June 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAYNE STEVENS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-12-2993.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 5, 2008
Before Judges Winkelstein and LeWinn.
Defendant, Wayne Stevens, was indicted along with co-defendant, Donny Reevey, on the following charges: use of a juvenile to commit a first-degree crime (robbery), in violation of N.J.S.A. 2C:24-9(a) (count one); first-degree armed robbery, in violation of N.J.S.A. 2C:15-1 (count two); second-degree burglary, in violation of N.J.S.A. 2C:18-2 (count three); and fourth-degree theft of movable property, in violation of N.J.S.A. 2C:20-3(a) (count four). The indictment also charged defendant individually with third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d) (count five), and fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d) (count six). Co-defendant Reevey was individually charged with third-degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(3) (count seven), and third-degree aggravated assault on a police officer, in violation of N.J.S.A. 2C:12-1(b)(5)(a) (count eight).
Prior to trial, the trial court granted the prosecutor's motion to dismiss counts four, five and six. Following a four-day trial, a jury found defendant and Reevey guilty on all remaining counts.
On September 23, 2005, the court sentenced defendant as follows: count one, twelve years with a six-year period of parole ineligibility; count two, fifteen years with an 85% parole ineligibility period; and count three, ten years with a five-year period of parole ineligibility. All sentences were made concurrent to each other.
Defendant now appeals, raising the following issues:
POINT I THE COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT DEFENDANT COULD HAVE BEEN CONVICTED OF SECOND-DEGREE ROBBERY EVEN IF A CO-DEFENDANT WAS GUILTY OF ARMED ROBBERY. (Not Raised below.)
POINT II THE COURT ERRED IN FINDING THAT [THE VICTIM'S] PRIOR STATEMENTS WERE ADMISSIBLE AS SUBSTANTIVE EVIDENCE
POINT III THE 15-YEAR AGGREGATE TERM IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES
Having reviewed the entire record, we conclude that the trial judge erred in his charge to the jury on accomplice liability. Therefore, we reverse defendant's conviction and sentence on count two of the indictment and remand for further proceedings.
On July 24, 2004, at approximately 4:00 a.m., Gregory Covington was watching television in his apartment. He heard a knock on his door and, when he opened the door slightly, he saw a man wearing a facemask. Covington closed the door and secured the deadbolt lock. As Covington started to walk into his bedroom, he felt someone push him from behind.
Covington testified that he was pushed into his bedroom and onto his knees face-down on his bed. A "white guy" held something to the back of Covington's head and asked him where his money and drugs were. When Covington replied that he had none, his bracelet was removed from his wrist and a cover was placed over his head. Covington testified that he could still see movement in the room, but was not certain how many individuals were present.
A neighbor, Helen Brown, called the police when she observed a man wearing a black mask and dark clothing outside Covington's apartment door. Officer Tiffanie Dill and Detective Wayne Davis arrived shortly thereafter, and Ms. Brown directed them to Covington's apartment.
Dill and Davis observed that the front door of Covington's apartment was broken and standing ajar. The police officers entered and encountered a man with a gray shirt around his head, later identified as Reevey, who tried to slam the door shut when he saw them.
Covington came out of his bedroom at this time and observed the police officers subdue Reevey. Detective Davis then accompanied Covington back into the bedroom while Officer Dill remained with Reevey. In the bedroom, Davis encountered an individual, later identified as defendant, crouching behind a dresser. A third individual was also in the bedroom, later identified as the juvenile, J.H.
Davis ordered defendant and J.H. to the ground, placed them both in handcuffs, and searched them. Davis found a "folding-locking-cliff blade type knife" clipped to defendant's pants pocket, and a "Swiss army-type folding knife" on J.H. Defendant and J.H. were placed under arrest and transported to police headquarters.
J.H. testified that on July 24, 2004, Reevey came to his house at approximately 4:00 a.m.; they walked to another residence and met defendant. Reevey provided J.H. and defendant with "masks and stuff[.]" J.H. had a Swiss army pocket knife in his possession. He observed Reevey give defendant a pocket knife to carry. The three of them then proceeded to Covington's apartment.
