On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-07-0677.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, S.L. Reisner and Baxter.
Tried by a jury along with co-defendants Kenton Rodney and Deon Ellis, defendant Christopher Hall was found guilty of first-degree robbery, N.J.S.A. 2C:15-1 and 2C:2-6 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four). Defendant's conviction on count three was merged with that for armed robbery for which he was sentenced to an extended term of fifty-five years, N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:43-7(c), subject to an 85% parole bar. On count four, defendant was sentenced to a consecutive term of five years subject to a twoand-one-half year period of parole ineligibility, for an aggregate sentence of sixty years, with a 49.25 year period of parole ineligibility. Defendant appeals. We remand for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and State v. Thomas, 188 N.J. 137 (2006), vacate the consecutive nature of the sentence on count four, and affirm the judgment of conviction in all other respects.
According to the State's proofs at trial, Michael Messina, an admitted drug dealer previously convicted of robbery and drug possession, while driving in Paterson on March 15, 2003 at around 3:00 a.m., observed two women, Dawn Smith and Ebony Morris, standing on the sidewalk near Auburn Street. He thought Dawn was a woman he knew as "Stay High," who was actually Dawn's sister. When he got closer, however, he realized he was mistaken but nevertheless stopped to talk to the women, hoping to have sexual relations. Ebony declined because she had a boyfriend, but Dawn indicated an interest even though she had a boyfriend, who happened to be defendant, the father of her child. Messina offered them a ride to the store where they were headed, and then to their home, and they accepted.
On the way home, Messina received a call from a customer who wanted to purchase marijuana. Messina took a quick detour to meet him, removed some drugs from his console and sold his customer the marijuana from his car, witnessed by both Ebony and Dawn. After completing the transaction, Messina drove the women home but first obtained Dawn's phone number and made plans to get together the next day.
As Dawn entered her apartment with Ebony, she met Rodney, Ellis, defendant, her sister "Stay High", and another female, who were all inside. According to Dawn, when Rodney overheard her discussing Messina's money and large drug stash, he devised a plan whereby Dawn would go to Messina's house and keep him occupied while taking a shower, at which time Ebony would open the door for Rodney and Ellis. As Rodney explained his plan, defendant resisted and even left the apartment, while Ellis sat quietly and nodded his head.
The next morning, Messina returned Dawn's numerous calls and arranged to meet her later at her house. As Messina arrived around 1:30 p.m. and waited for Dawn to come out, he noticed three black men staring at him as they walked past his vehicle. After they entered Dawn's building, Dawn and Ebony appeared. Messina was surprised to see Ebony, but Dawn assured him Ebony would just sit in the living room watching television and smoking marijuana.
When they arrived at Messina's home, which was about two miles from where Dawn lived, he brought the drugs from his car inside, locked the door behind him and immediately went upstairs to put the drugs in a dresser drawer in his bedroom. When he came back downstairs, Dawn asked to use the telephone and, unbeknownst to Messina, called Ellis to give him Messina's address. In the meantime, Messina gave Ebony a bag of marijuana. When Dawn finished her telephone conversation, she and Messina took a shower together in the first floor bathroom. While they were in the shower, Ebony knocked on the door and told Messina that his cell phone was ringing. Messina answered the call, which was from a preferred customer wishing to purchase marijuana. Messina agreed. He and Dawn exited the shower, got dressed, and all three left together.
Once outside, Messina noticed the same three men walking down his street whom he had seen earlier in front of Dawn's building. When he asked Dawn if she knew them, she responded no. Thinking it merely coincidental, Messina proceeded with the two women to the customer's house where he exited his car with five bags of marijuana, and completed the transaction. The trio returned to his house.
Upon arrival, Messina followed the same routine of bringing all of his drugs into his house, locking the door behind him, and hiding the drugs in his bedroom. Messina and Dawn again entered the shower and were again interrupted by Ebony who this time told them she was going outside to smoke a cigarette. Almost immediately thereafter, Ellis "ripped the shower curtain down" holding a firearm. Messina recognized the man to be one of the three men he first saw in front of Dawn's building, and then again in front of his house. Dawn immediately got out of the shower, grabbed her clothes, and left the bathroom without any resistance from Ellis. Ellis then demanded Messina's money and drugs, but Messina said that he did not have either. Ellis persisted, however, and ordered Messina out of the shower.
Messina was forced to lie down naked on his living room floor where he noticed a second man, defendant, wearing what he believed to be a bandana over his face. Based on the man's build and facial features not covered by the mask, Messina believed defendant was also one of the men he had seen previously. Defendant restrained Messina with a cord from his vacuum cleaner and Messina's belt, and assured him that once Messina gave them the drugs and money, they would leave.
In an attempt to isolate defendant, who appeared to be unarmed, Messina told the men that the drugs were outside in the car. Once alone, it was Messina's plan to restrain defendant. However, it was defendant who checked the vehicle, leaving Ellis, who was armed, behind. At this point, Dawn entered the kitchen, and signaled to Ellis that the drugs were upstairs. Ellis then returned to Messina, placed the gun against his head, and angrily told him to stop playing around because he knew the drugs were upstairs.
Messina finally told Ellis exactly where the drugs were located because, at that point, "it was getting serious[,]" and he was also worried that his mother would arrive home. Together, defendant and Dawn went to Messina's bedroom, while Ellis remained with Messina holding the gun to his head. Shortly thereafter, defendant descended the stairs holding the drugs.
