February 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL L. HOLTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-05-0433.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2008
Before Judges Lintner and Parrillo.
Following a jury trial, defendant Daniel Holton was found guilty of second-degree robbery, N.J.S.A. 2C:15-1(a)(3) (count one); second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count two); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count three); and fourth-degree false incrimination, N.J.S.A. 2C:28-4(a) (count four). He was sentenced to an aggregate fifteen-year term subject to an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
This criminal episode arose out of a break-in that occurred around midnight on January 17, 2003, at the residence of eighty-four year old Ida Solda, at 409 Northeast Avenue, Vineland. Solda had been asleep in her bedroom when she was awakened by a bang on the door, only to find a masked man standing in her hallway. The man's mask had small holes in it, just enough to expose his eyes. Solda screamed at the man to leave, but he refused. Instead, the intruder forced Solda back into the bedroom, took the quilt from her bed, pulled her down onto the quilt, tied her arms tightly with duct tape, ripped the phone cord out of the wall, and bound her legs with the wire. After he threw another blanket on top of her, Solda could no longer see, but heard the man rifling through her drawers, turning over her jewelry box, and emptying her purse. When she no longer heard any noise and realized the intruder had left, Solda attempted to free herself, which she was able to do after some effort, whereupon she ran to a neighbor's house to call the police. It was later discovered the intruder stole $53 in cash from the victim's purse.
When Officers Anthony Capelli and Joseph Montana of the Vineland Police Department arrived at the neighbor's house, Solda was upset and shaken, but managed to describe her attacker as a tall masked man wearing white sneakers. Although the man never spoke during the incident, she ascertained he was white because she saw his hands while he tied her up.
The officers then proceeded to Solda's house where they found the front door had been forced open and broken, and though the rest of the house was untouched, the bedroom and hallway were both in disarray. During the search of the premises and immediate vicinity, Officer Montana noticed two sets of footprints in the fresh snow, made by someone wearing sneakers. The officers tracked one set of footprints from the house south on East Avenue to New Paris Street, then eastbound, ending in the area of 411-413 Northeast Avenue.*fn1 411-413 Northeast Avenue is the residence of Vincent Stratton, and the location where defendant was, at the time, renting a room in the garage. The other set of footprints was not traceable.
The following day, January 18, 2007, Vineland Police Officer Louis Carini went to 411-413 Northeast Avenue and found defendant living in a small eight foot by eight foot garage on the property. Defendant shared this living arrangement with another young man, Charles Hope, and the garage was actually divided by a tarp that had been repaired with duct tape. With defendant's permission, Officer Carini searched the garage and confiscated a pair of defendant's black Rim Rocka sneakers that, it was later determined, did not match the footprints found in the snow.
Defendant himself initiated the next contact with the police. Less than one week later, on January 24, 2003, defendant phoned Detective Francine Webb and told her he had information about the Solda robbery. Upon his arrival at the police station, defendant informed Detective Webb that he had overheard his roommate Hope speaking to the landlord, Stratton, about the robbery. Defendant then related specific details about the crime, including the fact that Solda was bound using duct tape not rope, the perpetrator wore a ski mask with the eyeholes cut out, and the exact amount of money taken. In fact, defendant identified the duct tape used as the tape from his garage apartment.*fn2 Because he was not a suspect and was free to leave, defendant was not given Miranda*fn3 warnings at the time.
After Hope and another man, Bruce Holt, were interviewed and eliminated as suspects, Detectives Webb and Martorano decided to interview defendant a second time. Consequently, Detective Martorano brought defendant to the police station and seated him in the interview room at around 8:50 p.m. on February 12, 2003, at which point Martorano told defendant he did not believe defendant's earlier version of the robbery. When defendant disagreed, and before saying anything else, Martorano gave defendant his Miranda rights at 9:12 p.m.
Since defendant neither reads nor writes, Martorano asked him "if he would understand each right if [the detective] verbally read them out loud to him." Defendant replied, "yes." Martorano then read defendant each individual right, asked him whether he understood each right, to which defendant replied yes, then had defendant sign the Miranda form.
