November 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARREN A. EASLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-12-0818.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2009
Before Judges Baxter and Alvarez.
Tried to a jury, defendant Darren A. Easley was convicted of first-degree robbery, N.J.S.A. 2C:15-1a(2), and fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4e. On September 18, 2006, defendant was sentenced to fourteen years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery count, and a concurrent one-year term for the imitation firearm count. Appropriate fees and penalties were imposed. Defendant appeals and we affirm.
The following facts were developed at trial. On November 24, 2003, Nicholas Lombardo, a security officer employed at a Target store in Watchung, noticed defendant on the closed-circuit TV system as he quickly pushed a shopping cart into the store. Moments later, Lombardo saw defendant stacking items on the "baby seat" area of the cart. Because it is not uncommon for shoplifters to erect a wall behind which they can hide stolen goods in their clothing, Lombardo focused his attention on defendant. When defendant approached an aisle in the store not visible on the surveillance system, Lombardo left the security office, while his partner, Camille Jeanolouise, continued to attempt to monitor defendant's movements on-camera. As Lombardo approached defendant, he saw him "grabbing . . . [razor] blades and concealing them inside his coat." Lombardo radioed Jeanolouise, and asked Lavar Graves, a store manager, for assistance.
Lombardo confronted defendant within the vestibule area leading to the sidewalk as he was leaving the store. Defendant ignored him and continued to walk out of the store. Jeanolouise had arrived by then; he and Lombardo grabbed defendant's arms and unsuccessfully struggled to put defendant in handcuffs. Graves stepped in to assist. Lombardo testified that defendant was "quite belligerent," "non-cooperative," and denied having merchandise on his person.
When defendant broke free, he reached into his pocket and took out what appeared to be a handgun. As he did so, packages of razor blades fell out of his clothing onto the ground. Lombardo thought that the weapon looked like a black revolver, approximately twelve to fourteen inches in length. Graves described the gun as black with a brown handle, similar to a 22 caliber.
Graves testified that defendant pointed the gun at him and said, "I'll blow you the f--- away . . . ." Lombardo, who witnessed defendant brandishing the weapon and threatening to kill Graves, told defendant he was free to leave, but followed him from a distance as he walked across the store parking lot to a tan Nissan. Lombardo immediately reported the incident to the Watchung police.
The driver of the Nissan, Charles Ralph Lindsay Jones, was located soon after the report. He claimed he had merely given defendant a ride to the Target store and waited while he went inside. When defendant returned, Jones noticed that defendant was "agitated" and "nervous." Jones said defendant told him, "let's go, we got to get out of here." While he was driving away from the store, defendant pulled a small black toy gun with a brown handle from his waistband and showed it to Jones. Jones asked defendant what happened, to which defendant responded that he "had to do what [he] had to do." Jones drove defendant to buy cigarettes, dropped him off, and was headed towards home when stopped by police.
Jones agreed to assist the authorities, and located defendant on a street in Plainfield. He drove him to a predesignated spot, where he was pulled over by police, and defendant was arrested. A toy gun matching the description given by Graves was found on defendant's person. One of the officers who testified on behalf of the State was previously acquainted with defendant, and recognized him on the surveillance tapes.
On appeal, defendant raises the following points:
THE COURT COMMITTED REVERSIBLE ERROR WHEN IT INSTRUCTED THE JURY ON THE INCORRECT MENTAL STATE REGARDING THE ARMED ROBBERY CHARGE (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSE OF TERRORISTIC THREATS (NOT RAISED BELOW).
THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY ON IMPERFECT SELF DEFENSE THAT, IF CHARGED, WOULD HAVE COMPELLED THE JURY TO CONSIDER WHETHER DEFENDANT BRANDISHED THE TOY GUN UNDER AN HONEST BUT MISTAKEN BELIEF HE NEEDED TO ACT IN SELF DEFENSE, NEGATING THE REQUIRED ELEMENT THAT DEFENDANT ACTED PURPOSELY TO PUT THE VICTIMS IN FEAR OF BODILY INJURY (NOT RAISED BELOW).
