December 23, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALVIN LOVE, A/K/A ALVIN A. LOVE, ALVEN LOVE, ALVEN LEWIS, AND CLAYTON SAUNDERS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-08-2941.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 28, 2009
Before Judges Cuff and Waugh.
A jury found defendant Alvin Love guilty of first degree robbery, contrary to N.J.S.A. 2C:15-1 (Count Four), and second degree conspiracy, contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (Count Six).*fn1 After merging Count Six with Count Four, defendant was sentenced to forty years imprisonment with an 85% No Early Release Act*fn2 period of parole ineligibility. The appropriate assessments, fees and penalties were also imposed.
On September 20, 2005, Harjinder Joshi was working alone at his store, the Universal Deli, in Collingswood. At approximately 8:45 p.m., two men entered the store. One man stood near the middle of the store; the other man selected a soda and brought it to the counter where Joshi was standing. After Joshi told the man at the counter the price of the soda, the man pulled out a gun, went behind the counter, and ordered Joshi to open the cash registers. Joshi complied and the second man put the money into a blue bag.
A few moments later, a car pulled up to Joshi's store. Joshi remarked that a customer was approaching the store, and the two men fled. Joshi promptly called 9-1-1 and the police arrived within five minutes. Joshi described the incident and the assailants to the police, and informed them of the store's video camera security system. The officers viewed the videotape and took it with them.
On September 21, 2005, Detective Frank Lee of the Collingswood Police Department showed Joshi eight photographs. Joshi selected co-defendant Neil G. Hunter as the man who had brandished a gun during the incident at his store. Joshi signed the back of Hunter's picture and stated in writing: "Yes, this is the man, 200 percent sure." Detective Lee presented Joshi another photograph identification series on September 26, 2005, at which time Joshi selected defendant's photograph as the other man involved in the incident. In addition to signing the back of defendant's photograph, Joshi wrote: "I think this is the guy who took the money with the other guy."
Between these dates, the Collingswood Police Department conducted surveillance and arrested Hunter. In addition, the police went to the Pennsauken residence of co-defendant Rodney E. Gay's father. Gay's father consented to a search of the residence, and police found a blue cooler bag containing two toy handguns that had been altered to look like real guns. Defendant, Gay, and co-defendant Gene Edmonds, Jr., were arrested outside of the residence.
Following the arrests, Detective Edward Corell interviewed Edmonds. He admitted to participation in the robbery at Universal Deli along with two other men. Detective Corell then showed still photographs of the assailants caught on the store's videotape. From these photographs, Edmonds identified one of the men as "Butchy." Defendant was known to Edmonds as Butchy.
Detective Corell also interviewed defendant after his arrest. Once shown the videotape from the store, defendant made a comment to the effect of "I guess you got me now."
Prior to defendant's trial, Edmonds entered a guilty plea to conspiracy to commit first degree robbery and he received a fifteen-year term of imprisonment. Thereafter, at defendant's trial, Edmonds testified that he drove Hunter, whom he knew simply as "KK," and the man named "Butchy" to Joshi's deli in Collingswood. Edmonds dropped the men off, left the scene, and returned when Hunter waved him down.
During his testimony, Edmonds stated that he did not recall anything he told police following his arrest due to his intoxicated state. On the other hand, he did not deny making a post-arrest statement to police in which he discussed his plans with Hunter, Gay, "Butchy," and another man named Burt, to rob a jewelry store in Collingswood. He also identified defendant as "Butchy."
The State presented other witnesses who contradicted Edmonds' testimony. First, Joshi testified about the incident and positively identified defendant at trial as the man who accompanied Hunter. Detective Corell testified Edmonds identified defendant in a post-arrest statement as the other person who committed the robbery of Universal Deli.
On appeal, defendant raises the following arguments:
THE JUDGE'S FAILURE TO PROVIDE JURY INSTRUCTIONS ADEQUATELY EXPLAINING THAT DEFENDANT COULD BE FOUND GUILTY OF ROBBERY OR THEFT, AS AN ACCOMPLICE, ON THE BASIS OF HIS OWN MENTAL STATE, EVEN IF THE PRINCIPAL HAD THE MENTAL STATE FOR ARMED ROBBERY, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART I, PARS. 1, 9, 10. (Not Raised Below).
THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEA ENTERED BY AN ALLEGED ACCOMPLICE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART I, PARS. 1, 9, 10. (Not Raised Below).
A REMAND FOR RESENTENCING IS REQUIRED UNDER STATE V. PIERCE, 188 N.J. 155 (2006).
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
Defendant contends the trial judge did not adequately explain to the jury that defendant could be found guilty of the lesser offenses of second degree robbery or theft regardless of Hunter's culpability with respect to first degree armed robbery. Defendant contends that a properly instructed jury could have convicted him as an accomplice of theft or robbery rather than armed robbery. The State argues that the jury received instructions consistent with the Model Jury Charge. We review this argument pursuant to the plain error rule, Rule 2:10-2, because defendant did not object to this portion of the charge at trial.
N.J.S.A. 2C:15-1a governs the offense of robbery. It provides: "A person is guilty of robbery if, in the course of committing a theft, he... [i]nflicts bodily injury or uses force upon another; or... [t]hreatens another with or purposely puts him in fear of immediate bodily injury." Robbery is elevated from a second degree crime to a first degree crime if the person "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b.
An accomplice may be guilty of first degree armed robbery even if the accomplice did not personally possess or use the weapon during the commission of the robbery. State v. White, 98 N.J. 122, 130 (1984). In such instances, the "accomplice has committed the same crime as the individual who possessed or used the [weapon] if the accomplice had the purpose to promote or facilitate" the armed robbery. Ibid. On the other hand, it is also "possible for an accomplice to be guilty of [second degree] robbery and for his compatriot to be guilty of [first degree] armed robbery." Id. at 131. In these cases, the accomplice's state of mind will differ from the armed individual's "purpose" to commit the armed robbery. State v. Bohannan, 206 N.J. Super. 646, 650-51 (App. Div. 1986). Recently, the Supreme Court reiterated that a person convicted as an accomplice may be convicted of the same offense as the principal actor as long as he shares the intent of the other at the time the acts occurred. State v. Whitaker, ___ N.J. ___, ___ (2009) (slip op. at 2, 17-18).
Defendant relies heavily on State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993), in which this court explained the trial judge's "obligation to 'carefully impart to the jury the distinctions between the specific intent required for the grades of the offense'" when the "accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury." (citing State v. Weeks, 107 N.J. 396, 410 (1987)). In Bielkiewicz, this court reversed the defendant's murder conviction due to the trial court's inadequacy in instructing the jury on accomplice liability for murder. Id. at 524-25. In particular, the trial court neglected to inform the jury that it could find the defendant guilty as an accomplice to the lesser charges of aggravated manslaughter, manslaughter, or assault. Id. at 531. The trial court "did not even mention accomplice liability in instructing the jury with respect to these lesser included offenses." Ibid. Furthermore, the court failed to instruct the jury that it could find the principal guilty of murder while also finding the accomplice guilty of a lesser offense. Ibid. In fact, the trial court had implied the contrary when it instructed the jury that "one cannot be held as an accomplice unless you find as a fact that he shared the same purpose required to be proven against the person who actually committed the act." Ibid.
Similarly, defendant also relies on State v. Harrington, in which this court also found reversible error in the jury instructions regarding accomplice liability. 310 N.J. Super. 272, 277-78 (App. Div.), certif. denied, 156 N.J. 387 (1998). Specifically, "the jury was not told that parties who participate in a criminal act may be guilty of different degrees of offense." Id. at 278. Likewise, the "trial court charged the jury that it could not find defendant guilty as an accomplice unless it found that he harbored the same state of mind as the actual perpetrator." Ibid. Thus, parts of the instructions implied "that accomplice liability must be predicated upon a finding that the accomplice had the same intent as the principal." Id. at 279.
Following this court's decision in Bielkiewicz, the Model Jury Charge was amended to address similar circumstances. Of particular relevance to the present case, the amended Model Jury Charge for accomplice liability included the following paragraphs:
Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his/her own state of mind and not anyone else's.
In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his/her own state of mind and no one else's.
Here, the trial judge omitted these paragraphs. We hold, however, that this omission is not erroneous because other portions of the charge clearly and forcefully informed the jury that it must specifically determine defendant's state of mind and that his state of mind could differ from the principal.
Furthermore, the judge explained the consequences of that finding concerning the participants' varying states of mind.