Proceeding with the interview, Martorano inquired whether defendant would be willing to take a polygraph test. Defendant replied that he would not have a problem with that. However, when asked if he would answer questions during the test about the information he gave Detective Webb, defendant refused, saying "[n]o, I'd fail the test." Upon further questioning by Martorano, defendant admitted that he had lied in his previous interview. Martorano then exited the room to talk to Webb.
Both detectives then re-entered to continue the interview. After some additional questioning, defendant admitted having previously lied to Detective Webb, who then left the room. At approximately 10:15 p.m., Martorano administered the polygraph test to defendant, which lasted until 10:40 p.m. Afterwards, when asked by Martorano how he thought he did on the test, defendant replied poorly because while verbally denying involvement in the crime, he was thinking just the opposite. Martorano then informed Webb of the test results and the two detectives spoke with defendant once again.
At this point, defendant offered another account of the robbery, implicating someone named "Q." According to defendant, "Q" had come to defendant's home earlier in the evening of the incident, asking to borrow a crow bar and duct tape to rob a house. Defendant lent "Q" the items, but it was only after defendant heard a loud bang that he realized "Q" was robbing his neighbor.
This version changed once again after Martorano left the interview room. According to Webb, defendant, in an untaped interview, finally admitted conspiring with "Q" to rob the elderly lady, by being the "lookout" while "Q" stole $45*fn4 from her purse. Defendant insisted that he had only acted as a lookout for the robbery: "I was the lookout. I knew what he was going to do, but I swear to God I didn't go into the old lady's house." When asked why he had not mentioned "Q" earlier, defendant cried, saying he was afraid of "Q" because "Q" had threatened his family.
After discussing his involvement off-tape, defendant gave a taped statement, preceded by reissuance of his Miranda warnings at 2:47 a.m., and ending at 3:07 a.m., upon his arrest, approximately seven hours after his arrival at the police station.*fn5 As with the initial Miranda warnings, Webb discussed with defendant the fact that defendant could not read, read each warning to him, asked if he understood the warnings, then had defendant initial each warning as he responded "yes." Defendant acknowledged that he understood his rights, did not have any questions, was willing to talk to the detective, and personally printed his name at the bottom of the form.
Sometime after the taped interview, around 3:00 p.m. on February 13, 2003, defendant called Webb from jail to suggest yet another possible suspect, a person who knew Stratton. Although defendant gave no details, and Webb advised him not to speak with her, defendant nevertheless insisted she talk to Stratton, who apparently was with him in jail. Consequently, Stratton was later interviewed. This followed a previous interview with Stratton about an apparent conversation he overheard between Hope and Holt. Although a tape of that interview had been lost, a supplemental police report of February 11, 2003, summarizes the conversation:
[Stratton] related that he overheard Charles Hope and Bruce Holt bragging to Daniel Holton that they burglarized the residence of the 'old lady[.]' Hope was reported to have tied up the victim and Holt was to have emptied her purse. Stratton gave a taped statement regarding the conversation he overheard.
On appeal, defendant raises the following issues for our consideration:
I. BECAUSE THE STATEMENT THAT THE DEFENDANT MADE TO THE POLICE IN THE EARLY MORNING HOURS OF FEBRUARY 13, 2003, AFTER SEVEN HOURS OF INTERROGATION, WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY MADE, THE TRIAL COURT'S REFUSAL TO GRANT HIS MOTION TO SUPPRESS THE STATEMENT DEPRIVED HIM OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF-INCRIMINATION. U.S. CONST., AMEND. V, XIV; N.J. CONST., ART I, ¶ 1.
II. THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST TO PROVIDE THE JURY WITH A CORROBORATION CHARGE VIOLATED HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., ART I, ¶ 1.
