July 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANEESHA SCOTT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, 06-02-0091-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 1, 2008
Before Judges Skillman and Winkelstein.
Defendant, Aneesha Scott, and her co-defendant, Nathaniel Tucker, were indicted in Union County, Indictment No. 06-02-0091, with two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two); and possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). Following a trial in August 2006, the jury was unable to reach a verdict as to Tucker, but convicted defendant of the robbery counts and acquitted her on the weapons charge. The trial judge imposed two concurrent twelve-year prison terms with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following legal arguments for our consideration:
THE TRIAL JUDGE'S WOEFULLY INSUFFICIENT AND CONFUSING CHARGE ON ACCOMPLICE LIABILITY WAS AWKWARDLY SEPARATED FROM THE ROBBERY CHARGE, CONCENTRATED EXCLUSIVELY ON THEFT AS THE ONLY POSSIBLE LESSER INCLUDED OFFENSE, AND WAS INSUFFICIENTLY TAILORED TO THE FACTS OF THE CASE. THE INSTRUCTION PRECLUDED THE JURY FROM CONSIDERING SECOND DEGREE ROBBERY AS A POSSIBLE VERDICT, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below).
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT THEY COULD CONSIDER AS SUBSTANTIVE EVIDENCE BOTH VICTIMS' PRIOR INCONSISTENT STATEMENTS REGARDING WHO ACTUALLY TOOK THE PURSE, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).
THE PROSECUTOR'S CROSS-EXAMINATION AND SUMMATION, WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT WAS GUILTY BECAUSE SHE FAILED TO OBTAIN WITNESSES WHO COULD CORROBORATE HER ACCOUNT, IMPROPERLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT, AND VIOLATED HER RIGHT TO REMAIN SILENT, DENYING HER A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, PARAS. 1, 9, 10. (Partially Raised Below).
THE PROSECUTOR'S IMPROPER REMARKS DENIED THE DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Not Raised Below).
UNDER ALL OF THE RELEVANT CIRCUMSTANCES, THE COURT ABUSED ITS DISCRETION IN FIRST REFUSING TO SENTENCE DEFENDANT AS A SECOND DEGREE OFFENDER, AND THEN SENTENCING HER TO A TERM GREATER THAN THE MINIMUM FOR A FIRST DEGREE OFFENSE.
We substantially agree with defendant's arguments in points one through four, and consequently reverse her convictions, rendering moot defendant's argument concerning her sentence in point five.
Shortly after midnight on July 20, 2005, Lilliana Ferreira and her boyfriend, Boris Quizpe, were walking on North Broad Street in Elizabeth toward their apartment. Three people were walking toward them, two black men and one black woman. Ferreira described the woman as small with short hair, and one of the men as wearing red basketball shorts, coming below his knees, and no shirt.
Ferreira testified that the man with the red shorts grabbed her hair and put a knife to her neck, then punched her in the head and kicked her in the leg, knocking her to the ground. She stated that the "girl grabbed [her] purse." Contrary to the latter statement, when questioned by the police on the night of the incident, Ferreira gave the following statement: "The other black guy who was after Boris took my purse."
Quizpe described the woman as small and wearing jean shorts, and the man as wearing red "surf pants" but not wearing a shirt. Ferreira and Quizpe both described the man with the red pants as tall, and both claimed that the woman told the men to take Quizpe's cell phone from him because he was trying to call the police. Neither victim testified that the woman had a knife or any other weapon.
Quizpe testified at trial that defendant "was the one who took the bag from [Ferreira]." In his statement to the police following the incident, however, he said that he did not know who took Ferreira's purse.
When the two men and the woman ran away, Ferreira stayed at the scene. Quizpe ran after them, and was joined by another individual, John Sanchez, who had seen two black men and a black woman walking down the street. He described one of the men as wearing red sweat pants, down to the ankle, with a white t-shirt, and the woman as wearing "short pants of jeans and [a] red shirt." He saw the woman carrying a white purse.