J.H. stated that, upon arrival, Covington opened the door and then tried to lock it; Reevey hit the door causing it to splinter. Reevey and defendant pushed Covington into the bedroom, shoved him onto the bed and put a blanket over his head.
Reevey instructed J.H. to "hold" Covington and to threaten to kill him if he moved. J.H. put his closed Swiss army knife against the back of Covington's neck while defendant and Reevey went through Covington's pockets and searched the bedroom.
The police arrived a short time later. J.H. saw Reevey "lunge" at the police officers in the living room, while he and defendant remained in the bedroom. When Detective Davis entered the bedroom, J.H. was on the floor and defendant was hiding behind a dresser.
Defendant testified and denied all of the charges. His explanation of his presence in Covington's apartment was that he had come there to "party" with Covington who is a known drug dealer. Defendant acknowledged he had a knife on his person, but testified that he always carried that particular knife and used it only to cut cocaine.
The judge charged the jury on count two of the indictment, as follows:
In this case the State alleges defendant Donny Reevey and/or Wayne Stevens and/or [J.H.] threatened the use of a deadly weapon and purposely put Gregory Covington in fear of its use to commit death or serious bodily injury in the course of committing a theft. You must determine whether the State has proven beyond a reasonable doubt that the combination of words and conduct or words and gestures by one or more of the assailants created a reasonable belief in the victim to believe one or more of them possessed a deadly weapon capable of causing death or serious bodily injury. . . . .
If you find the State has proven beyond a reasonable doubt that either one or both of the defendants have committed the crime of robbery as I've defined that crime to you, but if you find that the State has not proven beyond a reasonable doubt that the defendant was armed with or threatened immediate use of a deadly weapon, or engaged in conduct or gestures which would lead a reasonable person to believe that the defendant possessed a deadly weapon at the time of the commission of the robbery, then you must find that defendant guilty of robbery.
If you find the State has proven beyond a reasonable doubt that either one or both of the defendants committed the crime of robbery and was armed with a deadly weapon or used or threatened immediate use of a deadly weapon or engaged in conduct or gestures which would lead a reasonable person to believe that a defendant possessed a deadly weapon at the time of the commission of the robbery, then you must find the defendant guilty of armed robbery.
Now, the State alleges as an alternative that if you find that either one or both of the defendants was not guilty of either armed robbery or robbery, that they may have been an accomplice to the other or to [J.H.] in the crime's commission. 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 an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he (a) solicits such other person to commit it, and/or (b) aids or agrees or attempts to aid such other person in the planning or committing of it.
This provision of the law means 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 as if he committed the crime himself.
In this case, the State alleges as an alternative the defendants are guilty of the crime committed by [J.H.] because they acted as his accomplice. As another alternative, it's alleged that either one may have acted as an accomplice to the other, i.e., Reevey and/or Stevens acted as an accomplice to [J.H.] or Reevey acted as Stevens's accomplice or Stevens acted as Reevey's accomplice.
In order for you to find the defendants guilty, the State must prove beyond a reasonable doubt each of the following elements.
One, that Reevey and/or Stevens was an accomplice to [J.H.] who committed the substantive offense, or that Reevey was the accomplice of Stevens or vice versa.
Two, that either one or both of the defendants solicited [J.H.] or the other to commit the crime of armed robbery or robbery, and/or did aid or agree to attempt to aid in the planning or commission of it.
Three, that these defendants, Reevey's and/or Stevens's purpose was to promote or facilitate the commission of the offense.
And, four, that these defendants, Reevey and/or Stevens, possessed the criminal state of mind that is required to be proved against the person who actually committed the crime or act. . . . . If you find the defendants Reevey and/or Stevens, with the purpose of promoting or facilitating the commission of the offenses of either armed robbery or robbery, solicited the other or [J.H.] to commit the act and/or aid him or agreed or attempted to aid him or them in the planning or committing of it, then you should consider him as if he committed the crime himself. . . . .
In order to convict the defendant as an accomplice to the crimes charged, you must find the defendant had the purpose to participate in those particular crimes. He or she must act with purpose o[f] promoting or facilitating the commission of the substantive crimes with which he's charged.