III. THE CRIME OF KIDNAPPING WAS UNSUPPORTED BY SUFFICIENT EVIDENCE BECAUSE THE CONFINEMENT WAS INCIDENTAL TO THE OTHER CRIMES; THEREFORE, THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON THAT CHARGE. (Partially Raised Below)
IV. THE TRIAL JUDGE'S CHARGE ON ACCOMPLICE LIABILITY, WHICH WAS AWKWARDLY SEPARATED FROM THE SUBSTANTIVE CHARGES AND WAS NOT TAILORED TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)
V. THE SENTENCE IMPOSED ON THE DEFENDANT IS MANIFESTLY EXCESSIVE.
We address them in the order raised.
(i) Defendant contends that his statements were inadmissible because he was not Mirandized immediately when the interview began on February 12, 2003, and that his waiver of Miranda rights issued twenty-two minutes later was not knowing or voluntary. In support of the latter, defendant points out that he could not read or write, was questioned for seven hours and given a polygraph test during that time, and the interview was not electronically recorded. We are satisfied the record supports the trial court's decision to admit defendant's statements. State v. Johnson, 42 N.J. 146, 162 (1964).
We measure defendant's claims against well settled principles of law. The "trustworthiness of [a] confession [is] a prerequisite to [its] use." State v. Cook, 179 N.J. 533, 560 (2004). If a confession is obtained through compulsion or coercion, it is considered unreliable, ibid. (citing State v. Jordan, 147 N.J. 409, 425-28 (1997)), and may not be admitted against a defendant because to do so "'would offend the community's sense of decency and fairness.'" Ibid. (quoting State v. Kelly, 61 N.J. 283, 292 (1972)). Even before its decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), the United States Supreme Court had spoken on the issue of involuntary confessions:
[t]he ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.
[Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed. 2d 1037, 1057-58 (1961) (citing Rogers v. Richmond, 365 U.S. 534, 543-45, 81 S.Ct. 735, 741-42, 5 L.Ed. 2d 760, 768-69 (1961)).]
The voluntariness of a confession must be shown by the State beyond a reasonable doubt. Cook, supra, 179 N.J. at 562 (citing State v. Galloway, 133 N.J. 631, 654 (1993)). Confessions may be involuntary because of either physical or psychological coercion, however, unlike the use of physical coercion, the use of psychological coercion is not inherently suspect. Id. at 562-63 (citing Galloway, supra, 133 N.J. at 654). Psychological pressures render a confession involuntary when they are "'very substantial'" and "overbear the suspect's will. In determining whether a defendant's will was overborne, the totality of the circumstances must be examined, 'including both the characteristics of the defendant and the nature of the interrogation.'" Id. at 563 (citing and quoting Galloway, supra, 133 N.J. at 654). "Relevant factors include 'the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved.'" Ibid. (quoting Galloway, supra, 133 N.J. at 654); see also Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978).
If a subject is in custody, he has the right to be told in "clear and unequivocal terms that he has the right to remain silent" so as not to be subject to self-incrimination. Miranda, supra, 384 U.S. at 467-68, 86 S.Ct. at 1624, 16 L.Ed. 2d at 720. A defendant may waive his Miranda rights so long as he does so "voluntarily, knowingly and intelligently." Id. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 707. The warnings are required whenever a person is subjected to direct questioning or its functional equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed. 2d 297, 307-08 (1980). "That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301, 100 S.Ct. at 1689-90, 64 L.Ed. 2d at 308 (footnote omitted). See also Joseph v. Coyle, 469 F.3d 441, 466 (6th Cir. 2006), cert. denied, 127 S.Ct. 1827, 167 L.Ed. 2d 321 (2007). Oftentimes the inquiry turns on "whether [a defendant] was in custody, which under clearly established Supreme Court precedent depends on 'whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'" Coyle, supra, 469 F.3d at 466 (second alteration in original) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed. 2d 1275, 1279 (1983) (internal citations omitted) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed. 2d 714, 719 (1977)); see also Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed. 2d 383, 394 (1995) ("[W]ould a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave[?]"), superseded by statute on other grounds, 28 U.S.C.A. § 2254 (d)(1).
