February 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDDIE LAMAR HALL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-02-0361.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2009
Before Judges Waugh and Newman.
Eddie Lamar Hall appeals his conviction for second-degree robbery, N.J.S.A. 2C:15-1, and the resulting twenty-year, mandatory extended term of imprisonment, N.J.S.A. 2C:43-7.1(b), subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Hall was acquitted on one count and does not challenge his conviction on the four other counts from the same indictment. We affirm.
The facts of the case are gleaned from the testimony presented at trial.
On October 6, 2005, at about 1:00 a.m., Kulwinder Multani was working at a gas station located at the corner of Brighton and West Sylvania Avenues in Neptune City. He was approached by Hall, who was wearing a hooded sweatshirt with the hood up. There was conflicting testimony at trial as to what happened next.
Multani testified that, at this point, Hall walked behind him and held a gun to his waist and said, "Give me all the money." Hall testified that he just walked up to Multani and demanded money and informed Multani that he was not going to hurt him. Both testified that Multani immediately gave Hall approximately $200 and that Hall also took Multani's cell phone out of his pocket. Hall testified on cross-examination that Multani seemed afraid of him during the exchange. Hall then ran across the street to the Brighton Arms apartment complex parking lot, where he got into a vehicle and drove away.
Neptune City Police Sergeant John Matthews was on duty that evening and had parked his marked patrol car so that he had a view of the gas station. He witnessed Hall approach the gas station and then subsequently run to the apartment complex, get into the vehicle, and drive away. Matthews then saw one of the gas station attendants waving and trying to signal the other attendant. Matthews notified dispatch and followed Hall.
In the course of the pursuit, Hall crashed the car and then fled on foot. Hall was apprehended shortly thereafter. Lieutenant Robert Kepler came to the scene of the crash, entered the vehicle to turn off the ignition, and discovered a pack of cigarettes which contained a folded dollar bill that had cocaine inside.
After his apprehension, Hall told Matthews that he wanted to make a deal. Matthews informed Hall of his Miranda*fn1 rights. Hall's discussion with Matthews during the car ride to the police station was recorded. At some point during the discussion, Hall told Matthews that, as he had approached Multani, he poked his finger against his sweatshirt as if he had a gun.
Detective James Isacson interviewed Hall once he arrived at the police station. Isacson again reviewed Hall's Miranda rights with him. Isacson told Hall he was concerned for the safety of the public because Hall had used a gun during the robbery and disposed of it prior to his apprehension. Hall initially denied having a gun, but then informed Isacson that there was no need to worry because it was a toy gun. He also told Isacson that he would show him where he had disposed of the toy gun, but his assistance was unnecessary because Detective James Clayton had recovered approximately $58 and a black toy gun along the route of the pursuit shortly after Hall's apprehension.
During the interrogation, Hall demonstrated for Isacson how he pulled the toy gun out of his pocket during the exchange with Multani. At trial, Hall testified that the statements and demonstration were made in error and that he never actually showed Multani the toy gun.
On February 22, 2006, Hall was indicted on six counts: third-degree theft of movable property (automobile), N.J.S.A. 2C:20-3(a) (count I); first-degree armed robbery, N.J.S.A. 2C:15-1 (count II); fourth-degree unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4(e) (count III); second-degree eluding an officer, N.J.S.A. 2C:29-2(b) (count IV); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count V); and third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count VI).
Prior to trial, defense counsel moved to suppress Hall's two video-taped statements. The trial judge found that Hall knowingly and intelligently waived his Miranda rights prior to both statements and denied the motion. That decision is not challenged on appeal.
Hall was tried by a jury over four days in October 2006. At the trial, Hall testified in his own defense. He admitted that he had taken the money and cell phone from Multani. Hall testified that, although he did have a fake gun in his possession, he never used or simulated using it during the robbery. The basic premise of Hall's defense was that, because he already had two first-degree convictions, he would never have committed a first-degree armed robbery because he knew that he would receive a life sentence pursuant to N.J.S.A. 2C:43-7.1(a) if convicted.
The jury convicted Hall of second-degree rather than first-degree robbery, having determined that he "did not use or threaten the immediate use of a simulated deadly weapon during the course of committing the theft" from the gas station attendant. Hall was acquitted of third-degree theft of the automobile, but convicted on the remaining counts.