After observing those people walk past him, Sanchez saw Quizpe running and screaming for help. He then joined Quizpe and walked behind the three individuals, who were no longer running. After losing the three individuals, Sanchez and Quizpe were joined by two men in a pickup truck. As they rode in the truck, Quizpe saw one of the men and a woman hiding behind a car, and the other man hiding behind another car.
Sanchez had a different recollection. He saw the three people walking toward them and he recognized the woman because she was still carrying the white purse, and one of the men was wearing red sweat pants and a white t-shirt.
Sanchez grabbed the woman, left her with the men from the pickup truck, and he followed the man in the red pants until he lost him behind a house. When Sanchez returned to the street, he found the white purse underneath a parked car.
Officers had responded to the scene. When they took defendant to the area where the robbery occurred, Ferreira identified her from across the street as one of the individuals who robbed her. Ferreira claimed that a gold necklace and some loose change were missing from her purse. When defendant was apprehended, she did not have Quizpe's cell phone or the gold chain.
Tucker was arrested at a take-out restaurant. From a police patrol car, both Ferreira and Quizpe identified him as one of the robbers. Sanchez identified Tucker as one of the men he had previously seen. Tucker was not in possession of a knife or any of the proceeds from the robbery.
Defendant testified at trial. She admitted that she was at the scene of the robbery, but she denied taking part in the robbery. She testified that her co-defendant was not one of the men who robbed the victims. She claimed that she had been visiting her brother on the night of the incident, and was outside his building with about ten or twelve other people when she asked her brother for cigarettes and he told her he did not have any. Then, she and two of the men who were there, whom she knew only as "Ant" and "Vern,"*fn1 walked to a gas station in Elizabeth to purchase cigarettes. They left after 11:00 p.m. and reached the store approximately one-half hour later. Defendant purchased a pack of cigarettes, a soda, and a cigar.
Defendant testified that as they walked back to her brother's residence, the two men whom she was with robbed the victims. Ant "had the lady by her head, her hair and he had the knife to her neck." Vern took Quizpe's cell phone.
Defendant testified that when she saw what was happening, she started to run because she did not want to be implicated in the robbery. When she left, Ferreira still had her purse. Ant and Vern caught up with defendant, pulled her by the hand, and told her to keep running because they were being followed. Defendant did what they said because she was afraid. About two blocks from her brother's building, Ant and Vern hid behind a car, but she kept walking. At that point, one of the men from the pickup truck grabbed her.
Defendant denied that she knew that Ant and Vern were going to commit a robbery that night, or that either of them had knives. She also denied taking anything from the victims.
Defendant's first claim on appeal is that the court's accomplice liability jury instruction was deficient, as it failed to properly convey to the jury that defendant could have been convicted of second-degree robbery as a lesser-included offense of the first-degree robbery charge. Although no objection was made to the charge at trial, we conclude that the charge as given constituted plain error and requires a reversal of defendant's convictions. See R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).
A jury instruction "must provide a 'comprehensible explanation of the questions that the jury must determine.'" State v. Concepcion, 111 N.J. 373, 379 (1988) (quoting State v. Green, 86 N.J. 281, 287 (1981)). A reviewing court must determine whether the charge as a whole adequately "guided the jury in performing the critical task of determining defendant's guilt or innocence." Id. at 381. Incorrect jury instructions "are poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987).
Here, the State charged defendant as an accomplice to the two men who used knives during the course of the robbery. When the State's case is based on a theory of accomplice liability, it is the court's obligation to provide the jury with accurate and understandable instructions on accomplice liability. State v. Savage, 172 N.J. 374, 388 (2002); Weeks, supra, 107 N.J. at 400. The court should tailor the accomplice liability charge to the facts of the particular case. Savage, supra, 172 N.J. at 389; State v. Cook, 300 N.J. Super. 476, 487-88 (App. Div. 1996).
