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State v. Crumidy


July 9, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. 04-08-1135.

Per curiam.


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 uncertain terms, that he did not want White representing him. When the judge indicated that White could act as standby counsel, defendant stated:

"I don't want him. Assisted, nothing. Far away from my case as possible Mr. Robert White. Thank you. That's all I have to say. Do what you want."

The Assistant Prosecutor correctly interpreted these words to implicate the self-representation principles set forth in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975), and requested that the judge conduct a voir dire of defendant. The judge asked defendant a series of questions, including whether he understood the charges against him; his sentencing exposure on each count; his right to have the jury consider lesser-included offenses; and the fact that there are rules of evidence that govern courtroom procedure. At the conclusion of the questioning, the judge ruled that defendant would not make a very effective advocate for himself and did not want him to be prejudiced by proceeding pro se.

The following day, before conducting jury voir dire, White reiterated to the judge that defendant's position had not changed. Defendant had reservations about representing himself, but in the end, expressed an unwavering desire to proceed pro se rather than being represented by White.

The judge again placed defendant under oath to discuss the matter further. Defendant told the judge that although he knew he was "not literate enough in the law system to know to represent myself," he adamantly opposed any continued representation by White. At that point, the judge acknowledged that "[defendant] has made a decision that he would prefer to represent himself . . . ." The judge ruled:

I think I know [defendant's] position. But I think I have the authority to, in the sense that I control the, not who is assigned to represent defendants but whether they are represented. I think I have the authority to continue with [defense counsel's] representation, despite defendant's position. If I thought that [defense counsel] was not being honest or if I thought that [defense counsel] didn't know his stuff, that is a different story. But I don't think that. [Defendant] may have a particular view about things that [defense counsel] should have done or should not have done. That's between the two of them. But I don't think I'm bound by the subjective view of any defendant. I don't assign counsel and I know what the position of the Public Defender's Office is. If a defendant does not like his particular lawyer it never happens that that lawyer is replaced so I want [defense counsel] to continue and I want to say this too. [Defendant] is bright. He speaks very well. He communicates clearly. But he doesn't have, with all due respect to him, the capacity to represent himself in a serious case or even a trivial case. He can do it but it's not going to be in his best interests.

During the initial charge, the judge instructed the jury on the elements of armed robbery and robbery, explaining that "one is where the robber is armed with or uses or they threaten the immediate use of a deadly weapon. The other where the robber is not armed with or does not use or does not threaten the immediate use of a deadly weapon." The judge further instructed the jury on the conspiracy charge, stating that in order for defendant to be found guilty, "when he agreed to act it was with a conscious object or purpose to promote or make it easier to commit a robbery."

Soon after starting their deliberations, the jury asked the following question:

[I]f a person is present at the scene and conspired to commit armed robbery but did not actively participate in the robbery are they part of the robbery?

The judge responded that the answer to this question required him to charge the jury on accomplice liability, but noted that the jury did not ask for further clarification on the robbery charge. The judge reiterated that the State alleged that defendant was "legally responsible for the criminal conduct of [another] person in violation of the . . . law . . . ." The judge went on to say that, under the State's theory, defendant and his unidentified accomplice were "equally guilty," but noted that "responsibility as an accomplice may be equal or it may be different." At the end of his instruction, the judge reinforced that "[a] person is an accomplice with equal responsibility only if you find as a fact that he possessed the criminal state of mind required to be proved against the person who actually committed the criminal acts." After further deliberations, the jury returned guilty verdicts.

During closing arguments, the Assistant Prosecutor argued that it was defendant, rather than the police, who first mentioned the La Mirage Motel, and that it was defendant who placed himself at the scene of the robbery.

On appeal, defendant contends that:


We agree with this contention and, therefore, reverse the conviction and remand for a new trial.

Defendant argues that the judge committed error by: (1) failing to properly instruct the jury regarding the distinction between first-degree and second-degree robbery; and (2) giving an accomplice liability instruction that did not impart the principles announced in State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), which provides that an accomplice can be convicted of a lesser-included (second-degree robbery) even if the principal committed a more serious offense (first-degree robbery).

Because defendant failed to object to the jury charge at trial, this contention must be judged against the plain error standard. R. 2:10-2. Thus, we will reverse only if we find the alleged error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Jordan, 147 N.J. 409, 422 (1997).

In analyzing whether a jury charge was erroneous, due consideration must be given to the language of the charge as a whole. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Thompson, 59 N.J. 396, 411 (1971).

In Bielkiewicz, we reiterated the well-established principle that "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." Bielkiewicz, supra, 267 N.J. Super. at 527 (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)). In the context of accomplice liability, a proper jury instruction must convey the idea that a defendant can be found guilty as an accomplice of a lesser-included offense even though the principal is found guilty of a more serious offense. State v. Norman, 151 N.J. 5, 37 (1997); State v. Fair, 45 N.J. 77, 95 (1965). In Fair, the New Jersey Supreme Court stated:

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. [Fair, supra, 45 N.J. at 95.]

Thus, the trial court has an obligation to "carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense." State v. Savage, 172 N.J. 374, 388 (2002) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).

Here, the judge's charge on accomplice liability failed to inform the jury what the consequences would be if they found that the defendant had a different level of criminal liability than his unidentified accomplice. The judge also failed to explain to the jury (in response to their question), the differences between the elements of armed robbery and robbery, in the context of accomplice liability. In fact, the judge's statement that an accomplice's liability can be equal or it may be different is completely ambiguous. Specifically, the jury received no instructions about what they would need to deduce from the facts that would lead them to believe that differing culpable mental states were present when the crime was committed. Furthermore, nowhere in the accomplice charge are the differences between first- and second-degree robbery mentioned. See State v. Franklin, 377 N.J. Super. 48, 55-56 (2005) (holding that "not adequately explain[ing] to the jury how it might go about finding an accomplice guilty of a different offense or degree of offense than the principal" amounts to plain error).