Hall was sentenced on March 8, 2007. The trial judge granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-7.1(b) on count II. The trial judge found three aggravating factors, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and characterized Hall's "drug use" as the only mitigating factor.*fn2
Hall was sentenced to an extended twenty-year term, N.J.S.A. 2C:43-7.1(b), subject to an eighty-five percent NERA parole disqualifier, and three years of parole supervision upon release, N.J.S.A. 2C:43-7.2(c), for count II. Additionally, Hall was sentenced to a five-year term each for counts III, IV, and VI to run concurrent to the sentence for count II. Finally, Hall received an eighteen-month term of imprisonment for count V to be served concurrent to counts II, III, IV, and VI.
This appeal followed.
Hall raises the following issues on appeal:
The court erred in failing to charge theft, which was clearly raised by defendant's testimony, as the lesser-included offense to robbery. (Not raised below).
Hall was sentenced to a manifestly excessive extended term of 20 years with an 85% parole bar under NERA as a repeat violent offender.
Hall argues that the trial court erred by not charging the lesser included offense of theft, N.J.S.A. 2C:20-3(a), for count II, in addition to the charges given for first and second-degree robbery. We review this issue under the plain error standard because it was not raised below.*fn3 State v. Ingram, 196 N.J. 23, 42-43 (2008).
In State v. Choice, 98 N.J. 295, 298-99 (1985) (footnotes omitted), the Supreme Court described a trial court's duty with respect to charging a lesser-included offense that has not been requested as follows:
We held [in State v. Powell, 84 N.J. 305 (1980),] that the fact that defendant's position at trial was totally inconsistent with a manslaughter verdict did not deprive him of the right to have that lesser offense submitted to the jury, and that it was reversible error on the part of the trial court upon request, to refuse to charge such lesser offense. In dictum we noted that "where the facts clearly indicate the possibility that the crime was manslaughter based upon either provocation/passion or imperfect self-defense, we see no reason why the trial judge should not also be obliged, even without any request being made, so to charge." [Id.] at 318 (emphasis supplied). Our conclusion was based on our belief that the public interest may require that a particular charge be given to the jury, where the facts rationally support such a charge, even though neither the defense nor the prosecution has requested it; that enforcement of the criminal law is too important to be controlled completely by the contentions of the adversaries; and that the court has an obligation to see to it that the jury, as the representative of the public, is given all of the facts and all of the possible offenses that might reasonably be found from such facts. That dictum, however, was limited to a statement of the trial court's duty. The limitation was explicit: "We express no opinion here as to the effect, on appeal, of a failure so to charge where no request has been made. Rather we shall state the duty of the trial court when similar circumstances present themselves." [Ibid.]
Our review of the record in this matter shows that whatever else in this case may be murky, it is clear that the facts here do not "clearly indicate the possibility that the crime was manslaughter based upon . . . provocation/passion." [Ibid.] The trial court does not, by virtue of Powell, have the obligation on its own meticulously to sift through the entire record in every murder trial to see if some combination of facts and inferences might rationally sustain a manslaughter charge. It is only when the facts "clearly indicate" the appropriateness of that charge that the duty of the trial court arises. That is what was referred to in Powell, and those were the facts as they existed in Powell.
See also State v. Denofa, 187 N.J. 24, 42 (2006) ("[C]courts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted.").
There is no question that theft is a lesser-included offense, inasmuch as the State must prove that there was a theft as part of proving that there was a robbery. N.J.S.A. 2C:15-1.
[T]heft, by definition, is a lesser-included offense of robbery. See State v. Lopez, 187 N.J. 91, 98 (2006) (contrasting theft and robbery); State v. Farrad, 164 N.J. 247, 257 (2000) (defining theft as "'the unlawful taking or exercise of unlawful control over property of another with purpose to deprive him thereof'" (quoting State v. Carlos, 187 N.J. Super. 406, 412 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983)), and robbery as theft by use of force, fear or intimidation); State v. Walton, 368 N.J. Super. 298, 308-309 (App. Div. 2004) (stating that "[t]heft is a lesser-included offense of robbery, and it is appropriate to charge theft if there is a question whether the defendant's act of inflicting bodily injury, using force upon another or threatening another with or purposefully putting him in fear of bodily injury occurred in the course of committing a theft" (citation, internal quotation marks and editing marks omitted)). [Ingram, supra, 196 N.J. at 39-40 (emphasis added).]
In this case, the question of whether the trial judge should have, sua sponte, charged theft separately, as a lesser-included offense, must be viewed in the context of Hall's overall trial strategy. That trial strategy was clearly informed by the fact that Hall had two prior convictions for first-degree crimes, such that he would have been subject to a life sentence pursuant to N.J.S.A. 2C:43-7.1(a) had he been convicted of first-degree armed robbery at this trial. In addition, his video-taped confessions both included statements about his use of the toy gun that would have supported a conviction for first-degree robbery had the jury believed them.