It is not sufficient to prove only that the defendant had knowledge that another person is 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 sum, in order to find a defendant guilty of committing the crimes of accomplice to either armed robbery or robbery, the State must prove each of the following elements beyond a reasonable doubt.
That one or more of the co-defendants committed the crimes of armed robbery or robbery, or that a particular defendant's purpose was to promote and facilitate the commission of the offenses.
That this particular defendant solicited him to commit them and/or did aid or agree or attempt to aid him in planning or committing it or the crimes.
That a particular defendant possessed a criminal state of mind that is required to be proved against the person who actually committed the criminal act. You are to consider the accomplice status separately as to each of the charges.
If you find the State has proven each and every one of the elements that I've explained to you beyond a reasonable doubt, then you must find the defendant guilty. On the other hand if you find the State has failed to prove one or more of these elements beyond a reasonable doubt, then you must find the defendant not guilty.
Defendant's argument as to the jury charge on accomplice liability is raised as plain error. As such, defendant must demonstrate "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
We find that defendant has met this standard in his challenge to this aspect of the jury charge. The jury was instructed that it could find defendant guilty either of armed robbery or of the lesser-included offense of robbery. In State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993), we expressly held that "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.'" (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). The trial judge failed to meet that obligation here.
As our Supreme Court has long recognized:
If 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)(emphasis added).]
Those considerations led us to recommend specific revisions to the Model Criminal Jury Charge relating to accomplice liability, because that charge, as then drafted, did not "adequately explain that the jury may find an accomplice guilty of a different degree offense than the principal if the accomplice has a different intent." Bielkiewicz, supra, 267 N.J. Super. at 531-32, n.2. Therefore, we "suggest[ed] that the Model Criminal Jury Charges relating to accomplice liability be revised to address the principles as set forth" in Bielkiewicz, as well as in Fair and Weeks. Ibid.
The trial judge did instruct the jury that, to find defendant guilty as an accomplice, it must find that he "possessed a criminal state of mind that is required to be proved against the person who actually committed the crime or act." However, the Model Criminal Jury Charge on accomplice liability, as revised subsequent to our decision in Bielkiewicz, supra, sets forth the following language, most of which the judge did not include in his jury charge:
This provision of the law [accomplice liability] 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. Now this responsibility as an accomplice may be equal and the same as he/she who actually committed the crime or there may be responsibility in a different degree depending on the circumstances as you may find them to be. . . . . . . .
Remember that this defendant can be held to be an accomplice with equal responsibility only if you find as a fact that he/she possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act. . . . .
Now, as I have previously indicated, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice of [co-defendants] with full and equal responsibility for the specific crime charged. If you find the defendant guilty of the specific charge, then you need not consider any lesser charge.
If, however, you find the defendant not guilty of acting as an accomplice of [co-defendants] on the specific crime charged, then you should consider whether the defendant did act as an accomplice of [co-defendants] but with the purpose of promoting or facilitating the commission of some lesser offense than the actual crime charged in the indictment.
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 on his/her own state of mind and not on anyone else's.
Guided by these legal principles, and if you have found the defendant not guilty of the specific crime charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of________________. I will now explain the elements of that offense to you. . . .
In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his/her own state of mind and no one else's. [Model Jury Charge (Criminal), "Liability for Another's Conduct, Charge # Two" (1995) (emphasis added).]
We have, on several occasions, found plain error in a trial court's failure to instruct the jury properly on accomplice liability when charging it on lesser-included offenses where, as here, the evidence presented "a rational basis for a jury to reject the greater charge and a clear basis . . . for a conviction on the lesser." State v. Franklin, 377 N.J. Super. 48, 56 (App. Div. 2005). See also State v. Phillips, 322 N.J. Super. 429, 442-43 (App. Div. 1999) (plain error to fail to instruct the jury that defendant could be convicted "as an accomplice of a lesser-included offense, even though the principal is found guilty of a more serious crime."); State v. Jackmon, 305 N.J. Super. 274, 288 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998) (trial judge committed plain error in using "almost the exact charge as was used in Bielkiewicz . . . [which] language simply is not sufficient."); State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996) (defendant's conviction for purposeful and knowing murder reversed because "the accomplice liability instruction . . . was inadequate to guide the jury in the course its deliberations should take regarding the murder charge. As such, it was capable of producing an unjust result.").