Generally, a court should first determine whether the State has complied with Miranda, and if so, then determine the confession's voluntariness. See United States v. Sims, 719 F.2d 375, 378 (11th Cir. 1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed. 2d 703 (1984). On appeal, we then conduct a thorough review of the record to ensure due process requirements were met. "Where the trial court has admitted a confession into evidence our review of the record must be 'wide and penetrating' to assure that the fundamental fairness requirement of due process is met." State v. Cook, 47 N.J. 402, 415-16 (1966) (quoting State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed. 2d 367 (1961)).
Governed by these standards, we are satisfied that defendant's statements were properly admitted. In the first place, defendant's initial contact with the police on January 24, 2003 was self-initiated when he went to the station to volunteer information, implicating another in the crimes under investigation. It was only after police investigation eliminated other suspects that defendant was asked to return to the station, which he did voluntarily on February 12, 2003, having no apparent reason to believe he was a suspect at that time. See Coyle, supra, 469 F.3d at 466. Upon entering the station, defendant was brought in the interview room, sat down and was then told, for the first time, that the police believed he had lied in his previous statement. Immediately upon his denial, defendant was administered his Miranda rights, only twenty-two minutes after entering the police station. We perceive no constitutional violation in the brief lapse of time during which defendant, in any event, made no incriminating statements.
The fact that defendant may have been unable to read or write is hardly dispositive of the knowing and voluntary nature of his waiver, which then followed. Indeed, in State v. Carpenter, 268 N.J. Super. 378 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994), we held that intelligence was only one of several factors in the totality of circumstances to be considered in determining whether a defendant understood Miranda warnings to knowingly and intelligently waive his or her rights. We stated
[a]lthough defendant is illiterate, has an I.Q. of 71 and left school at age 18 while attending special education classes, those factors are not dispositive of whether he understood the meaning of the Miranda warnings on June 14 and 15, 1990. A defendant's I.Q. is merely a factor in the totality of the circumstances to be considered. [Id. at 385.]
There, the defendant had never before been arrested and could not read. Ibid. When the detective interviewing him found out that he was illiterate, the officer attempted to contact a family member to be with the defendant. Id. at 385-86. Since no family member was available, the detective read defendant his rights in a clear manner. Ibid. In upholding the waiver as knowing and intelligent, we noted that there was no indication either at the time of the warning, or in court during trial, that defendant was not capable of understanding his rights. Ibid.
Here, defendant is an adult with a long history of encounters with the police. In fact, from 2000 to 2003 alone, defendant was arrested eight times. Moreover, on February 12, 2003, Detectives Martorano and Webb read defendant each right and confirmed his understanding thereof before moving on to advise of the next. As in Carpenter, defendant was read his rights in a clear, simple manner, was asked if he had any questions to make certain he understood them, and there is no indication in the record that his illiteracy rendered his waiver of Miranda rights constitutionally ineffective.
Contrary to defendant's next contention, the length of his custodial interrogation was not inherently coercive. For instance, a nine-hour interrogation with only intermittent breaks did not render the defendant's confession involuntary in State v. Cook, supra, 179 N.J. at 563. There, the defendant did not ask to stop, was given drinks, cigarettes and bathroom breaks, never indicated that he was excessively tired, and, though the interrogation was long, it was during the general work day. Ibid. Though the defendant was emotionally distraught during the interview, his will was not overborne. Ibid.
Here, defendant was interviewed for approximately seven hours and given snacks and bathroom breaks during this time. He never indicated he was tired or emotionally distraught. In fact, a substantial portion of the seven-hour period was consumed not in interrogating defendant, but rather in trying to establish the identity of another possible suspect whom defendant had named during the course of the interview. Although unlike Cook, the interrogation here extended beyond midnight, nevertheless defendant never claimed to be tired, nor did he request that the interview cease. On the contrary, defendant seemed intent throughout on convincing police that others were to blame and that his role in the criminal episode was minimal. We thus perceive no inherent coercion in the duration of defendant's interview itself so as to have rendered his confession involuntary.
