June 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK THOMAS BOURNE A/K/A MARC ELLIOT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-07-0688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2009
Before Judges Grall, Messano and LeWinn.
Defendant Mark Thomas Bourne was tried to a jury on charges arising from the robbery of Carlos Cedeno and Edwin Diaz and the flight that followed. His co-defendant, Mark Williams, pled guilty prior to defendant's trial. A jury acquitted defendant of both charges of robbery, N.J.S.A. 2C:15-1; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a. The jury found defendant guilty of two counts of fourth-degree theft of movable property with a value greater than $200 and less than $500, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:20-2b(3), which were submitted to the jury as lesser-included offenses of robbery; second-degree eluding by creating a risk of injury or death, N.J.S.A. 2C:29-2b; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. Defendant was sentenced to concurrent four-year terms of incarceration on two counts of theft in the third-degree, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:20-2b(2)(d); a consecutive eight-year term, subject to a two-year period of parole ineligibility, on eluding, and a concurrent one-year term for resisting arrest.*fn1
We reverse defendant's convictions for third-degree theft and remand. The judgment must be amended to reflect convictions for fourth-degree theft in conformity with the jury's verdict, and defendant must be sentenced accordingly. We otherwise affirm defendant's convictions and sentences.
In the early morning hours of September 11, 2002, Cedeno and Diaz parked their car on a well-lighted section of Elizabeth Avenue in Elizabeth. As they left their car, they were approached by two men - one about six feet tall and one about five feet and four inches tall - who demanded "everything" they had.
The shorter of the two stuck a gun into Diaz' mouth and said, "don't look at me." Diaz felt the gun's cold metal against his teeth. The man snatched the earrings off of Diaz' ears, ripped the chain from his neck, and took his cellphone, wallet, money, watch and a lighter.
The taller man approached Cedeno, who later described the perpetrator as being in his mid to late twenties and resembling "Lennox Louis" in skin color and hairstyle - braids wrapped up. The man grabbed Cedeno by the arm and demanded all of his money. When Cedeno took out his wallet to comply, the man grabbed it, took a pair of glasses from Cedeno, "yanked [Cedeno's] earrings out of [his] ears" and took a chain from around his neck. He also took Cedeno's cellphone and car keys. By Diaz' and Cedeno's estimates, the encounter lasted for a period between two and five minutes.
Cedeno stood face-to-face and about a foot away from the man who robbed him, and got a good look at the robber's face and what he was wearing during the incident. Although the man never showed or mentioned a weapon, from the way the man held his hand under his shirt, Cedeno thought he might have one.
After taking their victims' belongings, the men left in a burgundy-colored Expedition parked about twenty-five feet away. Neither Cedeno nor Diaz could say which man took the driver's seat, but Diaz got the license plate number of the car.
Shortly after the men left, Officer Brian Clancy drove by. Cedeno and Diaz flagged Clancy down, told him what happened, described the Expedition and gave him the license plate number.
Clancy relayed the description. Cedeno and Diaz stayed with Clancy in his patrol car while other officers looked for the Expedition.
Officer Michael Maulshagen spotted the car about eight blocks from the robbery scene. He took up pursuit and saw that something was thrown out of the passenger-side window.
In the meantime, Officer Ina Perez and her partner had attempted to block Madison Avenue with their patrol car. A large SUV speeding toward the patrol car passed around it.
Perez did not follow; instead, having heard a dispatch reporting that items were thrown from the car, she walked along Madison Avenue and found a black leather wallet containing Cedeno's identification and money.
Maulshagen continued his pursuit, which required him to reach a speed of eighty-five miles per hour to follow the Explorer through the streets of Elizabeth and then toward Newark by way of Routes 1 and 78. Although traffic was light, the driver of the Expedition weaved in and out of traffic. The pursuit ended on a dead-end street. Defendant leaped out of the driver-side door as the vehicle was still rolling and ran to a nearby backyard where he was apprehended. Williams was still in the front passenger seat of the Expedition when he was arrested. The rear window of the Expedition had been shot out during the chase, but there was no evidence as to who was responsible.
During the chase, Cedeno and Diaz heard the police dispatchers reporting that a car matching the description they gave had been spotted and followed and property that had been thrown out of the window had been recovered. They also heard that the occupants had been arrested.