Defendant correctly points out that a properly charged jury would have understood that, even if they were convinced he actively participated in the robbery, failure to find that he shared the intent to commit armed robbery should have led to a conviction for the lesser included offense. Therefore, a reversal of the armed robbery conviction is warranted.

Defendant also contends:


We agree.

Defendant argues that the trial judge committed reversible error by failing to instruct the jury to disregard defendant's out-of-court statement that the incident occurred at the La Mirage Motel if it found the statement not to be credible."

Defendant also argues that the judge erred by failing to give the cautionary instruction concerning oral statements as required by State v. Jordan*fn4 and State v. Kociolek. These contentions are raised as plain error. Defendant did not request, and the trial court did not give, a Hampton or Kociolek charge. This charge instructs the jury on how to properly weigh the credibility of a post-Miranda oral statement given by a defendant.

It is well-established that criminal defendants are entitled to an instruction that jurors use caution when determining the credibility of out-of-court statements. Kociolek, supra, 23 N.J. at 421. "Further, when the prosecution seeks to introduce a statement made by a criminal defendant, and the trial judge is required to determine the admissibility of that statement, the judge must instruct the jury to disregard the statement if it finds it is not credible." State v. Harris, 156 N.J. 122, 182-83 (1998) (citing Hampton, supra, 61 N.J. at 271-72), cert. denied, 532 U.S. 1057, 121 S.Ct. 2204, 149 L. Ed. 2d 1034 (2001).

"[A] defendant need not request [the Hampton or Kociolek] instructions in order to preserve the right to them." Harris, supra, 156 N.J. at 183. In Jordan, the Court held that these cautionary instructions should be given whether requested by defense counsel or not. Jordan, supra, 147 N.J. at 425-28. The Court cautioned, however, that failure to give a Kociolek charge "is not reversible error per se." Id. at 428. Rather, reversal is only warranted when failure to give a Kociolek charge is "clearly capable of producing an unjust result." R. 2:10-2.

Here, the judge's charge properly instructed the jury on how to make general credibility determinations. The charge did not, however, properly apprise the jurors that "[o]ral statements should be viewed with caution because of the 'generally recognized risk of inaccuracy and error in communication and recollection of verbal [utterances] and misconstruction by the hearer.'" Jordan, supra, 147 N.J. at 428 (quoting Kociolek, supra, 23 N.J. at 421). "Ultimately, whether the failure to give a Kociolek charge is capable of producing an unjust result will depend on the facts of each case." Jordan, supra, 147 N.J. at 428.

Here, the omission of the Kociolek and Hampton charges, in the context of the State's entire case against defendant, amounted to harmful error. We note that none of the eyewitnesses were able to positively identify defendant as the assailant. Although Lester-Harris, testifying as a State witness, confirmed that defendant had possession of her vehicle on the night that Bowman reportedly saw it fleeing the parking lot of the La Mirage Motel after the robbery, there was no evidence presented directly tying defendant to the crime. As such, defendant's own admission to Klemas, that he was present at the La Mirage Motel on the night of the robbery and that he possessed knowledge of the criminal event being investigated by police, was a key item of proof in the State's case. However, as discussed above, such evidence was admissible only with the omitted cautionary instruction. Thus a reversal is warranted.

Defendant also contends:


We disagree.

The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution, both guarantee that a criminal defendant has the right to counsel at trial. In Faretta, the United States Supreme Court held that the Sixth Amendment, applicable to the states via the Fourteenth Amendment, provides that a criminal defendant can proceed without the assistance of counsel provided that he knowingly and intelligently chooses to do so. Faretta, supra, 422 U.S. at 818, 95 S.Ct. at 2532, 45 L.Ed. 2d at 572. Implicit in this right, however, is the corollary that a criminal defendant can "dispense with a lawyer's help." Id. at 813, 95 S.Ct. at 2530, 45 L.Ed. 2d at 570. In short, the right of self-representation may not be denied where defendant's desire, understanding and ability to do so are clear. State v. Thomas, 362 N.J. Super. 229, 243 (App. Div.), certif. denied, 178 N.J. 249 (2003); State v. Crisafi, 128 N.J. 499, 512-14 (1992).

In Crisafi, 128 N.J. at 511-12, the New Jersey Supreme Court created a workable framework within which a trial court could determine whether a criminal defendant's application to proceed pro se was knowing and intelligent: (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that a lack of knowledge of the law may impair their ability to defend themselves; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it may be unwise not to accept the assistance of counsel.

Subsequently, in State v. Reddish, 181 N.J. 553, 594-95 (2004), the Court added the following inquiry to the pre-existing requirements:

(1) the discussions should be open-ended for defendants to express their understanding in their own words; (2) defendants should be informed that if they proceed pro se, they will be unable to claim they were provided ineffective assistance of counsel; and (3) defendants should be advised of the effect that self-representation may have on the right to remain silent and the privilege against self-incrimination.

Here, from our review of the record, we conclude that the judge was correct in denying defendant's pro se application. Although defendant was dissatisfied with counsel, he was not capable of representing himself. However, because there will be a new trial on the most serious charge, the issue may be revisited if defendant chooses to represent himself again.

Finally, defendant contends:


The State concedes this point. However, given our reversal of the conviction, the issue of merger must abide the new trial on armed robbery.

The armed robbery and conspiracy convictions are reversed and the matter is remanded for a new trial. The conviction and sentence for false incrimination is affirmed. The matter is remanded to the trial court for entry of an amended judgment reflecting that the fourth-degree conviction is for false incrimination, contrary to N.J.S.A. 2C:28-4a.

Affirmed in part and reversed in part.

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