March 12, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PHILLIP J. KING, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 06-01-00003.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Cuff, Lihotz and Simonelli.
On January 4, 2006, a Salem County Grand Jury returned Indictment No. 06-01-00003 charging defendant, Phillip J. King, Jr., his brother Richie D. King, and his sister Phyllis D. King with second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one); second-degree attempt to cause serious bodily injury, N.J.S.A. 2C:12-1b(1) (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count three). Phyllis King was also charged with second-degree robbery and fourth-degree theft (counts four and five).
The Kings were tried as co-defendants before a jury. Phyllis King was acquitted of all charges. The jury could not reach a verdict as to Richie King, who later pled guilty to an amended charge of simple assault. The jury acquitted defendant of third-degree terroristic threats and second-degree aggravated assault. Defendant was convicted of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1a(1), and second-degree burglary.
On November 28, 2006, Judge Forester sentenced defendant on count one to five years imprisonment with an 85 percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently with a sentence he was serving for a parole violation. On the disorderly persons offense, defendant was sentenced to a concurrent nine-month term of imprisonment.
On appeal, defendant presents these issues for our review:
POINT I. ALTHOUGH THE FACTS CLEARLY RAISED THE LESSER-INCLUDED OFFENSES OF CRIMINAL TRESPASS AND SIMPLE ASSAULT BY MUTUAL FIGHT, THE JURY WAS NOT INSTRUCTED ON EITHER OFFENSE.
POINT II. ALTHOUGH THE FACTS RAISED THE AFFIRMATIVE DEFENSES OF SELF-DEFENSE AND DEFENSE OF ANOTHER, THE JURY WAS NOT INSTRUCTED ON EITHER DEFENSE.
POINT III. TRIAL COUNSEL'S FAILURE TO RAISE THE ISSUES ADDRESSED IN POINTS I AND II DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV. THE NINE-MONTH TERM IMPOSED ON THE DISORDERLY PERSONS OFFENSE IS ILLEGAL.
The State concedes defendant's sentence on count two was entered in error and must be corrected. Nevertheless, we reverse defendant's convictions as we conclude the trial court erred in failing to charge applicable lesser-included offenses grounded in the evidence. State v. Garron, 177 N.J. 147, 180 (2003), cert. denied. 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004).
On November 26, 2005, at about 2:00 a.m., Richie, Phyllis, and defendant drove to 1 Delaware Avenue in Penns Grove to pick up the mother of defendant's son. Richie remained in the car while Phyllis and defendant went to the building and rang the doorbell. Edward Lewis, the building handyman, opened the door for Phyllis and defendant.
The first-floor tenant, Rafael Acevado, who testified for the State, recited his version of the incident. Acevado admitted he was angered when awakened by the doorbell and decided to confront his neighbors about entertaining early morning visitors. Acevado headed toward the steps to the second floor, ahead of Phyllis and defendant. Acevado and defendant exchanged various comments as they ascended the stairs. When Acevado reached the first landing, he turned around to face Phyllis. Acevado maintained Phyllis put her hands on his abdomen and said: "you ain't going nowhere." Acevado then observed defendant running up the steps toward him. Acevado stepped around Phyllis and descended the stairs toward defendant. Acevado kicked defendant and knocked him down the stairs. Acevado moved down the steps and "started fighting [and] exchanging blows" with defendant in the hallway. Acevado asserts Phyllis hit him from behind. Acevado had the upper hand on defendant and "finally got [defendant] down" where Acevado could get away, but rather than entering his apartment, he turned toward defendant and resumed fighting. Acevado then kicked defendant against a door, ran to his apartment, locked the door, and told his girlfriend to call the police. Acevado retrieved a frying pan and leaned against the door. The door was kicked off its hinges. After the door fell, both Richie and defendant came rushing into Acevado's apartment. Acevado began striking defendant and Richie with a frying pan until he broke the handle. At some point, Richie overpowered Acevado and choked him.
Kimberly Styles, Acevado's girlfriend related the events she witnessed as she watched through the apartment door peephole. Her version coincided with Acevado's account.
Lewis was also present during the altercation and described the events. He testified that he and Acevado were behind Phyllis and ahead of defendant on the stairs. At the first landing, Acevado exchanged words with Phyllis who raised her hands in a defensive manner. Defendant ascended the stairs to aid his sister when Acevado, who was the first to strike, kicked defendant down the stairs. Lewis went to his apartment to call 911. When he returned to the stair landing, he saw defendant and Richie kicking Acevado's door, dislodging it from the hinges.