The men were brought to Clancy's car to permit the victims to determine whether or not they were the men who had robbed them. According to Clancy, who was the only witness to testify at the pre-trial hearing on identification, he told Diaz and Cedeno that the police were bringing over some individuals who may or may not have been involved in the robbery.
Defendant and Williams arrived in separate patrol cars and in handcuffs. The area was lighted, and the suspects were taken separately to the police car in which Cedeno and Diaz were seated. Cedeno and Diaz identified the suspects by looking at them through the rear window of the patrol car. Other than defendant and Williams, there were no black males present. Both Cedeno and Diaz identified defendant and Williams as the perpetrators and were "positive" of their identifications. They made those identifications within an hour of flagging Clancy down.
Recognizing that one-on-one showup identifications are inherently suggestive, the trial judge considered the brief period of time that elapsed between the incident and the identification, that the victims were able to provide the police with the license plate number and a description of the car, that items taken from the victims were thrown from and found in the car the victims described, the lighting at the scene of the crime and that Clancy's statements were not suggestive. The judge concluded that the identifications were sufficiently reliable to permit testimony about them.
At trial, Clancy identified defendant as one of the two men arrested. Although both Cedeno and Diaz testified about the out-of-court identifications and their certainty at that time, neither identified defendant at trial. They also confirmed that property recovered by the police belonged to them.
Co-defendant Williams testified on behalf of the State. He denied that defendant participated in the robbery but confirmed that defendant was driving when they were arrested. According to Williams, Cedeno and Diaz gave them their property because they were intimidated when they saw defendant, a much larger man, get out of the car and walk toward them. He said that neither he nor defendant made any demands.
Defendant raises these issues on appeal:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE PRETRIAL SHOWUP IDENTIFICATION AS IT WAS IMPERMISSIBLY SUGGESTIVE AND NOT OTHERWISE JUSTIFIED BY EXIGENT CIRCUMSTANCES AND THUS VIOLATED DEFENDANT'S DUE PROCESS RIGHTS UNDER THE FEDERAL AND STATE CONSTITUTIONS.
II. THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT THE JURY REGARDING THE ELEMENTS OF THEFT [FROM] A PERSON WHICH THE TRIAL COURT MOLDED TO ELEVATE THE CRIME FROM A FOURTH TO A THIRD DEGREE CRIME.
III. DEFENDANT[']S CONVICTION FOR ELUDING IN THE SECOND DEGREE WAS AGAINST THE WEIGHT OF THE EVIDENCE.
IV. DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND THE COURT IMPROPERLY BALANCED AGGRAVATNG AND MITIGATING FACTORS AS REQUIRED BY LAW.
We begin our discussion of defendant's objection to the admission of the out-of-court identifications made by Cedeno and Diaz by recognizing that we must afford "very considerable weight" to the trial judge's findings on admissibility. State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973). In this case, as noted above, the trial judge concluded that there was sufficient evidence of reliability to warrant admission of the evidence.
In State v. Herrera, 187 N.J. 493, 503 (2006), the Supreme Court set forth the principles governing admissibility of outof-court identifications in the context of a case in which the police arranged a showup.
In Manson v. Brathwaite, 432 U.S. 98, 99, 97 S.Ct. 2243, 2245, 53 L.Ed. 2d 140, 144 (1977), the Court again was presented with the question whether, apart from any consideration of reliability, a pretrial identification procedure that was impermissibly suggestive should be excluded.... The Supreme Court concluded that "reliability is the linchpin in determining the admissibility of identification testimony." Id. at 114, 97 S.Ct. at 2253, 53 L.Ed. 2d at 154. The Supreme Court explained that the following factors should be considered in determining reliability:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Ibid.]
There is no doubt that the Court applied Manson's two-step analysis to resolve the admissibility of the identification made during the showup. Herrera, supra, 187 N.J. at 504-09. The Court "start[ed] with the commonsense notion that one-on-one showups are inherently suggestive," because the victim is shown only one suspect who is generally in custody. Id. at 504. But the Court further reasoned that, without more, "a showup is not so impermissibly suggestive to warrant," a balancing of the corrupting effect of the procedure against the Manson factors. Ibid. The Court noted, however, "that only a little more [in addition to use of a showup procedure] is required... to tip the scale toward impermissibly suggestive." Ibid.
