July 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATHANIEL SMITH AKA CORRUPT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 20, 2010
Before Judges Carchman, Parrillo and Lihotz.
Tried by a jury, defendant Nathaniel Smith was convicted of conspiracy to commit armed burglary/robbery, N.J.S.A. 2C:5-2 (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a) (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count seven). He was acquitted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1 (count four); and second-degree armed burglary, N.J.S.A. 2C:18-2 (count five). Defendant moved to set aside the verdict contending it was invalid because he was acquitted of the predicate robbery and burglary offenses, but the trial judge denied relief, reasoning that the verdict was merely "inconsistent." Granting the State's motion for an extended term, N.J.S.A. 2C:44-3(a), the judge sentenced defendant to thirty years in prison with a thirty-year minimum term on the felony murder count; a concurrent ten-year term on the conspiracy charge; and a concurrent twenty-year term with a ten-year mandatory minimum on his conviction for possession of a weapon for an unlawful purpose, into which count six was merged.
Defendant's conviction arises from the murder of Trevor Lewis on May 22, 2006. According to the State's proofs, earlier that evening, pursuant to a pre-arranged plan, defendant picked up Laquanna Stewart and Kendra Davis at their Jersey City homes and drove to Lewis' apartment, where Lewis buzzed the women inside around 8:30-9:00 p.m., while defendant remained outside in his car. Once inside Lewis' apartment, the three drank alcohol and smoked marijuana for about thirty to forty-five minutes. Stewart also ingested angel dust and ecstasy. Eventually, Lewis and the two women retreated to the bedroom where both women undressed and began to perform sexual acts on Lewis, who had earlier agreed to pay for a threesome tryst. Hours later, Lewis was found dead, lying face down on his bedroom floor having been shot three times, twice in the torso and once in the head.
Although both Stewart and Davis admitted to being inside the apartment when Lewis was shot, each denied shooting him and claimed that defendant, who supposedly snuck into the apartment while Lewis was distracted and engaged in the threesome, shot Lewis in a botched burglary plot. Originally indicted with defendant, Stewart and Davis eventually pled guilty to a lesser offense and testified at defendant's trial.
Stewart, who was eighteen-years old at the time, had known Lewis well, having previously bought marijuana from him and exchanged sex with him for either money or marijuana. In fact, she previously had asked Lewis for $900 to pay her mother's rent but he refused, although he at one time had offered her money in exchange for a threesome. Sometime later, Stewart decided to take Lewis up on his offer and agreed to a threesome as part of a plan to get paid between $200-250 and, unbeknownst to Lewis, to steal a bucket of marijuana from his apartment during the tryst. Stewart then contacted defendant, with whom she had been acquainted, to help execute this plan.*fn1 She met with defendant in Jersey City's Audubon Park to discuss the details of the plan, which called for defendant to provide the second woman for the threesome, sneak into Lewis's apartment during the threesome, grab a bucket of marijuana and leave. The marijuana was to be split evenly among the parties.
According to Stewart, while she and Davis were in the bedroom with Lewis, and defendant remained downstairs, she "chirp[ed]" him on his cell phone as a signal that it was time for him to enter the apartment. Thereafter, Lewis must have heard defendant enter because he jumped out of bed and walked towards the living room. Stewart heard Lewis confront someone before he ran back into the bedroom with defendant in pursuit. Upon entering the bedroom, defendant allegedly shot Lewis three times. Lewis then fell face first onto the floor next to his bed. Stewart was surprised by defendant, who was wearing all black, a ski mask and had a gun, as it was not part of their plan.
According to Stewart, defendant then fled, and the two women, after getting dressed, met up with defendant in his car. After dropping off the women at their respective residences, defendant called Stewart asking her to return to Lewis' apartment with him, but she refused.*fn2
Davis acknowledged knowing defendant for about six months, engaging in "flings" with him and having previously asked him for money. Defendant held off on the request until May 22, when he brought Davis and Stewart to Lewis' apartment and told Davis "to go [to this] guy['s] house . . . [and] . . . have a sexual encounter with the individual for money." According to Davis, during the encounter, defendant stood "in front of [Lewis] pointing a gun," and then shot Lewis three times.*fn3 After fleeing Lewis' apartment and entering defendant's vehicle, Davis observed a "tub of marijuana" in the backseat of the car, but supposedly declined her share.
Both Stewart and Davis claimed to be scared of defendant. Davis said defendant threatened her after the shooting: "[h]e said if you don't get in the car you'll know what's going to happen."
