October 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HARRY ABREU, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-10-2136.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2009
Before Judges Payne and Waugh.
Defendant Harry Abreu appeals his conviction on one count of third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3(a). We affirm.
On the afternoon of May 4, 2004, Detective David J. LaGrone and his partner, Detective Glenn Pagano, both of the Paramus Police Department, began working their shift at the Garden State Mall in Paramus. The officers were assigned to the anti-crime unit, which was a plain-clothes, self-directed detail designed to apprehend shoplifters at the mall. About an hour into their shift, the detectives observed two males exiting Macy's department store carrying wrinkled, worn-looking Banana Republic shopping bags, which appeared full. At trial, LaGrone identified co-defendant Miguel Jesurum as one of the men he saw carrying the bags.
LaGrone observed Jesurum and the other man walk over to a black car with a temporary registration affixed to the rear windshield. They opened the trunk of the car and deposited the contents of the Banana Republic bags into the trunk. LaGrone noticed that the contents of the bags appeared to be multiples of the same clothing items; for example, "[i]f it was a belt, it was like ten belts." LaGrone also saw that the clothing still had price tags attached. LaGrone's training and experience led him to believe the clothing was stolen.
Jesurum and the other man finished emptying their bags into the car's trunk, folded the bags up, put them underneath their clothing, and walked back into the mall. About five minutes after Jesurum and the other man left the car, two more men came out of the mall, walked to the vehicle and repeated the process, also using worn-and-tattered shopping bags. The two men emptied multiples of the same item with price tags attached into the back of the car. LaGrone identified Abreu as one of the two men in the second group.
The detectives then entered the mall. LaGrone followed Abreu and the other man. Pagano contacted LaGrone on his cell phone and informed him that the other pair of suspects had left Macy's, entered the black car, and left the area. LaGrone continued watching Abreu and his companion in Macy's.
LaGrone, keeping his distance so as to not alert the men of his presence, observed Abreu and the other man acting in tandem. One would stack clothing; and the other would come up afterward and put the clothing into a worn bag. He also noticed the men would go into corners and other areas where surveillance cameras were not likely to be present. Eventually, the two men left Macy's. The other man was carrying the bag and Abreu walked with him. They went up and down the escalators several times, which according to LaGrone was done to see "if they're being tailed." During the period LaGrone was watching them, they never approached a cash register.
As Abreu and his companion exited the mall, they were making calls on their cell phones. Shortly thereafter, the black car, driven by Jesurum, pulled up nearby. Abreu and the other man walked up to the car, put the bag into the vehicle, and got in. At that point, LaGrone, Pagano, and another detective approached the car and identified themselves as police officers.
After observing "numerous belts and other items" in one of the worn bags in open view, the detective began to search the car. They recovered clothing items from Macy's totaling $1,995, as well as items from Nordstrom, The Gap, Banana Republic, Abercrombie & Fitch, Express, and Club Monaco. The grand total of recovered items, based on their price tags, was $6,947.
During the search, the detectives also recovered two screwdrivers and a box cutter. They found two New York license plates on the floor of the vehicle, from which they determined the registered owner of the vehicle was Jesurum's mother. When detectives asked the men if they had receipts, the men failed to produce receipts for the clothing. During the subsequent search of the car, however, the police found receipts from Nordstrom for several items. All four men were arrested.
The detectives then contacted Macy's. Luis J. Jimenez, who was a Macy's store detective, came to the scene. He examined the clothing, and identified some of it as being from Macy's. At the request of the Paramus Police Department, Jimenez reviewed surveillance videotape taken in the Macy's store on the afternoon of the arrest. Jimenez's review of the footage did not show defendants, or anyone else, taking clothing and putting it into bags in the manner described by LaGrone.