Neither does the fact that defendant's incriminating statements followed administration of a polygraph test render them inadmissible. See State v. Jackson, 182 N.J. Super. 98, 100-02 (App. Div. 1981). There, we held a defendant's confession admissible even though obtained after being told by police that he had not been truthful during the polygraph exam. Ibid. We reasoned that the defendant had been given the full Miranda warnings immediately prior to taking the polygraph examination, had properly waived them, and that the statement made to the detective thereafter was voluntary and would "under normal circumstances" be admissible. Id. at 100-01.
We perceive no distinction here. Although polygraph tests can create a coercive atmosphere, United States v. Little Bear, 583 F.2d 411, 414 (8th Cir. 1978), nothing in this record suggests that to be the case here. As in Jackson, defendant was given his Miranda warnings and waived them prior to administration of the polygraph test, which he voluntarily agreed to take. His post-test admissions, still only partially incriminating, as they implicated another as principal, were therefore voluntary and not the result of substantial psychological pressures overbearing defendant's will.
Lastly, defendant's custodial statement, rendered on February 12-13, 2003, was not suppressible because not electronically recorded. While our court rules now require, effective January 2007, electronic recordation of all custodial interrogations and confessions of first- and second-degree crimes, Rule 3:17, there was no such requirement when defendant rendered his admissions in this case. Moreover, as the Court noted in Cook, supra, police failure to make electronic recording of a murder defendant's interrogation and confession does not implicate due process and, at the time, did not preclude admission of his confession at trial. 179 N.J. at 559-60.
To recapitulate, defendant himself initiated contact with the police wherein he volunteered information and he was administered his Miranda warnings only twenty-two minutes after his second contact. He indicated his understanding of those rights and freely and knowingly waived them. During the course of the ensuing seven hours, defendant chose to continue blaming others while minimalizing his own involvement, resulting in much of the police time being spent attempting to corroborate defendant's latest version. Neither the duration of the interview nor the polygraph test administered after Miranda rights were issued, singly or collectively, exerted coercive pressure so as to overbear defendant's will. In sum, considering the totality of circumstances, the trial judge's finding beyond a reasonable doubt that defendant made a knowing and voluntary waiver of his rights is supported by sufficient credible evidence. Johnson, supra, 42 N.J. at 161-62.
(ii) Defendant next argues that the trial judge's failure to provide the jury with a corroboration charge constituted reversible error. We disagree. The court's instructions were not error, much less harmful error. R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).
It is well-settled that in order for a confession to be admitted at trial, "'some corroboration is required as a matter of law but if there is such corroboration, [it is for] the jury [to] resolve "arguments and speculation" about its weight and sufficiency.'" Cook, supra, 179 N.J. at 564 (quoting State v. Di Frisco, 118 N.J. 253, 271-72 (1990) (alterations in original)). In Cook, the Court stated that: the State . . . must produce only independent proof of facts and circumstances which strengthen or bolster the confession and tend to generate a belief in its trustworthiness. Or, in other words,
[a]ll elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for independent evidence to bolster the confession itself and thereby prove the offense through the statements of the accused. [Ibid. (internal citations and quotations omitted) (alterations in original)].
Thus, the trial court "'determine[s] whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy.'" Ibid. (quoting State v. Lucas, 30 N.J. 37, 62 (1959)). In other words, the trial court first determines "whether the State has presented independent corroborative evidence of the trustworthiness of the confession." Ibid. (citing Di Frisco, supra, 118 N.J. at 271). If so, the issue then becomes one of fact and is submitted to the jury to "'resolve arguments and speculation about its weight and sufficiency.'" Id. at 564-65 (quoting Di Frisco, supra, 118 N.J. at 272).
Here, in denying the defense motion for judgment of acquittal at the close of the State's evidence, the judge noted there were "multiple pieces of corroborating evidence", including defendant's detailed descriptions of the crime both on and off tape, the victim's testimony corroborating the items defendant said were missing from the home, and physical evidence of footprints leading to defendant's home the night of the robbery.