THE COURT ERRED WHEN IT CHARGED THE JURY ON THE USE OF DEADLY FORCE IN SELF DEFENSE WHEN THERE WAS NO FACTUAL BASIS FOR SUCH A CHARGE, FURTHER CONFUSING THE JURY AND PREJUDICING DEFENDANT BY PREVENTING THE JURY FROM FAIRLY CONSIDERING HIS DEFENSE (NOT RAISED BELOW).
THE PROSECUTOR'S COMMENTS ABOUT THE GRAND JURY PROCESS WERE IMPROPER BECAUSE HE URGED THE PETIT JURY TO CONSIDER THE FINDINGS OF THE GRAND JURY DURING ITS DELIBERATIONS (NOT RAISED BELOW).
DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION.
Defendant contends that the trial court erred by instructing the jury that they could convict him if he "knowingly" threatened immediate harm to his victims in the course of committing theft. Defendant asserts that the State should have been required to prove that he "purposely" threatened harm.
Contrary to this position, during the charge conference, both counsel and the trial court agreed that the relevant state of mind was "knowing." In accord with the Model Jury Charge, the court instructed the jury that in order for defendant to be convicted of robbery, they must find "that while in the course of committing [the] theft [defendant] knowingly threatened another with immediate bodily injury." The court also told the jury that they could find defendant guilty only if the State proved beyond a reasonable doubt that defendant "knowingly threatened" immediate bodily injury, while "purposely" committing or attempting to commit a theft.
In differentiating between first and second-degree robbery, the court charged that:
In this case it is alleged that the defendant was armed with or used or threatened the immediate use of a deadly weapon while in the course of committing the robbery . . . .
In this case the State alleges that the defendant was armed with an imitation firearm when committing the robbery at Target. You must determine if the imitation firearm qualifies as a deadly weapon and if the State has proven beyond a reasonable doubt that the defendant used this weapon in the course of committing this robbery.
It is not sufficient that the defendant only made a threat or reference to a weapon alone. In other words, the State must prove beyond a reasonable doubt that the defendant not only threatened the immediate use of a deadly weapon, but it must also prove beyond a reasonable doubt that the defendant engaged in conduct or gestures which would lead a reasonable person to believe that the defendant possessed a deadly weapon.
The charges essentially tracked the relevant Model Jury Charges.
We consider defendant's contention of error with the following principle in mind. Where no objection is raised to a jury charge at trial, the party alleging error on appeal must establish plain error. R. 1:7-2. In this case, not only did defendant not object to the charge, he agreed to the charge. Plain error analysis is therefore appropriate. State v. Torres, 183 N.J. 554, 564 (2005); R. 2:10-2.
Moreover, in determining whether plain error has occurred, we consider the charge as a whole. Ibid. (citing State v. Wilbely, 63 N.J. 420, 422 (1973)). The doctrine of plain error requires us to assess whether defendant has demonstrated that any purported "'legal impropriety in the charge prejudicially affect[ed]'" his right to a fair trial. Ibid. (citing State v. Jordan, 147 N.J. 409, 422 (1997)). We need to be convinced that the alleged error "possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 9 S.Ct. 2254, 26 L.Ed. 2d 797 (1970) (citation omitted). This plain error review is made in the context of the "overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
N.J.S.A. 2C:2-2c(3) states in part:
[a] statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime with the culpability defined in paragraph b.(2) of this section.
Paragraph b(2) states:
A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning. [N.J.S.A. 2C:2-2b(2).]
In other words, unless the applicable section of the Criminal Code specifies a different state of mind, N.J.S.A. 2C:2-2c(3) establishes the default culpable mental state as "knowing."
Defendant was charged with robbery where the actor "[t]hreatens another with . . . immediate bodily injury" during the course of committing a theft, N.J.S.A. 2C:15-1a(2). That section of the robbery statute does not specify which state of mind the State must prove. Ibid.