In this case, there was "a little more" in addition to the showup. Cedeno and Diaz were sitting in Clancy's car during the chase and heard transmissions reporting the progress, including the recovery of some of their property and the apprehension of the occupants of a car matching the description of the vehicle that they gave to Clancy. Thus, application of the Manson factors was necessary.
At the hearing on admissibility of the identifications, the State offered no testimony, apart from the fact that the area was well-lighted, that would permit the judge to draw any inferences about the opportunity Diaz and Cedeno had to observe the perpetrators at the time of the crime. Similarly, there was no evidence that either victim had given Clancy a description of the perpetrators. Thus, the judge could not assign any weight to the first two Manson factors.
Nonetheless, the evidence adduced at trial demonstrated Cedeno had ample opportunity to observe defendant and make observations upon which he relied in identifying him at the time of the showup. In Herrera, the Court considered evidence presented at trial along with evidence presented at the pre-trial hearing in evaluating the Manson factors in light of the totality of the circumstances. 187 N.J. at 506-09. Taking that approach, there is evidence relevant to the first two of the Manson factors in the trial record. The victims testified about their opportunity to observe the perpetrators while the crime was being committed and about observations made at the time of the crime that led them to be certain about their identifications.
In addition, there was persuasive evidence to support the remaining Manson factors: Clancy testified that both Cedeno and Diaz were "positive" of their identification, and the showup took place within about one hour of the criminal episode.
Courts must consider the Manson factors in the totality of the circumstances. Id. at 506-07. In Herrera, the Court cited State v. Wilson, 362 N.J. Super. 319, 327 (App. Div. 2003), certif. denied, 178 N.J. 250 (2003), with approval. In Wilson the panel considered the detailed description of the car given by the victim and the evidence corroborating that description in evaluating the reliability of the identification. Id. at 327.
In this case, as in Wilson, there is significant evidence corroborating the reliability of the identifications. That evidence includes the property stolen from the victims that was either recovered in or thrown from the Expedition. The car was of same color and type as the one described by the victims, and it bore a license plate with the number the victims gave to the police.
On this record, we cannot conclude that the trial judge's determinations were wide of the mark. There "is sufficient credible evidence in the record to support the findings." State v. Adams, 194 N.J. 186, 203 (2008).
Defendant urges us to adopt a new method for assessing the admissibility of identification evidence. The Supreme Court considered that question in Herrera and Adams, and declined to address the issue because the defendant had not presented "current research" in support of his request to the trial court. Herrera, supra, 187 N.J. at 501; see Adams, supra, 194 N.J. at 200-01. The state of the record in this case is no different, and the Court has ordered development of a proper record relevant to the standard for assessing the reliability of identification evidence. State v. Henderson, N.J. Supreme Court Order No. A-8 (Feb. 26, 2009), 2009 N.J. Lexis 45. Thus, we will not address the claim.
We turn to consider defendant's objections to his convictions on two counts of theft in the third-degree. It is clear that the judge erred in molding the jury's verdict from guilty of two counts of fourth-degree theft to two counts of guilty of theft in the third-degree.
In instructing the jury on the elements of theft as a lesser-included offense of robbery, the trial court stated:
A person is guilty of theft, if he unlawfully takes or exercises unlawful control over, moveable property of another with the purpose to deprive him of the property.
The State must prove each of the following elements beyond a reasonable doubt. Here they are.
One, that the defendant knowingly took or unlawfully exercised control over moveable property.
Two, that the moveable property was that of another.
Three, that the defendant's purpose was to deprive the other person of the moveable property.
The court also directed the jurors that if they found defendant guilty of theft, then they were required to determine the value of the property taken, and whether the value of the property had a value less than $200, between $200 and $500, or between $500 and $75,000. The jurors were given no instruction on the elements of third-degree theft from the person, N.J.S.A. 2C:20-2b(2)(d), and they concluded that defendant was guilty of theft and that the property involved had a value of at least $200 but less than $500, which is a crime of the fourth degree. N.J.S.A. 2C:20-2b(3).
After the jury was discharged, the State urged the judge to enter convictions on two counts of third-degree theft, contending that the evidence compelled the conclusion that these thefts were thefts from the person. N.J.S.A. 2C:20-2b(2)(d).
The trial judge, observing that theft from the person is a crime of the third degree, agreed.
