
Q: With no conflict?
A: Well, it wasn't on my mind to doing anything to him.
Q: I didn't ask you that. What do you think happens when you kick in the side door to a store? You weren't allowed to kick in the door, were you?
Q: And you knew that was wrong?
Q: And you knew you were going in to steal something?
Q: Now, do think that was, like, subtle; the owner wouldn't hear you kick the door in?
A: I didn't think about it at the time.
Q: Well, that was your purpose, wasn't it? To go in and steal something?
Q: And so you and Goldberg kicked the door in and went in?
Q: What did you think was going to happen when the owner confronted you?
A: I didn't know he was in there.
Q: I didn't expect you could see through the walls, sir, but you knew the dry cleaners was open for business; wasn't it?
A: No. It was closed.
Q: It was closed?
Q: Lights on?
A: No. All the lights was off.
Q: Okay. Well, how did Ms. Crawford get in?
A: She was already in the store.
Q: How did you know that?
Q: How did you know she was in the store?
A: Because she never left.
Q: Did you see her go in?
Q: So, then you knew she was at least in the store. You knew somebody else was in the store with her?
Q: And so what did you think was going to happen when you kicked the door in, and this other person was in the store, and you were going to steal his property?
If you're telling me, sir, that you just thought you were just going to walk through the door -- that's nonsense. Okay? You knew what was going to happen.
A: I honestly didn't.
Q: I'm not saying you knew he was going to get killed, but you knew there was going to be violence involved.
A: I --
Q: You know, violence, like somebody was going to get hit.
A: -- no.
EXAMINATION BY [DEFENSE COUNSEL] (CONTINUING):
Q: Mr. Williams, when you kicked the door in, you did not think that you and Mr. Craw--and Mr. Goldberg were going to be able to simply then walk over to the cash register, take the money, and walk out without there being a confrontation, correct?
Q: You knew that some type of confrontation, once you kicked that door in, was going to occur, correct?
BY THE COURT (CONTINUING):
Q: I mean, it's pretty obvious, isn't it? The guy is in there, his money is in there, and you're going to go take it from him. What do you think happens when you try to forcefully take money away from someone?
One of two things happens, right? Either they give up the money without a fight, or there's a fight, right?
Q: And that -- so it's fair to say, you knew there was going to be a confrontation when you did it?
[DEFENSE COUNSEL]: Correct? DEFENDANT: Yes.
At that point defense counsel asked to confer with his client, and the State expressed reservations about the factual basis contained in defendant's answers. Following a side-bar conference, defense counsel posed additional questions to defendant.
Q: Mr. Williams, taking you back to when you were standing outside the side door of the dry cleaners. At some point, Mr. Goldberg heard some type of moans coming inside. Is that correct?
Q: And did he say to you, "I told her I didn't want her to have sex with him anymore."
Q: And after he said that, did he become very angry?
Q: Or was he actually angry as he said it to you.
A: As he said it to me.
Q: And he then starts kicking on the door. Is that correct?
Q: And you join in kicking the door, to help him knock the door down to get in?
Q: Now, at this point, you observe Mr. Goldberg very upset?
Q: And that was as a result of what he heard inside the door?
Q: When Mr. Goldberg got in, do you have any doubt in your mind he was going to beat the person on the other side of that door who is engaging in sexual relations with his girlfriend?
A: No. I have no doubt.
Q: And that -- you don't have a doubt, and that's based on what you observed, and the way Mr. Goldberg was behaving to get into the building. Is that correct?
A: That's correct.
Q: And when you got in, you observed him then strike the man; the man fall to the ground; then stomp or kick him several times before you made any attempt to intercede and pull him away. Is that correct?
Q: And by that point, he had kicked the individual several times, and struck him with a gun at least twice in the head. Is that correct?
BY THE COURT (CONTINUING):
Q: So, you knew once you assisted in kicking down the door that it would be a violent confrontation between you and your co-defendants and the victim?
Q: And you did it anyway?
The State declared itself satisfied, and the proceeding concluded.
The criminal code defines aggravated manslaughter in N.J.S.A. 2C:11-4(a)(1) and (2). Subsection (2), dealing with a defendant causing the death of another while fleeing a law enforcement officer, is clearly inapplicable. To sustain a conviction for aggravated manslaughter under subsection (1) of the statute, the State must establish that defendant "recklessly cause[d] the death [of another person] under circumstances manifesting extreme indifference to human life." The Supreme Court has recently had occasion to address the mental state necessary to support a conviction for aggravated manslaughter. It explained that "[t]o establish that heightened degree of recklessness, the State must prove beyond a reasonable doubt that defendant's actions created a probability as opposed to the mere possibility that death would occur." State v. Bakka, 176 N.J. 533, 550 (2003).
Nothing within defendant's factual basis would support a conclusion that defendant acted with "extreme indifference to human life" when he assisted Goldberg in kicking down the door of the dry cleaning store so that Goldberg could interrupt the tryst in progress. The determination whether the necessary degree of recklessness was present must be made "in view of all surrounding circumstances." Ibid. Here, there were no facts which would indicate a probability that death would ensue. Defendant had agreed to serve as the lookout for a burglary and then helped an inflamed lover in his attempt to achieve redress. He did not know Goldberg carried a weapon until Goldberg used it to strike the victim in the head. From the facts presented, we can only conclude that defendant would have been fairly charged with knowledge that Goldberg intended to visit physical wrath but not that it would proceed beyond an assault.
We are cognizant that by vacating defendant's conviction and remanding the matter, defendant now must face the remainder of the charges in the indictment, including felony murder. Defendant has, however, elected to seek this relief, and we are not free to withhold it simply because the negotiated plea may have provided some practical benefits to defendant. Courts must be very sensitive to the requirement that there be an adequate factual basis for a plea of criminal guilt. After all, a guilty plea is the final relinquishment of the most cherished right--to be presumed innocent of crime until a jury of one's peers has determined guilt beyond a reasonable doubt.
[State v. Smullen, 118 N.J. 408, 414 (1990).]
Defendant's conviction is reversed, and the matter is remanded for further proceedings.