Having found the existence of independent evidence corroborative of the trustworthiness of defendant's admissions, the judge in this case properly let the jury resolve how much weight, if any, the confession should be given. The judge thus instructed:
If after consideration of all these factors, you determine that any of these statements were not actually made or that any statement is not credible, then you must disregard that statement completely. If you find that any statement was made and that part or all of the statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible. [(emphasis added).]
While the judge did not specifically charge the jury on their duty to find corroboration, there was sufficient evidence to corroborate the substance of defendant's admissions for purposes of sending the question of their reliability to the jury for determination, and the jury was properly instructed on its role in evaluating the strength of that evidence.
In State v. Ordog, 45 N.J. 347 (1965), cert. denied, 384 U.S. 1022, 86 S.Ct. 1942, 16 L.Ed. 2d 1025 (1966), the details of the robbery given to police by the defendant were corroborated by the victims' account of the incident, by the other perpetrators of the crime, and facts that only a participant in the incident would know. Id. at 364. The Court determined that the trial judge had properly submitted the issue of sufficiency of corroboration of a confession to a jury when, even though the jury was not given a specific charge on its duty to find corroboration, the jury charge essentially instructed "that the weight and credibility to be given the confession were for the jury in the light of all the evidence." Ibid.
So too here. The trial judge's instruction sufficed to inform the jury of its proper duty to resolve how much weight, if any, defendant's admissions were to be given.
(iii) Defendant also argues there was insufficient evidence of first-degree kidnapping inasmuch as the victim's confinement was simply incidental to the underlying robbery. We disagree.
N.J.S.A. 2C:13-1(b)(1) recites:
b. Holding for other purposes. A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:
(1) To facilitate commission of any crime or flight thereafter[.]
In order for a movement or restraint of a victim to rise to the level of kidnapping, the action must "substantially increase the risk of harm to the victim and . . . not [be merely] incidental to the underlying criminal act[,]" i.e., the detention must "'significantly increase the dangerousness or undesirability of the defendant's behavior.'" State v. La France, 117 N.J. 583, 591, 593 (1990) (quoting Virgin Islands v. Berry, 604 F.2d 221, 227 (3d Cir. 1979)). In La France, the defendant burglarized a couple's home, forced a seven-month pregnant wife to tie up her husband in the couple's bedroom, then dragged her into the hallway and raped and robbed her. Id. at 585. On those facts, the Court found that a jury could have reasonably concluded that the thirty-minute confinement of the husband was a "substantial period" when added to the harm that befell the wife, and that this was enough to sustain a charge of first-degree kidnapping. Id. at 593.
We have also considered the issue of confinement and upheld the kidnapping conviction of a defendant who left elderly victims bound in their homes after robbing them. State v. Bryant, 217 N.J. Super. 72 (App. Div.), certif. denied, 108 N.J. 202, cert. denied, 484 U.S. 978, 108 S.Ct. 490, 98 L.Ed. 2d 488 (1987), superseded on other grounds, State v. Drury, 190 N.J. 197 (2007). In Bryant, the defendant was convicted of, among other crimes, burglary, theft and kidnapping in connection with several incidents involving elderly victims. Bryant, supra, 217 N.J. Super. at 75. The defendant and his cohorts would enter elderly residents' homes, overpower them with the use of a gun and physical force, and rob them. Ibid. In two incidents, two of the victims were bound and gagged during the commission of the robbery and left restrained while the felons escaped. Ibid. One victim freed himself ten minutes after the burglars left and the other was confined for an unspecified period of time. Ibid. Neither victim recounted the exact length of their confinement at trial. Ibid.