The police also contacted the Nordstrom loss-prevention department. David M. Suscreba, a loss-prevention agent from Nordstrom, retrieved some of the clothing from the police station and identified it as being from Nordstrom. Christian Biamonte, the Nordstrom loss-prevention manager, testified that on May 4, he reported to the scene in the parking lot outside Nordstrom and observed quantities of clothing and merchandise with Nordstrom tags. He identified two receipts from Nordstrom found inside defendants' car, which were generated with a gift card at 7:12 p.m. and 7:29 p.m. that day. The gift card was the result of merchandise that was returned to the Westchester Nordstrom store without proof of purchase. However, Biamonte could not say with complete certainty that all of the items he examined were from Nordstrom.
The police transported the clothing to the police station and photographed each individual item with a "close-up" of the price tag attached to the item. They eventually returned the stolen merchandise to the stores. The photographs were stored on a computer hard drive, which was accidentally erased. Consequently, the photographs were not produced at trial.
Jesurum and Abreu were tried together before a jury over the course of six days from March 27 to April 4, 2007. The jury found both of them guilty of theft by deception. The trial judge found Abreu guilty of one count of the disorderly persons offence of possession of burglary tools, contrary to N.J.S.A. 2C:5-5(a), based upon the trial testimony. Abreu received a probationary sentence.
Abreu raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED BY INTERFERING WITH JURY DELIBERATIONS WHEN IT VOLUNTEERED ADDITIONAL INSTRUCTIONS TO THE JURY IN THE ABSENCE OF ANY JURY QUESTION. POINT II: THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY, THEREBY DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL.
(A) THE COURT ERRED BY INSTRUCTING THE JURY ON ACCOMPLICE LIABILITY.
(B) THE TRIAL COURT ERRED BY FAILING TO PROMPTLY CHARGE THE JURY THAT THEY COULD RETURN DIFFERENT VERDICTS AS TO PRINCIPAL AND AS TO THE ACCOMPLICE IN THE CONTEXT OF LESSER INCLUDED OFFENSES.
(C) THE TRIAL COURT ERRED BY MISREADING THE JURY CHARGE, THEREBY CONFUSING THE JURY AND DEPRIVING DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
POINT III: THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.
POINT IV: THE COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION TO SET ASIDE THE JURY'S VERDICT AND GRANT A NEW TRIAL.
Abreu first contends that the trial judge improperly interfered with the jury's deliberations when she corrected her earlier response to a jury question about the availability of a copy of LaGrone's testimony. We disagree.
Trial courts have broad discretion with respect to jury requests for the reading of all or part of a witness's testimony, although that discretion is not "unbridled." State v. Wilson, 165 N.J. 657, 660-61 (2000); State v. Wolf, 44 N.J. 176, 185 (1965); State v. Rodriguez, 234 N.J. Super. 298, 311 (App. Div.), certif. denied, 117 N.J. 656 (1989). That discretion should be exercised only after consultation with counsel. State v. Whittaker, 326 N.J. Super. 252, 262 (App. Div. 1999).
In this case, the jury asked for a copy of LaGrone's testimony. After consulting with counsel, the trial judge informed the jury that no such transcript was available, adding:
"[If] you're absolutely stuck on a particular part of the testimony, it would be possible to have that portion of the testimony read back to you." She subsequently said: "But the entire testimony, no." It is not entirely clear whether she intended to tell the jury that it could not have LaGrone's entire testimony read back, or whether she was merely reiterating that there was no transcript of his entire testimony. In context, her statement could readily be interpreted as expressing the former.
At the end of the day, the prosecutor expressed concern that the jury had been left with the impression that it was not entitled to have the entire testimony read back. Defense counsel objected to any suggestion to the jury that the entire LaGrone testimony could be read back. The following morning, the judge told the jury that she wanted to correct any misimpression from her earlier response and informed the jurors that they could also request a readback of the entire testimony of any witness. She did not specifically refer to LaGrone.
Shortly thereafter, the jury requested LaGrone's direct and cross-examination related to his observations in the Macy's store. She granted the request over the objection of defense counsel. The testimony was read following the lunch break. The jury returned the guilty verdict shortly after the readback.