Our Supreme Court addressed a similar void in the robbery statute in State v. Sewell, 127 N.J. 133, 138 (1992). That conviction was based on the section of the statute which defines robbery as a theft where the actor "inflicts bodily injury or uses force upon another." N.J.S.A. 2C:15-1a(1). Like the subsection under consideration here, subsection a(1) does not specify the requisite mental state. Ibid. The Court therefore employed the "gap-filler" provisions of N.J.S.A. 2C:2-2c(3) to fill the void. Sewell, supra, 127 N.J. at 140-41, 148-49.
Defendant relies primarily on State v. Nero, 195 N.J. 397 (2008) to bolster his argument that the State should have been required to prove a "purposeful" state of mind. In Nero, however, the defendant was simulating the use of a deadly weapon during a robbery by gesturing towards his waistband while saying "do you know what I got right here?" Id. at 401. The Court agreed that in order to elevate the crime from a second-degree to a first-degree robbery, a purposeful state of mind was necessary. A purposeful state of mind, as opposed to a knowing state of mind, had to be proven to distinguish "between an actor who knowingly conveys that he/she has a weapon, whether real or simulated, and one who accidentally conveys the same message."
Id. at 406. The Nero Court therefore concluded that, "in respect of a robbery threatening the immediate use of a deadly weapon by simulation, the robbery statute, by its own terms and by the application of common logic, requires that the simulation of a deadly weapon be done 'purposely.'" Id. at 408 (emphasis added).
Unlike the scenario in Nero, no reasonable juror could find that defendant was ignorant of the effect that displaying an imitation firearm would have on his audience. We think it unlikely that the outcome would have been different even if the judge had required the jury to find that defendant had acted purposefully. The facts in this case are more akin to those in Sewell as opposed to Nero.
The trial judge and trial counsel in this case were merely addressing a void in the statute by the use of the statutory gap-filler provision. Hence, the trial judge correctly charged the jury that in order to find defendant guilty of first-degree robbery, they must find he "knowingly threatened another with immediate bodily injury."
Accordingly, we conclude that the jury instructions accurately conveyed the substantive elements for first-degree robbery because the gap-filler statute required only a "knowing" state of mind be proven. No error occurred at all, much less an error "capable of bringing about an unjust result."
Defendant also contends that the trial court erred in failing to charge the jury sua sponte with the lesser-included offense of third-degree terroristic threats, N.J.S.A. 2C:12-3b.
This claim must also be analyzed pursuant to the plain error doctrine as the issue was not raised during the trial.
R. 2:10-2. Defendant asserts that, had the trial court charged terroristic threats, the jury would then have had the option of finding him guilty of that offense and the lesser-included offense of disorderly persons shoplifting, N.J.S.A. 2C:20-11, which the trial judge did charge. Defendant claims that the failure to include a charge for terroristic threats deterred the jury from convicting him of shoplifting, because to do so would have "completely excuse[d] defendant of threatening to kill the security men . . . ."
Apart from the fact that defendant was found guilty of first-degree robbery, rather than the lesser-included second-degree robbery, a "trial court has no sua sponte obligation to charge a jury on a related offense that is not requested or consented to by the defense." State v. Thomas, 187 N.J. 119, 134 (2006). And there is no obligation on a trial court to charge offenses for which there is no basis in law or fact. See State v. Brent, 137 N.J. 107, 118 (1994).
Defendant also asserts that the court's failure to charge terroristic threats sua sponte deprived him of the opportunity to argue to the jury that he was acting in self-defense. In actuality, the court did instruct the jury as to self-defense at defendant's specific request. The argument lacks merit not only because the offense of terroristic threats is not a lesser-included offense of robbery, but also because failure to give the instruction did not prevent defendant from presenting his theory of self-defense to the jury.