When lesser-included offenses are submitted to the jury in an accomplice liability case, the trial court is required to instruct the jury as to the differences in culpability required for the grades of the crime; failure to do so is reversible error. State v. Bielkiewicz, 267 N.J. Super. 520, 528, 531-35 (App. Div. 1993). The court has an obligation to "carefully impart to the jury the distinctions between the specific intent required for the grades of the offense." Weeks, supra, 107 N.J. at 410. The jury must be told that "'[e]ach 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.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)). "If a trial court submits lesser included offenses to the jury but fails to give accurate and complete instructions regarding accomplice liability for these lesser offenses, there is a similar risk that the jury will compromise on a guilty verdict for the greater offense." Id. at 534.
Here, the court's charge was clearly capable of producing an unjust result. The court charged the jury that it could find defendant guilty as an accomplice of the lesser-included offense of theft, but the court did not instruct the jury that it could find defendant guilty as an accomplice on the lesser-included offense of second-degree robbery. The court charged the following:
Now, I told you when we began that you have a right to consider whether or not the defendant should be found guilty or not guilty as an accomplice with Mr. Tucker and the other people with either full or equal responsibility to him or the other people but you also have a right to consider whether or not she might be considered to be acting on a lesser charge and that would be theft.
If, however, you find the defendant not guilty [of] acting as accomplice of Tucker and the second male and/or Vernon or Antwan on the robberies charged in Count One, you have a right to consider whether or not she acted as an accomplice of any of those people who promote a lesser offense which in this case would be a theft from the person.
Now, our law recognizes that two or more people may participate in the commission of a crime but may participate with a different state of mind, to a different degree of responsibility. The liability for each person is dependent upon their own state of mind and not on anyone else. Guided b y these principles if you find the defendant not guilty of the crimes of robbery, you should then consider whether or not the lady is guilty or not guilty of the crime as acting as an accomplice in the charge of theft from the person . . . . [emphasis added.]
The court then defined the offense of theft as it related to accomplice liability:
Now, we are going back to the accomplice statute and charge at this point in time. Again, I repeat to you our law recognizes that two or more people may participate in the commission of a crime and in a different state of mind. The liability for each of those persons for the ensuing offense is depending upon his or her state of mind and not anything else. In considering whether a defendant is guilty or not guilty as an accomplice on the charge of theft, each person who participates in the commission of a crime may do so with a different mental state and it is depending upon his or her own mental state and nobody else's.
Therefore, for you to find her guilty of a lesser offense of theft from the person, the State must prove beyond a reasonable doubt:
One, that Mr. Tucker and/or Antwan and/or Vernon and/or another unidentified male committed the crime of robbery in Counts One and Two, or that they committed a lesser offense of theft from the person in Counts One and Two.
Two, that this defendant, Miss Scott, did aid or attempt to aid or, indeed, agree to aid any of them in planning to commit and from her point of view a theft only.
Three, that her purpose was to promote or facilitate the commission of the lesser included offense of theft only.
Four, that she possessed a criminal state of mind that is required with the commission of the lesser included offense of theft.
If you find the State's proven to you those elements as I defined theft for you a few minutes ago, the verdict must be guilty as to theft as to her only. If you are not so convinced, the verdict is not guilty. [emphasis added.]
At no point during the jury charge did the court explain to the jury the principles necessary for the jury to determine whether defendant could have been guilty of second-degree robbery.
Robbery is a second-degree offense unless, in the course of committing a theft, the actor, among other things, "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. Here, the record was sufficient for the jury to infer that although defendant participated in the robbery, she was not aware that the men were armed with or would threaten the victims with knives. That inference could have justified a conviction for second-degree robbery, rather than first-degree robbery. The court, in limiting its explanation of the lesser-included offense to theft, effectively precluded the jurors from drawing that inference.
The court's charges on the substantive offenses did not remedy the error. While charging the jury on the substantive offenses, the court instructed the jury as follows:
What makes a robbery different basically from a theft is the use of force or the menacing that causes a person to be giving the property up. A person may give an item up under threat and still can be a robbery if the person is induced by the threat, if you are put in fear.