At this point, the doorbell rang and the door began to open. Ellis turned and fired the gun without warning, shooting Ebony as she was reentering the house. Ellis and defendant ran out the front door, while Dawn stayed behind. Messina untied himself, wrapped a coat around his waist, ran outside, and saw Ellis sprinting away, with Rodney, the third man he had seen earlier in the day, lightly jogging down the block.
When Messina went back into the house, he found Ebony lying on the ground motionless with the gun next to her. Dawn was yelling frantically for Messina to help Ebony. Messina went upstairs to get dressed. When he returned, the gun had disappeared. Dawn had thrown it out the bathroom window for fear Ellis would return and kill her to cover up his crime. Messina called 9-1-1.
Ebony died of a bullet wound to the face. When police arrived, they questioned Dawn and Messina separately. At first, Dawn portrayed herself as a victim, explaining that she was in the shower with Messina when two black males entered the home, forced them out of the shower, robbed them, and shot Ebony in the process. Messina then also informed the officers that the firearm had disappeared from the living room floor when he went upstairs to get dressed. Later, Detective Rafael Fermin, while walking around the perimeter of the house, discovered the firearm lying right outside the bathroom.
At the police station, Dawn admitted her role in the robbery. She and Messina identified defendant and the two co-defendants through photographs, and both gave formal statements.
During the course of the ongoing investigation, the police received information that on May 2, defendant would be traveling by bus to the Port Authority in New York under the name Tesfiete Planno. After police confirmed this information with Greyhound, they proceeded to the bus terminal where they observed defendant exit the bus, looking basically the same, with the exception of highlighted hair. At first, defendant denied that he was Christopher Hall. However, when the police showed defendant a wanted poster with his picture, he replied "you got me." Defendant was read his Miranda rights, and placed under arrest. During the subsequent interview, defendant denied any involvement in the robbery explaining that he, Dawn and Messina were just hanging out at Messina's house when Ebony decided to go to the liquor store. When she returned, defendant heard a shot fired and saw Ebony lying on the floor. Scared, defendant ran to his mother's house.
Evidently crediting the State's version, the jury found defendant guilty of armed robbery and the related weapons offenses.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING ACCOMPLICE LIABILITY AND THE NEED TO DETERMINE THE DEFENDANT'S CRIMINAL CULPABILITY WITH RESPECT TO DIFFERENT DEGREES OF ROBBERY. (NOT RAISED BELOW)
II. THE TRIAL COURT ERRED BY FAILING TO SUBSTITUTE AN ALTERNATIVE JUROR DURING JURY DELIBERATIONS, INSTEAD PERMITTING A JUROR TO CONTINUE DELIBERATIONS DESPITE INDICATIONS HE WAS UNABLE TO EFFECTIVELY CONTINUE TO DO SO DUE TO HIS MEDICAL CONDITION. (NOT RAISED BELOW)
III. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF INADMISSIBLE HEARSAY WHICH SIGNIFICANTLY PREJUDICED THE DEFENSE BY CHARACTERIZING THE DEFENDANT AS HAVING FORMULATED THE PLAN TO ROB THE VICTIM. (NOT RAISED BELOW)
IV. THE TRIAL COURT ABUSED ITS DISCRETION BY REQUIRING THAT THE SENTENCE IMPOSED ON COUNT IV BE CONSECUTIVE RATHER THAN CONCURRENT TO THE SENTENCE IMPOSED ON COUNT II.
V. THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. THOMAS AND STATE
We address these issues in the order raised.
Even though he did not object below, defendant now faults the court's jury charge on accomplice liability because it failed to adequately instruct that an accomplice may be found guilty of a lesser crime than the principal. We disagree. The court's charge was not error, much less plain error. R. 1:7-2; State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008).
The State's case against defendant was founded on a theory of accomplice liability. "When a prosecution is based on the theory that a defendant acted as an accomplice, the trial court is required to provide the jury with understandable instructions regarding accomplice liability." State v. Savage, 172 N.J. 374, 388 (2002). The Savage Court explained,
By definition an accomplice must be 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. 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. [Ibid. (internal citations and quotes and citations omitted).]
By the same token, "when lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart to the jury the distinctions between the specific intent required for the grades of the offense.'" Ibid. (alteration in original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). In other words,
[i]f both parties enter into the commission of a crime with the same intent and purpose each is guilty to the same degree; but each may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind. [State v. Fair, 45 N.J. 77, 95 (1965).]
See also State v. Oliver, 316 N.J. Super. 592, 596-97 (App. Div. 1998) ("The judge must also instruct the jury that it could find the accomplice guilty of a lesser offense than the principal."), aff'd, 162 N.J. 580 (2000).
Defendant does not challenge the court's definition of accomplice liability. Instead, as noted, he argues the court did not adequately instruct that an accomplice may be guilty of a lesser offense than that of the principal. Such a claim, however, may not be viewed in isolation, but must be considered against the whole of the jury charge to determine its overall effect. State v. Wilbely, 63 N.J. 420, 422 (1973).
Here, the judge expressly informed that the culpability of an accomplice depends on his individual state of mind:
As I explained earlier . . . our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent upon his own state of mind and not anyone else's.
The judge reiterated this concept of the differing degrees of culpability based on differing mental states when he referenced a hypothetical he gave earlier in his instructions concerning a handyman working in someone's home who ...