Defendant also argues that the terroristic threats instruction was necessary so that the jury could have assessed whether the act of theft was completed by the time he confronted the Target employees. We do not agree that the confrontation in this case was separate from the act of theft, however.
An act is "deemed to be included in the phrase 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." N.J.S.A. 2C:15-1(a). The act of theft is not complete until the actor reaches a point of temporary safety or is taken into custody. State v. Mirault, 92 N.J. 492, 500-01 (1983). Obviously, defendant was neither at a point of temporary safety nor in the custody of the authorities when he was confronted by security prior to leaving the store. He had not entered the final phase of the commission of this theft, namely, flight.
While deliberating, the jury asked if "fleeing" was "part of in the course of committing a crime." The court*fn1 responded appropriately by recharging from the robbery Model Jury Charge that flight is included within the definition of theft. The jury was actually instructed twice on this point. There was no rational basis to charge terroristic threats because of any possible confusion on the part of the jury as to whether the theft was complete by the time defendant confronted security personnel. As a result, the failure to charge terroristic threats did not prejudicially affect defendant's right to a fair trial. It did not have the capacity to bring about an unjust result as it was not error at all.
Defendant further contends that the court erred in failing to instruct the jury on imperfect self-defense in that the theory would have negated the required mental state of "purposeful conduct." Because we do not concur that the correct mental state was "purposeful," and do affirm the trial court's use of the gap-filler statute and resulting charge as to a knowing state of mind, we will not consider the argument further. R. 2:11-3(e)(2).
Defendant requested a self-defense instruction during the charge conference. The court agreed that the jury could infer that defendant felt a need to protect himself, based on the testimony of Lombardo and Graves, and their description of the struggle to handcuff defendant. The trial court specifically asked whether defendant was requesting instructions regarding "deadly force or non-deadly force" as part of the self-defense charge. Defense counsel responded that in order "to be fair," both should be given. The court commented that it was not known whether defendant used a toy or a real gun during the incident, but agreed to instruct the jury as to both scenarios. The court's instruction closely tracked the Model Jury Charge for self-defense. Model Jury Charge (Criminal), "Justification - Self Defense, In Self Protection" (2006). The court said:
When a person is in imminent danger of bodily harm, the person has the right to use force or even deadly force when that force is necessary to prevent the use against him of unlawful force.
The force used by the defendant must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the defendant . . . .
If the force used by the defendant was not immediately necessary for the defendant's protection or if the force used by the defendant was disproportionate in its intensity, then the use of such force by the defendant was not justified and the self defense claim fails.
As to deadly force, the court said:
The use of deadly force may be justified only to defend against force or the threat of force of nearly equal severity and is not justifiable unless the defendant reasonably believes that such force is necessary to protect himself against death or serious bodily harm.
Deadly force is defined as force that the defendant uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. By serious bodily harm we mean an injury that creates a substantial risk of death or which causes serious permanent disfigurement or which causes a protracted loss or impairment of the function of any bodily member or organ.
The charge included this example: "[a] mere threat with a firearm . . . intended only to make the victim of the threat believe that the defendant will use the firearm if necessary is not an example of deadly force." Again, we must apply the plain error standard of review and ask whether the charge was capable of causing an unjust result. Chapland, supra, 187 N.J. at 289.
Defendant requested that the jury instruction include the use of deadly force. If error occurred, it was error invited by defendant. Where invited, error which does not demonstrably impair a defendant's ability to maintain a defense on the merits does not warrant reversal. State v. Lykes, 192 N.J. 519, 539 (2007). In this case, defendant's justification for using non-deadly force was also included in the charge.
The jury understood that even as to non-deadly force, the State had to prove beyond a reasonable doubt that defendant knew he could have retreated with complete safety. Given the explanation, which gave the jury an option they rejected, defendant has not demonstrated that his ability to assert a defense was impaired by the issuance of the deadly force language. The instruction, if error, was invited, and in any event was not prejudicial to the outcome.