To find the defendant guilty of robbery, you must find unanimously that the individual defendant used force against in Count One Lilliana Ferreira and in Count Two against Boris Quizpe. In other words, you must find the defendant used force but you need not find unanimously that they used force - I will start again. I am going too quickly. I beg your pardon.
We have accomplice requirements for the lady and principal. Her responsibility can only be as an accomplice. Did she help towards the commission of the crime? Did she aid it? Did she go forward in some way? You must determine that separately for each person, Mr. Tucker on Counts One and Two and Miss Scott on Counts One and Two. Okay?
To find each defendant guilty of robbery, you must find unanimously that the individual defendant used force, whether as a principal or accomplice, against each individual victim. Ferreira in Count One and Quizpe in Count Two. If you find the defendant used force but did not unanimously find that he or she used force against the victim, the State has failed to prove the use of force that is required.
This charge failed to convey to the jury that if defendant did not share the principals' intent regarding the use of a deadly weapon, a knife, in the robbery, she could be convicted of second-degree robbery. The shared intent requirement was limited only to theft as a lesser-included offense. If the jury found that the two men had committed a first-degree robbery with use of the knives, it could nevertheless convict defendant of second-degree robbery if it found that she intended to commit a theft by the use of force, but she was unaware that the men had or would use knives. The charge as given deprived the jury of that option. It is plain error when a court fails to instruct a jury on the lesser-included offense when the evidence presents "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).
Had the only trial error been the court's failure to charge the jury that defendant could be convicted of second-degree robbery, we would remand for the State to consider whether to waive retrial and request entry of a judgment and resentencing on the latter offense. See State v. Mann, 244 N.J. Super. 622, 629 (App. Div. 1990). Here, however, we conclude that a reversal of defendant's convictions is also warranted based on the cumulative effect of two other errors - (1) the court's failure to charge the jury that the victims' inconsistent statements could be used as substantive evidence; and (2) the prosecutor's improper suggestions in both cross-examination and in closing, that after her arrest, defendant should have told the police about Ant and Vern's participation in the robbery, and that she should have produced them at trial to corroborate her account of the robbery. See State v. Jenewicz, 193 N.J. 440, 473 (2008) (cumulative effect of individual errors can "cast sufficient doubt on a verdict to require reversal").
We begin with the victims' inconsistent statements. At trial, both Ferreira and Quizpe testified that defendant physically took Ferreira's purse. This testimony was inconsistent with their statements to the police immediately after the incident, when Ferreira said that one of the men took her purse, and Quizpe said he did not know who took Ferreira's purse. Although the trial judge instructed the jury that the victims' inconsistent statements could be used in evaluating their credibility, the court did not instruct the jury that the inconsistent statements could be used as substantive evidence. See State v. Gross, 121 N.J. 1, 16-17 (1990) (in addition to being instructed to use inconsistent statements in assessing credibility, jury should also be instructed as to statements' probative worth); State v. Walker, 322 N.J. Super. 535, 546 (App. Div.) (instruction on inconsistent statements not adequately addressed by general credibility instructions), certif. denied, 162 N.J. 487 (1999).
The victims' testimony that defendant took Ferreira's purse was a critical component of the prosecution's case against defendant. It directly implicated her in the crime. Although there was other evidence implicating her, such as the victims' testimony that defendant told her co-defendant to take Quizpe's cell phone, defendant was not in possession of the purse when she was apprehended, nor did she possess the stolen property that had been removed from the purse, and the jury acquitted her of the weapons charge. Under these circumstances, it was plain error not to charge the jury that the inconsistent statements could be used as substantive evidence.
Even if we were to conclude, however, that the failure to give that charge did not constitute plain error, the cumulative effect of that failure warrants a reversal of defendant's convictions when considered with the improper suggestions by the assistant prosecutor that defendant's exculpatory statements should be disbelieved because she did not report her version of the offense, identifying Antwan Rivers and Vernon Roberts as the perpetrators, or present them as witnesses at trial.
On cross-examination, the assistant prosecutor elicited responses from defendant bearing upon why she failed to produce Rivers or Roberts at trial.