In determining whether to sustain the kidnapping conviction, we first considered "whether the nature of the confinement and the duration of the victims' isolation made them more vulnerable to harm beyond that created by the robbery itself." Id. at 81. To be sure, during the commission of the robbery, the victims were not rendered any more vulnerable to harm by being restrained since their confinement was incidental to the robbery. Ibid. However, the victims' continued confinement, which allowed defendant to flee, "increased the risk to these victims . . . [h]ad the victims been unable to free themselves for an extended period of time, as defendants obviously intended, there was a significant possibility of additional discomfort, physical injury or even death." Ibid. As such, we upheld defendant's kidnapping conviction, reasoning that the "restraints were more than 'incidental to the underlying crime.'" Id. at 82 (quoting State v. Masino, 94 N.J. 436, 447 (1983); State v. Smith, 210 N.J. Super. 43, 61 (App. Div.), certif. denied, 105 N.J. 582 (1986)). See also State v. Denmon, 347 N.J. Super. 457 (App. Div.) (sustaining kidnapping charge where an elderly couple in their eighties was handcuffed to a chair in their home to facilitate defendant's flight after he robbed them), certif. denied, 174 N.J. 41 (2002).
In contrast to Bryant, we overturned a defendant's kidnapping conviction in a sex assault case, State v. Lyles, 291 N.J. Super. 517 (App. Div. 1996), certif. denied, 148 N.J. 460 (1997), reasoning that "the force and coercion used by defendant in putting [the victim] in fear and in physically overpowering her constituted, and was indeed congruent with, the force and coercion necessary to satisfy that element of rape as defined by N.J.S.A. 2C:14-2c(1)." Id. at 527. Since force and coercion were a part of the crime of rape, they could not also constitute kidnapping. Ibid. And, similarly, in State v. Soto, 340 N.J. Super. 47 (App. Div.), certif. denied, 170 N.J. 209 (2001), overruled on other grounds, State v. Dalziel, 182 N.J. 494 (2005), we found no "substantial confinement" to support a kidnapping conviction where a perpetrator robbed a home, told the victim not to move, put tape over the victim's mouth, and when the victim moved and the two struggled, beat the victim to death. Id. at 73-75. We concluded that such action did not constitute kidnapping because the order to not move was incidental to the other crimes for which defendant was convicted. Id. at 75.
The present case, of course, mirrors Bryant and is distinguishable from both Lyles and Soto. Here, the intruder entered the victim's home, pulled her onto a blanket, bound her feet with a phone wire, bound her hands with duct tape, and then threw another blanket on top of her. After she could no longer hear her attacker in her home, the eighty-four-year-old victim was somehow able to untie herself and run across the street to call the police. As in Bryant, the victim in this case was left bound on her bedroom floor so her perpetrator could escape, action that was far more than incidental to the crime of robbery and, no doubt, put her at significant risk for the "possibility of additional discomfort, physical injury or even death" had she remained confined for a long enough period. See Bryant, supra, 217 N.J. Super. at 81.
(iv) Defendant next contends, for the first time on appeal, that the court improperly charged the jury on accomplice liability because it was not tailored to the facts of the case and did not provide adequate guidance. The court's instruction on this score did not constitute plain error. R. 2:10-2; State v. Savage, 172 N.J. 374, 387 (2002).
"[W]hen a prosecution is based on the theory that a defendant acted as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993) (citing State v. Weeks, 107 N.J. 396, 410 (1987)). An accomplice is:
"a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." State v. White, 98 N.J. 122, 129 (1984). Therefore, a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he "shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act." State v. Fair, 45 N.J. 77, 95 (1965). [Id. at 527-28.]
Here, the court charged accomplice liability as follows:
Counsel have also reviewed with you the theory of accomplice liability, and I'm now going to instruct you with regard to that. And that is a concept that is not charged in the indictment, but which you must consider. The State alleges that the defendant is the perpetrator of the crimes named in the indictment. However, you may also find him guilty if he is legally responsible for the . . . criminal conduct of another in violation of New Jersey law which reads as follows: a person is guilty of an offense if it is committed by his own conduct or the conduct of another person for which he is legally accountable, or both. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of an offense. A person is the accomplice of another person in the commission of an offense if, with the purpose of promoting facilitating the commission of the offense, he solicits such other person to commit it and/or aids or agrees or attempts to aid such other person in planning or committing it. This provision of the law means that not only is the person who actually commits the criminal act responsible for it, but one who is legally accountable as an accomplice is also responsible if he, as if he had committed the crime itself.