By contrast, where the evidence cannot support a finding that an accomplice did not share the principal's state of mind, failure to give a proper accomplice charge will not be found to be plain error. For example, in State v. Rue, 296 N.J. Super. 108 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997), defendant was charged as a participant in a fatal beating of the victim; his defense was that he remained in the car and did not participate in the crime. We concluded: "Neither of those versions warranted a Bielkiewicz charge, the former because defendant's culpability was as a principal; the latter because defendant was not guilty of a crime at all." Id. at 115. To that same effect, see State v. Oliver, 316 N.J. Super. 592, 597 (App. Div. 1998), aff'd 162 N.J. 580 (2000)(where "there was no evidence presented that the principal may have acted with a different purpose than the accomplice" because the latter's defense was a complete denial of participation in the crime, failure to give complete accomplice charge was harmless error.) See also, State v. Williams, 298 N.J. Super. 430 (App. Div.), certif. denied, 150 N.J. 27 (1997), in which defendant was indicted for murder but convicted of the lesser-included offense of aggravated manslaughter. We found the failure to give a proper accomplice charge harmless: "[I]f defendant had been found guilty of murder, we would be constrained to reverse his conviction. However, because defendant was only found guilty of the lesser included offense of aggravated manslaughter, we conclude that the inadequacy of the jury's instructions regarding accomplice liability constituted harmless error." Id. at 440-41.
The failure to give a proper accomplice liability charge in this case was particularly prejudicial to defendant in light of the evidence. Although J.H. testified that defendant had a knife in his possession, there was no evidence that defendant ever withdrew that knife from his pants pocket at any time during the events in Covington's apartment. Defendant acknowledged possession of that knife but testified he only used it to cut cocaine. Detective Davis testified that, upon encountering defendant hiding behind the bedroom dresser, he searched defendant and found a knife hooked to his pants pocket.
"This is not, then, a scenario in which only one mental state on the part of defendant was possible or in which the jury could have only concluded that defendant acted as a principal." Jackmon, supra, 305 N.J. Super. at 295. Therefore, "we are convinced the circumstances here are closer" to Bielkiewicz, Cook, and Jackmon, than to Rue, Oliver or Williams. Ibid.
"In addition to requiring trial courts to instruct juries that an accomplice can have a different mental state from that of the principal, our courts regularly have noted the importance of tailoring the jury charge to the facts of the case." State v. Savage, 172 N.J. 374, 389 (2002). Given the "facts of the case" here, a properly instructed jury may well have found "a rational basis . . . to reject the greater charge and a clear basis . . . for a conviction on the lesser." Franklin, supra, 377 N.J. Super. at 56.
Because we are remanding this matter for further proceedings, we briefly address defendant's argument regarding the admission of Covington's prior statements. We find this issue to be without merit. The trial judge conducted a hearing on the admissibility of those statements, pursuant to State v. Gross, 121 N.J. 18 (1990). We conclude that the judge accurately analyzed the so-called "Gross factors," id. at 30, and properly applied them to the facts of this case. R. 2:11-3(e)(2).
Our decision renders moot defendant's argument that his sentence was excessive.*fn1
We reverse and remand defendant's conviction and sentence on count two of the indictment. In all other respects we affirm his judgment of conviction and sentence.
As the only error relates to the jury instruction regarding the state or mind required for defendant to be found guilty of first-degree robbery, on remand the State may consider whether to waive re-trial and request entry of judgment and resentencing on second-degree robbery. See State v. Mann, 244 N.J. Super. 622, 629 (App. Div. 1990) (conviction for third-degree theft reversed and remanded for a new trial "unless the State elects to request entry of judgment and resentencing . . . as a fourth-degree offense"); State v. Alexander, 215 N.J. Super. 523, 531 (App. Div. 1987) (Defendant is "entitled to a new trial . . . unless the State elects to request entry of judgment on the lesser included offense in lieu of retrial.").