Presenting a different version of the incident, Richie testified on his own behalf. Richie stated he remained in his vehicle after his brother and sister exited the car to enter the apartment building. After approximately ten to fifteen minutes, Richie heard Phyllis calling for his help; she was screaming that "they're jumping P.J." Richie ran into the building.
When Richie entered the building, he noticed pieces of defendant's hair scattered throughout the hallway. Richie saw Acevado standing over defendant, about to strike him with a frying pan, while defendant was in a defensive position on "one knee or both knees." Instinctively, Richie ran toward Acevado to stop him from beating his brother. Richie rammed into Acevado using a "football tackle" technique. He explained: "[you] [p]ut your shoulder in -- under him, pick up and go down. That's what I did and we went right into the door." This occurred in front of Acevado's apartment. The two slammed into the apartment door causing it to fall so that Acevado was on top of the felled door and Richie was on top of Acevado. As the two "were tussling," Acevado attempted to put Richie in a chokehold, but Richie countered the move and put Acevado in a chokehold. Richie let go when "Acevado stopped swinging." Richie got up, joined defendant in the hallway and left the building as the police arrived.
On appeal, defendant's first two challenges relate to the jury instructions. Defendant argues the trial judge failed to discuss in the jury charge: (1) as to count one, the lesser-included offense of fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a); (2) as to count two, the lesser-included offense of mutual fighting, a petty disorderly offense; and (3) an instruction on self-defense and the defense of another, as applied to defendant.
The record on appeal does not include the transcript of the charge conference. R. 1:8-7(b). Based on point three of defendant's appeal, we assume counsel did not object to the proposed charge at this conference, and we note he voiced no objection when the charge was delivered to the jury. Therefore, our review requires application of the stricter "plain error" standard. R. 2:10-2; Das v. Thani, 171 N.J. 518, 525 (2002). Plain error is a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970).
In the jury charge, the trial court recited the elements of second-degree burglary, which include: (1) unauthorized entry; (2) into a structure; (3) with the purpose to commit an offense within. N.J.S.A. 2C:19-2a. The trial judge did not mention criminal trespass, which is a lesser-included offense of burglary. Proof of fourth-degree criminal trespass, N.J.S.A. 2C:18-3a, requires: (1) entry into a structure, (2) without a license or privilege to enter. N.J.S.A. 2C:18-3a.
Lesser-included offenses should be added to jury instructions when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a less kind of culpability suffices to establish its commission. [N.J.S.A. 2C:1-8d.]
Our Supreme Court has held that the public interest in a correct verdict mandates that "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense," even absent a request for the charge. State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)); State v. Denofa, 187 N.J. 24, 41 (2006); State v. Garron, 177 N.J. 147, 180 n.5 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004). Generally, "the jury should resolve the degree of an actor's guilt on the basis of the evidence presented to the jury." State v. Sloane, 111 N.J. 293, 300 (1988).
The jury was presented with two distinct versions of how defendant entered Acevado's apartment. If the State's version was accepted, defendant and Richie kicked in Acevado's door to further assault him, satisfying the elements of burglary. If Richie's version was believed, the hallway fighting spilled into Acevado's apartment following Richie's football tackle of Acevado, which caused the apartment door to unhinge, justifying the presentation of the lesser-included charge of criminal trespass. Since the evidence supported both offenses, criminal trespass should be charged, as well as burglary. State v. Clark, 198 N.J. Super. 219, 226 (App. Div. 1985). The absence of a lesser-included charge on criminal trespass, crucially impacted the jury's deliberation on the nature of defendant's actions and was capable of producing an unjust result. R. 2:10-2; State v. Branch, 182 N.J. 338, 353-54 (2005); State v. Singleton, 290 N.J. Super. 336, 341 (App. Div. 1996).
Similarly, the conflicting versions of the events support a charge of mutual fighting as a lesser-included offense to simple assault. The jury's inability to reach a verdict regarding Richie's guilt strongly suggests it found his testimony, or a portion thereof, credible. Our review of the evidence shows that a mutual fighting charge was appropriate.
We conclude that based upon the trial testimony, the failure of the trial judge to sua sponte provide these lesser offense instructions constituted plain error, requiring reversal of defendant's burglary and simple assault convictions. Accordingly, we need not review the remaining arguments urged by defendant.
Reversed and remanded for a new trial.
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