Q: Now, let me talk about these two individuals, Ant and Vern. On July 19th of 2006 you only knew them as Ant and Vern, correct?
A: Yes, ma'am.
Q: Now, today you've testified that their names are Antwan Rivers and Vernon Robeson?
A: Yes, ma'am.
Q: At some point you now learned their full names, is that right?
A: Yes, ma'am.
Q: Who did you learn their full names from?
A: . . . Vernon's sister was locked up a couple months ago in this Union County jail for a charge and her bunkie, she left her bunkie her information. I got it from her bunkie.
Q: Now, you got both names from Antwan's sister's bunkie in jail; is that correct?
A: Yes, I did.
Q: And when did you get that information?
Following a sidebar conference, in which the court expressed concern that the line of questioning showed that defendant was in jail, the prosecutor repeated the same line of questioning:
Q: Now, . . . what you're saying is that from the time of the robbery to the time that you were apprehended Ant and Vern were essentially kidnapping you; is that right?
A: You could put it as that being though he didn't want to let my hand go -
Q: And but Ant and Vern, you never filed any charges against Ant and Vern, did you?
A: No, I did not.
Q: They were . . . restraining you, according to you, correct?
A: Yes, they were.
Q: They were basically, according to you, making you participate in fleeing from a crime against your will, correct?
A: Yes, they were.
Q: And you never reported them, correct?
A: No, I did not.
Q: You never told anyone about those possible criminal charges, did you?
[DEFENSE COUNSEL]: Objection, Judge.
THE COURT: Sustained. Next. Once arrested a person has no obligation to talk to the police. They have a right to remain silent. That's why I sustained the objection.
During summation the prosecutor revisited the issue:
[Defendant] was very rehearsed. That's the demeanor of her testimony but more than that, the substance of her testimony was absolutely unbelievable and the larger problem was the substance of her testimony because there is absolutely no evidence whatsoever to support it. There are plenty of people who she names who would have information that are [sic] helpful to her and helpful to this entire investigation and you don't hear from any of them, starting with her brother. Her brother who, according to her, knows she is looking for cigarettes. She is going to the store. Knows she is going to the store with that specific purpose. That she left with these two guys, Ant and Vern, and that her brother's even friends with Ant and Vern.
Well, where is he? That is an important witness to her. That is her brother. Of course she can contact him. He corroborates the whole beginning part of her story and more than that, he could have information on how to get in touch, how to find Ant and Vern. They don't have to come in here voluntarily. They can be subpoenaed. Where are they?
The clear inference that the assistant prosecutor was asking the jury to draw was that defendant had an obligation to tell the police about Rivers and Roberts after she was arrested, and had an obligation to produce them at trial to corroborate her testimony. Although the court gave a brief curative instruction as to the former, it did not address the latter.
"The primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). Although a prosecutor has a duty to use every legitimate means to bring about a just conviction, the prosecutor must refrain from using improper methods that are calculated to produce a wrongful conviction. State v. Farrell, 61 N.J. 99, 104-05 (1972).
"[A] defendant has no obligation to establish his innocence." State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003). "That applies with equal force to the situation of a defendant assuming the stand to testify and the situation of a defendant proffering affirmative evidence on his own behalf. He has no obligation to do either, and his failure in either regard cannot affect a jury's deliberations." Ibid. Nor may a prosecutor ask a jury to draw an inference of guilt from a defendant's silence following the defendant's arrest. State v. Muhammad, 182 N.J. 551, 573 (2005).
Here, the prosecutor essentially asked the jury to consider defendant's silence after her arrest as evidence that her version of the robbery was false, and to conclude that defendant should have called Rivers and Roberts as witnesses to corroborate her testimony. Although "not every prosecutorial misstatement warrants a new trial," State v. Feal, 194 N.J. 293, 312 (2008), the prosecutor's cross-examination questions and closing remarks violated defendant's privilege against self-incrimination and substantially shifted the State's burden to prove defendant's guilt beyond a reasonable doubt. They were "so egregious that [they] deprived . . . defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
Reversed and remanded for a new trial.