The New Jersey Supreme Court has "consistently held that incorrect charges on substantive elements of a crime constitute reversible error." State v. Rhett, 127 N.J. 3, 7 (1992). "'[F]ailure to charge the jury on an element of an offense is presumed to be prejudicial error....'" State v. Burgess, 154 N.J. 181, 186 (1988) (quoting State v. Federico, 103 N.J. 169, 176 (1986)). The question is of no lesser import when the instruction omitted is relevant to the grade of the crime. When "'a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact - no matter how the State labels it - must be found by a jury beyond a reasonable doubt.'" State v. Natale, 184 N.J. 458, 473 (2005) (quoting Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 2439, 153 L.Ed. 2d 556, 572 (2002)).
The State suggests that this court should deem harmless the omission of a jury instruction on a fact that, as a matter of constitutional imperative, must be found by the jury beyond a reasonable doubt. We reject that argument. What the judge did, at the State's urging, was the equivalent of directing a verdict of guilty. That is not permitted. State v. Ragland, 105 N.J. 189, 218 (1986).
The State attempts to equate what was done in this case with the molding of a verdict approved in State v. Farrad, 164 N.J. 247 (2000). The language from that opinion upon which the State relies does not support its position. The Court held:
A guilty verdict may be molded to convict on a lesser-included offense even if the jury was not instructed on that offense if "(1) defendant has been given his day in court, (2) all the elements of the lesser included offense are contained in the more serious offense and (3) defendant's guilt of the lesser included offense is implicit in, and part of, the jury verdict." State v. Hauser, 147 N.J. Super. 221, 228 (App. Div.), certif. denied, 75 N.J. 27 (1977). [164 N.J. at 266.]
In this case, "defendant's guilt of the lesser-included offense [of theft from the person was not] implicit in, and part of, the jury verdict." Ibid. Because the jury found defendant not guilty of robbery and guilty of two counts of fourth-degree theft of movable property, all of the elements of theft from the person are not included. A conviction for theft from the person requires proof that the property was within the custody and control of the victim at the time of the theft. State v. Link, 197 N.J. Super. 615, 618 (App. Div. 1984) (in a pre-Natale case, concluding that the failure to give the jury instruction elaborating on the meaning of "theft from the person" was harmless error), certif. denied, 101 N.J. 234 (1985).
Accordingly, the verdicts do not imply anything about whether the property was taken from the person. To state the obvious, theft from the person is not a lesser-included offense to theft of movable property. Although the constitutional defect in the instruction cannot be cured by the fact that the evidence is one-sided and persuasive, it is worth noting that Williams' testimony, which was presented by the State, could have given rise to a reasonable doubt as to whether defendant was guilty of theft from the person.
Similarly devoid of merit is the State's reliance, in this context, on State v. Marrero, 148 N.J. 469, 496 (1997), for the proposition "that the New Jersey Supreme Court has directed that judicial reluctance to reverse for plain error is heightened when the complaint is 'an incomplete instruction rather than an affirmative misstatement of the law.'" Marrero involved a limiting instruction on the proper consideration of evidence of other crimes or wrongs. Id. at 477, 494. On the assumption that the State has not advanced an argument that its representative deems to be without merit, it is necessary to stress that the State is wrong to argue that Marrero permits a trial judge to presume that the jury found a fact essential to the State's proof of guilt. That proposition cannot be squared with the defendant's right to trial by jury; and without doubt where findings of fact relevant to the grade of the crime are at issue, errors of omission are no less significant than errors of commission.
We also are compelled to emphasize that the State's reliance on the harmless error doctrine in this case is misplaced. Here, the State is the party that failed to take action before its case was submitted to the jurors without any reference to theft from the person. It is the State that failed to ask the judge to submit the case to the jury on that theory. The State did not raise the issue until the jury rejected the State's theory for theft in the third degree based upon the amount involved. At that point, it was too late for the State to correct its course. The doctrine of plain error does not favor the State in this instance.
For the foregoing reasons, defendant's convictions for third-degree theft are reversed. The matter is remanded to the trial judge for correction of the judgment of conviction to conform with the verdict the jury returned - two convictions for fourth-degree theft, and convictions for second-degree eluding and fourth-degree resisting arrest.
After review of the record in light of the issues raised in Points III and IV of defendant's brief, we conclude that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part; reversed in part and remanded for re-sentencing and correction of the judgment of conviction in conformity with this opinion.