In this case, the State alleges that the defendant is guilty of the crimes committed by another person because he acted as his accomplice. In order to find the defendant guilty as an accomplice, the State must prove the following four elements beyond a reasonable doubt. First, that another person committed the crimes of robbery, burglary and/or kidnapping as I've already explained those crimes to you. Second, that this defendant Mr. Holton, did aid or agree or attempt to aid the other person in planning or committing the offenses. Three, that Mr. Holton's purpose was to promote or facilitate the commission of the offenses. And four, that Mr. Holton possessed the criminal state of mind that is required to prove, to be proved against the person who actually committed the acts. Remember, that one acts purposely with respect to his conduct or a result thereof if it's his conscious object to engage in conduct of that nature or to cause such a result.
The judge continued, explaining the definitions of aid, agree and attempt. He stated that if the jury found that defendant acted with the purpose of aiding in the crime, he would be guilty as if he had committed the crime himself. The jury was also told to consider accomplice liability for each charge in the verdict sheet. The judge then explained that accomplice liability may be proven by circumstantial evidence and that presence at the scene of the crime may or may not be probative. The court also noted that defendant could be convicted of accomplice liability even though another person was not charged or convicted as principal or has been convicted of a different offense or degree of offense. The court ended with:
In order to convict the defendant as an accomplice to the crimes charged again, robbery, burglary and kidnapping, you must find that the defendant had the purpose to participate in that particular or in those particular crimes. He must act with the purpose of promoting or facilitating the commission of the substantive offenses with which he is charged. It is not sufficient to prove only that the defendant had knowledge that another person was going to commit the crimes charged. The State must prove that it was the defendant's conscious object that the specific conduct charged be committed.
In summary, in order for you to find the defendant guilty of committing the crimes of robbery, burglary and/or kidnapping as an accomplice, the State must prove each of the following elements beyond a reasonable doubt. First, that another committed the crimes. Second, that Mr. Holton's purpose was to promote or facilitate the commission of the offenses. Third, that Mr. Holton did aid or agree or attempt to aid the other persons in planning or committing them. And fourth, that Mr. Holton possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal acts.
Again, I remind you that you must consider accomplice liability separately as to each of the three charges.
The language used by the court mirrors almost exactly the model jury instruction for accomplice liability promulgated by our Supreme Court. See Model Jury Charge (Criminal) "Criminal Liability for Another's Conduct/Complicity" (1995). As such, it adequately informs the jury as to the mental states necessary to convict defendant as an accomplice. See State v. Torres, 183 N.J. 554, 566 (2005). Here, the Court advised as to each element of each crime charged and particularly the mental state necessary for conviction. In this regard, the jury was specifically instructed that it is not sufficient if defendant only had knowledge that another person was going to commit the crimes charged. Rather, to be guilty as an accomplice to a crime, the defendant must be found to have the requisite state of mind, which is the crime's basic element, regardless of whether the principal was ever prosecuted, or convicted of a different offense or degree of offense. Under the circumstances, we are satisfied that the jury charge could not have produced an unjust result.
(v) We reject as well defendant's final challenge that his aggregate fifteen-year term is manifestly excessive. Under N.J.S.A. 2C:43-6(a)(1), a defendant convicted of first-degree kidnapping may be sentenced to a term of ten to twenty years.
The fifteen-year term imposed reflects a careful consideration of the aggravating factors, N.J.S.A. 2C:44-1(a)(3), (a)(6), (a)(9), and (a)(12), which are fully supported in the record, as well as the applicable mitigating factors, N.J.S.A. 2C:44-1(b)(4), (b)(10), and (b)(11). See State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996). We, therefore, find no warrant for our interference.