We see no error in the judge's exercise of her discretion to correct what the jury may well have understood as a statement that it could not request a readback of a witness's entire testimony. See State v. Middleton, 299 N.J. Super. 22, 30 (App. Div. 1997) ("It is well settled that the trial court must respond substantively to questions asked by the jury during deliberations and must assure itself that it understands the import of the questions."). While it would have been preferable to inform the jury of all the options initially, we do not see the corrective action as having produced a result that the jury would not otherwise have reached. We note that the jury had expressed its interest in LaGrone's testimony early in its deliberations, that the judge did not mention LaGrone in making the correction, and that the jury did not, in fact, ask for a readback of the entire testimony. Even if there were error, it was harmless. Defendants are entitled to a fair trial, not a perfect one. State v. Feaster, 156 N.J. 1, 84 (1998), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result....").
Abreu next contends that the trial judge erred by charging accomplice liability because it was not alleged in the indictment and because she did so without having first discussed it with counsel in advance of their summations. He also argues that the charge, as given, was incomplete and confusing.
We reject Abreu's contention that accomplice liability must have been alleged in the indictment for it to be charged. State v. Mancine, 124 N.J. 232, 256-57 (1991) ("It is well-settled law in this state that one indicted as a principal may be found guilty as an accomplice if the evidence produced at trial supports that finding.") (citation omitted); State v. Boyer, 221 N.J. Super. 387, 402 (App. Div. 1987) (A "judge may charge the jury on accomplice liability even if the indictment did not expressly allege accomplice liability as long as there is a rational basis in the evidence for accomplice liability"), certif. denied, 110 N.J. 299 (1988). Here, the evidence clearly supported an accomplice-liability charge. LaGrone testified that all four people arrested, including Abreu and Jesurum, worked in pairs in taking clothing from stores and depositing it in the same vehicle.
However, Abreu is correct that such a charge should not ordinarily be given without prior consultation with and notice to defense counsel. State v. Hakim, 205 N.J. Super. 385, 388 (App. Div. 1985) ("[T]he court should indicate its intention to [give an accomplice liability charge], with or without request, before summations.... Cf. R. 1:8-7. In this way the parties can prepare to comment on the issue of accomplice liability during summations.").
That procedure was not followed in this case. At the close of the State's case, both defendants moved for judgments of acquittal, and those applications were denied. The judge then asked whether counsel wanted "to have a charge conference" or "proceed to summations." Both defense counsel wanted to proceed to summations. After all three summations were delivered, the trial was recessed for the day.
At the charge conference the following morning, the judge reviewed the State's request to charge accomplice-liability. It is not clear from the record when the judge and defense counsel actually received the State's request.*fn1 Jesurum's counsel initially objected to the factual basis for the charge, but stated that he "st[ood] corrected" when the judge pointed out that "the officer testified that he saw all the individuals at some point return to the car, and put merchandise in it, and that when they were apprehended they were in the car[.]" There was no specific objection based upon the timing of the judge's decision to give the charge.
Inasmuch as there was an objection with respect to the proposed charge, we will not apply the plain error rule. R. 2:10-2. Nevertheless, we see no error "clearly capable of producing an unjust result." Ibid. Consequently, any error was harmless. Defense counsel chose to proceed to summations without a charge conference. Our review of the record and their summations does not suggest that they would have fashioned their summations differently had they known about the charge in advance. More importantly, our review of the record does not suggest that the jury would have reached a different verdict had that issue been addressed by defense counsel in summation.
While the trial judge's initial charge failed to communicate that an accomplice can have a different state of mind than a principal and that the difference can impact the accomplice's level of culpability, we conclude that the problem was corrected by the supplemental charge. "One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions." State v. Burns, 192 N.J. 312, 335 (2007) (citation omitted).
Consequently, we reject Abreu's contention that he was deprived of a fair trial by the inclusion of the accomplice-liability charge and by the trial judge's initially flawed delivery.
Having reviewed Abreu's remaining arguments on appeal in light of the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We add only that there was sufficient evidence in the record to support the jury's finding of guilt beyond a reasonable doubt.
In summary, we reject each of Abreu's points on appeal and affirm his conviction.