On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 04-08-1135.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges A. A. Rodríguez, C. S. Fisher and C. L. Miniman.
Following a jury trial, defendant Donte R. Crumidy was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5- 2; and fourth-degree false incrimination of Robert A. Arthur in the commission of a crime, N.J.S.A. 2C:28-4a.*fn1 The judge imposed concurrent terms aggregating twelve years with a NERA*fn2 parole disqualifier and a five-year period of parole supervision.
We now reverse the convictions for armed robbery and conspiracy because we agree with defendant that: (1) the jury instructions regarding accomplice liability were substantially flawed; and (2) the failure to give a Hampton/Kociolek*fn3 charge deprived defendant of a fair trial. The conviction for false incrimination is affirmed.
This is a summary of the proofs presented by the State. On Friday, June 11, 2004, Brian Bowman and his girlfriend Tiffany Johnson attended a high school prom. Afterwards, they decided to rent a room at the La Mirage Motel in South Brunswick. Around 4:00 a.m., they arrived at the motel and parked their vehicle. Johnson remained in the vehicle while Bowman went inside to inquire about renting a room. Bowman was told to return in one hour to see if there was a vacancy. Bowman waited in the motel lobby for approximately twenty minutes, when he noticed a man walk inside the lobby. The man then walked outside and immediately returned. Bowman overheard the man ask the clerk how much it would cost to rent a room for the night.
Bowman left the motel lobby to return to his vehicle. As he did so, the man followed closely behind him and stopped next to the driver's side door of his vehicle. The man instructed Bowman to "give it up." At that point, Bowman noticed another man standing in front of his vehicle. That second man lifted up his shirt and exposed the handle of a handgun. Bowman immediately handed over $125 from his wallet.
After Bowman handed over the money, the man told him that he was going to get into Bowman's vehicle. The man said that his cohort would be following them in another vehicle. At this point, Bowman took off running into the motel lobby and instructed the clerk to call the police.
Johnson had intermittently dozed off while waiting in Bowman's car. At one point, however, she noticed a man wearing a black hat, white shirt and jeans walking in and out of the motel lobby. During one of his trips into the parking lot, Johnson noticed the man peering through the window of Bowman's vehicle. When she awoke and saw Bowman running into the motel, she immediately locked the car doors. The two men ran to their getaway car and sped off. Johnson then ran into the motel lobby. From the lobby window, Bowman observed the two men get into a light blue car and was able to record the vehicle's license plate number, which he later gave to police.
At approximately 6:30 a.m., South Brunswick Police Detective John Klemas responded to the motel to investigate the incident. Klemas spoke with Bowman, Johnson, and the motel clerk. The motel clerk, Ahmad Kahn, informed Klemas that the motel was outfitted with security surveillance cameras in the lobby, but not in the parking lot. The surveillance tape revealed a man in the motel lobby wearing a white shirt and a black hat. Bowman and Johnson told Klemas that the man in the videotape was the person who had accosted Bowman and approached the vehicle where Johnson had been sleeping. However, at trial, neither Bowman nor Johnson was able to positively identify defendant as the man who accosted them that night or as the man shown on the motel video surveillance camera.
Bowman and Johnson were taken to the police station to give taped statements. Klemas ran the license place number given to him by Bowman. The car was registered to Dilicia Lester-Harris of Edison Township. The police quickly acted on this information and went to the registration address, but discovered she had moved. Several days later, Klemas learned that Lester-Harris worked at a local elementary school in Plainfield.
Klemas, along with his partner, Detective James Ryan, went to the school to interview Lester-Harris. She told the detectives that she had loaned her car to her friend, Robert Arthur, for the weekend. She further stated that she had known this man for "roughly one year" and had always known him by that name. However, police later learned that this man was the defendant.
Lester-Harris placed a telephone call to defendant. Detective Ryan inquired about his whereabouts on the night of the robbery. Defendant told Ryan that Lester-Harris's car had mechanical problems and that he was in Philadelphia and would be stranded there for a couple of days.
After several days had passed without Lester-Harris producing her car, the police filed a criminal complaint against her for obstructing an investigation. Klemas then learned through his investigation that Lester-Harris was staying at an apartment on Jones Drive in South Brunswick. Klemas and Ryan went to this address. Nobody answered the door, however, a child told the detectives that Lester-Harris and another man ran out of the apartment when the police arrived. The child directed the detectives to another apartment on the same street. After repeated failed attempts to encourage Lester-Harris and defendant to come downstairs on their own accord, the detectives entered the apartment and placed both individuals under arrest.
At police headquarters, Klemas and Ryan gave defendant his Miranda warnings. He acknowledged receiving them. Ryan told defendant that he was investigating an incident reported at a motel. Defendant stated, "you mean La Mirage?" Defendant admitted that he was at the motel that night to inquire about renting a room, but denied participating in the robbery or seeing any illegal activity. Defendant said that, while walking to his own car, he noticed money lying on the ground near Bowman's car and picked it up. According to defendant, he was wearing a white shirt and black hat that night. Defendant, however, declined to give a taped statement to the detectives.
The police were never able to identify defendant's accomplice. Defendant did not testify, nor did he present any witnesses.
Before the start of trial, defendant sent a letter to the judge stating that he wished to dismiss Assistant Deputy Public Defender Robert B. White, III and proceed pro se. Defendant renewed this request prior to jury selection. During pretrial discussions, defendant expressed dissatisfaction with White's representation and insisted that he did not want assigned counsel representing his interests at trial. Defendant said, "You all should know I am not competent to represent myself, but I don't want him representing me." Defendant repeated throughout the trial, in no ...