The defense in this case centered on the difference between first and second-degree robbery. Throughout the trial, Hall and his defense counsel admitted the "robbery," but denied the use of the toy gun. In his opening statement, defense counsel told the jury: "Really the only issue that [Hall] has in this case is that he never displayed the little plastic gun  during the robbery"; and "He did the robbery, he freely admits that." (Emphasis added). During his direct testimony, Hall was asked whether he "committed this robbery" and he responded: "Yes, sir." (Emphasis added).
After the in-chambers charge conference, the trial court outlined on the record defense counsel's concern about the charge:
The defense counsel had one primary concern, one concern really. It had to do with the second count of the indictment, the difference between robbery in the second degree, and robbery in the first degree.
What was made clear, and what's going to be made clear in the charge, and is made clear in the verdict sheet but more importantly the charge, we have in question two, the question of robbery, guilty or not guilty.
And then we go on, if the jury finds the defendant guilty of robbery, they're to determine whether he did use or threaten the immediate use of simulated deadly weapon during the course of committing a theft, or did not use or threaten the immediate use of a simulated deadly weapon during the theft.
That is how the case was tried, and that's what we just heard before the jury in the testimony.
The defendant is, of course, denying that he actually showed a simulated deadly weapon to the victim, or for that matter, put his hand in his hoodie to simulate a deadly weapon.
As I've explained to both sides, and I'm going to put on the record now so it's clear, the charge is going to reflect that, that is the key in the case here is the defense pretty much has conceded everything except the armed robbery charge. That's where they've defended.
And what I'm going to charge to the jury is that the jury would have to find beyond a reasonable doubt that the defendant not only possessed a simulated deadly weapon, an imitation firearm, but that he showed it to the victim or gave the victim reason to believe. Reason to believe has to deal with the hand in the hoodie. The classic from the gangster movie, put the hand in the pocket and show it.
Now the hoodie they're referring to was the pouch portion of the hoodie where supposedly in one aspect of it, the defendant said he put his hand in the hoodie. But the victim to this crime said that there was a gun . . . taken out and put in his right side, as I recall the testimony.
That's going to be explained to the jury in detail. And that's what we discussed in chambers, and that's where the case is turning. I believe that's correct, [Defense Counsel]?
[Defense Counsel]: Yes, Judge.
Defense counsel, in both his questioning of his client and during his summation, made repeated reference to the "three strikes law," N.J.S.A. 2C:43-7.1(a), and the importance to Hall that he not be found guilty of first-degree robbery by virtue of using the toy gun. That strategy was very successful. The jury convicted Hall of second-degree robbery by finding that he "did not use or threaten the immediate use of a simulated deadly weapon during the course of committing the theft."
Given the overall defense strategy and the admissions made by counsel and Hall during the trial to the effect that Hall "did the robbery," we find no error on the part of the trial judge in not sua sponte charging theft separately. Had there been a different trial strategy, such that those admissions had not been made, a jury could conceivably have found Hall guilty of theft but not robbery, if it believed his testimony that, in addition to not using the toy gun, he did and said nothing to the gas station attendant to threaten him "with or purposely put him in fear of immediate bodily injury." N.J.S.A. 2C:15-1(a)(2). However, there was no rational basis to believe that the jury would do so in light of the defense strategy employed at trial, including the admissions that Hall "did the robbery." Consequently, the trial judge could not "reasonably" have been expected to charge theft, unasked, under the circumstances before him at the time of the charge conference.
Hall also asserts that the sentence imposed by the trial judge was "manifestly excessive." Having reviewed defendant's arguments and the record before us, we are satisfied that Hall's arguments with respect to his sentence are without merit and do not warrant extensive discussion in a written opinion on appeal.
R. 2:11-3(e)(2). We add only the following.
Our role in reviewing a sentence is limited.
"[W]e will exercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience. We anticipate that we will not be required to invoke this judicial power frequently." [State v. ]Roth, 95 N.J. [334,] 364 [(1984)] (citation omitted). The test, then, is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review. Id. at 365. [State v. Ghertler, 114 N.J. 383, 388 (1989).]
The sentence imposed for count II was within the statutory framework for a mandatory extended-term for a second-degree conviction. N.J.S.A. 2C:43-7.1. We are satisfied that the trial judge's sentence and his reasons for imposing it were amply supported by the record.
In summary, we affirm Hall's conviction, having determined that there was no plain error with respect to the trial judge's not charging theft as a lesser included offense when he was not asked to do so by defendant. We also affirm the sentence, having determined that it was a legal sentence well within the discretion of the sentencing judge.