Indeed, the charge as given mirrored the majority of the Model Jury Charge on accomplice liability. In particular, the trial judge instructed the jury with regard to differing levels of responsibility in the following instances:
[T]his responsibility as an accomplice may be equal and the same as he who actually commits the crime or there may be responsibility in a different degree depending on the circumstances as you find them to be.
An accomplice may be convicted on proof of the commission of a crime or of his complicity therein even though the person who is claimed -- who it is claimed committed the crime has not been prosecuted or has been convicted of a different offense or degree of offense or has immunity from prosecution or conviction or even if he was acquitted.
Remember that this defendant can be held to be an accomplice with equal responsibility only if you find it's a fact that he possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act. In order to convict the defendant as an accomplice to the specific crime charged, you must find that the defendant had the purpose to participate in that particular crime. He must act with the purpose of promoting or facilitating the commission of the substantive crime with which he is charged.
As I have previously indicated to you, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice of Neil Hunter with full and equal responsibility for the specific crime charged.
If you find the defendant guilty of this specific charge, then you will not need to consider any lesser charge and I'll be more specific in a second.
If however, you find the defendant not guilty of acting as an accomplice of Neil Hunter on the specific crime charged, then you may wish to consider whether the defendant did act as an accomplice of Mr.
Hunter, but with the purpose of promoting or facilitating the commission of some lesser offense. (Emphasis added.)
In short, the charge as delivered plainly informed the jury that defendant could be found guilty of a different offense than Hunter. Unlike Harrington, the trial judge explained the elements of armed robbery and the lesser included offenses in the context of accomplice liability. Moreover, the trial judge never implied that defendant and Hunter must have had the same intent during the commission of the September 20, 2005 crime.
Furthermore, in Harrington, the evidence could have allowed "reasonable persons [to] differ in their perceptions concerning [the defendant's] exact role and level of participation in the criminal events." 310 N.J. Super. at 280. That is not this case. As captured on videotape and as related by the victim, defendant is seen taking the money after Hunter brandished the gun and demanded it. Finally, the trial judge provided an explanation of the facts as they related to the particular offenses.
Defendant also argues that the trial judge omitted a limiting instruction to guide the jury in its consideration of the testimony of Edmonds, who had pled guilty to conspiracy to commit first degree robbery. Defendant contends that the trial judge should have informed the jury that his guilty plea could not be used as substantive evidence against defendant. This issue, too, must be considered in accordance with the plain error rule as defendant did not object to this portion of the charge at trial.
Here, the judge instructed the jury on the manner in which it should evaluate the credibility of witnesses. Although the judge did not specifically inform the jury how it should treat a guilty plea by a witness, this is not a case in which the cooperating witness is the only witness to implicate defendant in the robbery, or a case in which the judge provided information to the jury about the guilty plea process that had the effect of bolstering the credibility of the cooperating witness as in State v. Murphy, 376 N.J. Super. 114, 123 (App. Div. 2005). See also State v. Adams, 194 N.J. 186, 209 (2008) (omission of limiting instruction harmless when record contains other evidence of the defendant's participation in the charged offense). Under the circumstances of this case, we conclude the trial judge did not err, much less commit plain error.
Finally, defendant argues that the trial judge utilized the wrong standard for imposition of the extended term and his term is excessive. Defendant argues that the judge's decision to impose an extended term was informed by his prior record of criminal offenses and the need to protect the public. He argues that this analysis is contrary to State v. Pierce, 188 N.J. 155 (2006).
Defendant was sentenced on April 5, 2007; therefore, the rule announced in Pierce governed the extended term decision. It is not entirely clear from the record that the judge departed from the Pierce analysis. The record demonstrates that the prosecutor, defense attorney and judge were aware of Pierce and its impact on the Dunbar*fn3 discretionary extended term analysis. Moreover, the term fashioned by the judge reflects the argument advanced by the State that the only period of time that defendant has remained free of newly-lodged criminal charges is when he is incarcerated. This reasoning is consistent with the revised Pierce analysis for fashioning sentences for discretionary extended terms, that is, the need to protect the public informs the term rather than the decision to impose an extended term. Pierce, supra, 188 N.J. at 168.
Finally, applying the highly deferential standard of review that guides our review of a sentence, State v. Roth, 95 N.J. 334, 364-66 (1984), we discern no basis to disturb the sentence imposed.