Defendant also contends the prosecutor engaged in prosecutorial misconduct when he described the grand jury process. During summations, defendant's attorney said:
Here my client is brought before you by way of an indictment which is not proof of his guilt. An indictment is like a theater ticket. If you want to go to the theater you have to have a ticket. If you want to go to Municipal Court if there's a charge there, you have to have a ticket.
Well, in Superior Court we have an indictment. That's all it is. It's a way to get here. It's after that that the State is bound to prove their [sic] case beyond a reasonable doubt . . . .
The State responded:
[c]counsel talked about the . . . indictment as a ticket, that it's just a ticket to get us where we are. The Judge talked to you about what an indictment is.
An indictment is where after a matter is presented to a grand jury and there's a sufficient amount of jurors . . . who believe that there's probable cause that a crime has been committed and then the case is referred to Superior Court where we . . . determine . . . beyond a reasonable doubt whether the defendant did it.
It's not a rubber stamp. There are people who after a presentation [sic] a grand jury will decide not to indict and it's called a no-bill. There's no rubber stamp. But if it's a true bill, if there's probable cause, which is not the equivalent of beyond a reasonable doubt, it's a lot lower standard, but there's still a standard. When that standard is met, it comes up here in the way of an indictment.
No objection was made, therefore we again employ the plain error standard. Prosecutorial misconduct occurs where the conduct is "so egregious as to deprive defendant of a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted). In this case, the comments certainly did not deprive defendant of a fair trial.
Defendant's counsel did not object at the time the comments were made, so the remarks in context, must not have seemed prejudicial. They were made in response to defense counsel's argument that the indictment process is meaningless. Although it would have been preferable for the prosecutor to have avoided providing so much detail about the grand jury process, nothing in the prosecutor's comment impaired the jury's ability to rationally evaluate the overwhelming proofs against defendant.
Defendant also asserts it was error for the court to sentence him to fourteen years; that a sentence in the second-degree range would have been in "the interest of justice." In order for the lesser sentence to be imposed, the statutory requirements of N.J.S.A. 2C:44-1f(2) must be satisfied. The court must be "clearly convinced that the mitigating factors substantially outweigh[ed] the aggravating factors" and that "the interest of justice" demanded a sentence in the second-degree range. Ibid.
At the sentencing hearing, defense counsel requested that a lesser sentence be imposed because the incident began as a shoplifting and because defendants who receive NERA sentences must serve eighty-five percent of the term of imprisonment. Defendant also requested that the court consider the following mitigating factors: that defendant did not anticipate his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1b(2); that he acted under a strong provocation, N.J.S.A. 2C:44-1b(3); that the circumstances of the crime were not likely to recur, N.J.S.A. 2C:44-1b(8); and that his incarceration would result in a hardship to his children, N.J.S.A. 2C:44-1b(11).
Defendant had eight prior convictions in municipal court for offenses ranging from theft to possession of narcotic paraphernalia, as well as two prior indictable convictions for third-degree possession of CDS and theft by unlawful taking. Defendant had previously violated both probation and parole, and had served maximum time in state prison as a result for both of his indictable convictions. He was a daily heroin user who lived with his parents up to the time of his arrest. Based on defendant's prior criminal history and the circumstances of the offense, the court found the risk defendant would reoffend, N.J.S.A. 2C:44-1a(3); the extent of his prior criminal history, N.J.S.A. 2C:44-1a(6); and the need to deter this defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The court found in mitigation only that defendant's drug addiction might explain, although not excuse, his criminal conduct, N.J.S.A. 2C:44-1b(4). The court was not presented with any information upon which any other mitigating factors could be found. As a result, we conclude there was no evidence which demonstrated that the interest of justice compelled a sentence in the lesser range.
Appellate review of a sentence is governed by an abuse of discretion standard. We do not substitute our judgment for that of a trial court. See State v. Roth, 95 N.J. 334, 365 (1984). Although this matter may have originated with a shoplifting gone awry, the jury reached a fair verdict and the sentence does not shock our conscience. See Id. at 364.