July 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS GREEN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-01-0024.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 8, 2008
Before Judges C.S. Fisher and Grall.
Defendant Thomas Green appeals from the denial of his second petition for post-conviction relief. We affirm.
On joint application of the State and the defense, defendant was tried on charges included in two indictments. On the first indictment, he was convicted of felony murder, N.J.S.A. 2C:11-3a(3); kidnapping, N.J.S.A. 2C:13-1b(1); possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a. His convictions for kidnapping and possession of a firearm with an unlawful purpose were merged with his conviction for felony murder, and he was sentenced to a thirty-year term of incarceration with no possibility of parole, N.J.S.A. 2C:11-3b(1), and a concurrent five-year term of imprisonment for possession of a handgun without a permit.
On the second indictment, defendant was convicted of possession of cocaine, N.J.S.A. 2C:35-10a(1); possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(2); receiving stolen property, N.J.S.A. 2C:20-7; and possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a. He was sentenced to a ten-year term of imprisonment for the drug convictions, which were merged, and concurrent terms of six and eighteen months, respectively, for the theft and weapons offenses.
This court affirmed defendant's conviction and sentence, and the Supreme Court denied his petition for certification. State v. Green, 274 N.J. Super. 15 (App. Div.), certif. denied, 137 N.J. 312 (1994). This court also affirmed the denial of defendant's first petition for post-conviction relief, and the Supreme Court again denied his petition for certification. State v. Green, No. A-3559-96 (App. Div. Feb. 17, 1999), certif. denied, 160 N.J. 475 (1999). This court also affirmed the denial of defendant's post-trial motion to correct an illegal sentence. State v. Green, No. A-0110-03 (App. Div. Dec. 28, 2004). Apparently, subsequent to that decision, defendant filed this second petition for post-conviction relief, which was denied on June 20, 2007 and a motion for reconsideration that was denied on July 27, 2007.*fn1 After defendant filed this appeal, he moved for a remand on the grounds of newly discovered evidence. This court denied that motion by order of March 18, 2008.
Defendant raises the following issues on appeal:
I. A NON[-]SLAYER PARTICIPANT IN FELONY MURDER CAN ONLY BE GUILTY AS AN ACCOMPLICE UNDER THE STATUTORY DEFENSE CARVED OUT FOR THE NON[-]SLAYER PARTICIPANT, AND IT WAS ERROR FOR THE TRIAL COURT TO INCLUDE THE ACCOMPLICE LIABILITY INSTRUCTION WITH THE STATUTORY DEFENSE BECAUSE IT DILUTED THE STATE'S BURDEN OF DISPROVING THE STATUTORY DEFENSE BEYOND A REASONABLE DOUBT.
II. A HOMICIDE COMMITTED DURING THE COMMISSION OF AN OFFENSE IS FELONY MURDER NOT KIDNAPPING FOR THE PURPOSE TO COMMIT MURDER AND THE DEFENDANT SHOULD NOT HAVE BEEN TRIED FOR BOTH OFFENSES.
III. THE JURY WAS NOT PERMITTED TO DETERMINE WHETHER THE VICTIM WAS SHOT BEFORE OR AFTER HE WAS PLACED IN THE CAR WHICH HAS THE ELEMENT OF THE OFFENSE TO THE CHARGE OF FELONY MURDER.
IV. MOTIVE IS NOT WITHIN THE INTENT OF THE RULE GOVERNING CONSOLIDATION OF INDICTMENTS.
After full consideration of the arguments presented, we conclude that not one has sufficient merit to warrant discussion in a written opinion beyond the brief comments that follow. R. 2:11-3(e)(2).
First, the instruction on accomplice liability that was given with the felony murder charge related only to the predicate crime, kidnapping. The jury charge is not capable of being construed to relate to the affirmative defense; the judge clearly directed the jury that the State was required to disprove that defense beyond a reasonable doubt.
Second, the jury was not instructed on kidnapping with the purpose of committing murder. Consistent with N.J.S.A. 2C:13-1b(1), the jury was instructed on kidnapping based on the unlawful removal of the victim "a substantial distance" with the purpose to facilitate murder or the flight thereafter.
Third, to the extent that defendant argues that he could not be convicted of felony murder based on kidnapping if the victim died before he was taken, we agree. But the instruction, read as a whole, did not permit the jury to convict on that basis. The court explained that the jury could not find defendant guilty unless it found that the distance was substantial -- that it was "more than incidental to the underlying crime and substantially increase[d] the risk of harm to the victim." The jury could not have made that finding unless it concluded that the victim was alive when he was removed.
Fourth, this court has previously commented on the propriety of trying defendant on the charges in these two indictments in one proceeding. Green, supra, 274 N.J. Super. at 31. The arguments raised here give us no reason to supplement that discussion.