On April 10, 2007, defendant gave a statement to Detective Javier Toro of the Hudson County Prosecutor's Office. He at first denied knowing either Stewart or Davis or having any knowledge of the murder. Eventually, however, defendant admitted that he drove Davis and Stewart to Lewis's apartment, knew only that Stewart went there to get money, left the scene to go to a gas station with another individual and returned after being contacted by Stewart. Upon arrival, defendant saw the women with a bucket of marijuana, which Stewart explained she "got this nigga for this weed." Defendant said he knew Stewart had a gun before she entered the apartment, but he didn't know "what she did with it[,]" and they didn't tell him "they" shot Lewis "till the next day." Defendant was re-interviewed on April 12 and gave a similar account, admitting that he knew the victim had been killed, and that he had driven the women to and from the victim's apartment.
Defendant's cousin, Graceland Powell, testified for the defense. She had been incarcerated with Stewart between November 2007 and April 2008 and admitted to two prior drug convictions. She claimed that Stewart admitted shooting "the guy" because she panicked and became nervous when the victim "heard Nathaniel come in the house," and that it was "a robbery that went bad." Powell also overheard Stewart on the phone say that she was going to "get [defendant] touched" or "hurt" for not "taking the weight for it." Stewart, on the other hand, denied talking to Powell about the incident and claims Powell delivered a threatening message to her from defendant, which led to a physical altercation between the two women.
At the close of evidence and following the court's instructions, the jury returned its verdict, finding defendant guilty of conspiracy to commit burglary and/or robbery, felony murder, unlawful possession of a weapon and possession of a weapon for an unlawful purpose, but not guilty of murder, burglary and robbery. In denying defendant's motion for judgment of acquittal, the judge noted:
The case at bar is distinguished from [State v. Grey, 147 N.J. 4 (1996),] because here the jury's instructions on felony murder were correct, however, the jury chose not to follow the instruction.
Here the jury was instructed that conspiracy could not be a basis for a conviction of felony murder. So unlike G[rey], this seems to be a case in which the jury having properly reached its conclusion on the compound offense through mistake, compromise, or lenity arrived at an inconsistent conclusion on the lesser offense.
One thing is certain. This is not a case in which the inconsistency in the verdict is undoubtedly due to the jury's erroneous belief that it could convict defendant of felony murder based upon the conspiracy count.
This is a case in which the reason for the inconsistent verdict is not clear. As such, I am barred from speculating as to whether the verdicts resulted from jury's lenity, compromise, or mistake, not adversely affecting the defendant.
In regard to the felony murder . . . this Court is constrained to accept the verdict of guilty handed down in this case. On appeal, defendant raises the following issues:
I. The finding of not guilty on the robbery and burglary charges, combined with critical omissions from the jury charge on defendant's responsibility for these crimes, renders defendant's felony murder conviction invalid as a matter of law, warranting vacation here (partially raised below).
II. The trial court should have suppressed defendant's pretrial statements to police because his Miranda and Fifth Amendment rights were violated.
III. Even if defendant's statements were properly admitted, permitting the jury to have the taped, oral statements with a tape player in the jury room during deliberations, without cautionary instructions, violated State v. Burr.
IV. The prosecutor's references to defendant's alleged prior bad acts, alias, unemployment, and other improper comments before the jury unfairly prejudiced defendant in the jury's eyes and denied him a fair trial.
V. Defendant's acquittal of the robbery and burglary charges erased the unlawful purpose charged by the court in the possession of a weapon for an unlawful purpose charge under Count 7, warranting vacation of defendant's weapons conviction (plain error).
VI. Defendant's sentence is excessive and improper.
We reverse, finding that the challenged remarks by the prosecutor, cumulatively considered, deprived defendant of a fair trial. With specific reference to defendant's felony murder conviction, we also find plain error in the trial court's failure to instruct the jury on accomplice liability, which, in our view, had the clear potential to lead the jury to believe defendant could have been found guilty of that charge based on some conduct or state of mind lesser than that required for a conviction on the predicate robbery and/or burglary charges.
Defendant contends the prosecutor made inappropriate remarks during opening and closing statements and elicited improper testimony that cumulatively denied him a fair trial. He points to four separate incidents: 1) using defendant's street name "Corrupt"; 2) eliciting testimony from Stewart that defendant was in jail; 3) referring to the fact that defendant was "broke" and "on welfare" as a motive for committing the offenses; and 4) eliciting testimony from both Stewart and Davis that they were "scared" of defendant to explain inconsistencies in their testimony and prior out-of-court statements without the court providing a limiting jury instruction. We agree that cumulatively considered, the challenged references had the clear capacity to prejudice defendant's right to a fair trial.
Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). Accordingly, the prosecutor's statements must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996); State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958).
Considerable leeway is afforded to prosecutors in giving their closing arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (finding that the prosecutors multiple assertions of the witness's veracity was impermissible, where credibility of the witness's testimony was the central issue in the case). "Although generally limited to commenting on the evidence and to drawing any reasonable inferences supported by the proofs, a prosecutor may nonetheless make 'a vigorous and forceful presentation of the State's case.'" State v. Dixon, 125 N.J. 223, 259 (1991) (quoting Bucanis, supra, 26 N.J. at 56); see also State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001).
In general, if a defendant does not object to prosecutorial remarks, they will not be regarded as prejudicial. State v. Josephs, 174 N.J. 44, 124-25 (2002); Timmendequas, supra, 161 N.J. at 576. "[A] failure to make a timely objection indicates defense counsel's belief that the prosecutor's remarks were not prejudicial at the time they were made." Josephs, supra, 174 N.J. at 125. However, the lack of a contemporaneous objection does not obviate a finding of reversible error. State v. Goode, 278 N.J. Super. 85, 91-92 (App. Div. 1994). Reversal of a conviction is warranted if the conduct is so egregious that defendant was denied his right to a fair trial. Ramseur, supra, 106 N.J. at 322-23; see State v. Papasavvas, 163 N.J. 565, 626 (2000) (explaining that "[b]ecause defense counsel did not object to any of the prosecutor's . . . remarks . . . now claimed to constitute prosecutorial misconduct, defendant must demonstrate plain error to prevail" (internal citation and quotation omitted)).
"[P]articular remarks must be appraised in the setting of the whole trial." State v. Bruce, 72 N.J. Super. 247, 252 (App. Div. 1962). "[E]ven when an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008); see also State v. Koskovich, 168 N.J. 448, 540 (2001) (holding that cumulative error warranted reversal of death sentence regardless that no individual error warranted reversal). To warrant reversal of a defendant's conviction, a court must find that "the errors had a disproportionately harmful effect in defendant's trial" sufficient to prejudice "the fairness of defendant's trial and, therefore, cast doubt on the propriety of the jury verdict that was the product of that trial." Jenewicz, supra, 193 N.J. at 473.
During his opening statement, the prosecutor stated "Nathaniel Smith also known as Corrupt", to which defense counsel objected. At sidebar, the judge explained why he overruled defendant's objection:
I believe, and I'm not sure I - on the record, but if the victims are going to identify him as Corrupt as a nickname, then, you know, the opening statement ties up what they said to the witness, I would - which I clearly did, but at this juncture since I'm told that that's what the victims knew the person by I'll allow it.
Additionally, Stewart testified that she knew defendant as "Corrupt," and during summation, the prosecutor stated: "[co-defendant] got involved with a corrupt individual, he lives up to his name, by the way."
"The use of defendant's street nickname during trial cannot serve as a per se predicate for reversal." State v. Paduani, 307 N.J. Super. 134, 146 (App. Div.), certif. denied, 153 N.J. 216 (1998). "[T]he admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt." State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.), certif. denied, 111 N.J. 609 (1988). In Paduani, supra, we found the use of the defendant's street nickname, "Marijuana[,]" during his trial for aggravated assault, was properly admitted and potential prejudice was prevented by the court's limiting instruction to the jury regarding its use. 307 N.J. Super. at 146-47. Relying on our decision in Salaam, in Paduani we noted that the "testimony was clearly relevant because each defendant was identified to the police by use of a nickname" and "defendant ha[d] pointed to no tangible form of prejudice attributable to the use of his nickname during the trial and [the court's] independent review of the record reveals none." Id. at 147.
Here, although ostensibly admitted to show Stewart's familiarity with defendant, there was no real or genuine issue at trial related to either defendant's identity or his relationship with Stewart. Thus, the repeated reference to defendant's nickname "Corrupt" was entirely gratuitous and prejudicial since the moniker was highly suggestive of prior criminal or bad conduct on the part of defendant. See N.J.R.E. 404(b). Indeed, the prosecutor reinforced this impression in his closing argument when he remarked that Davis "got involved with a corrupt individual [who] lives up to his name." This comment, we conclude, was offered for no other purpose than "intentionally . . . as indicia of [defendant's] guilt." Salaam, supra, 223 N.J. Super. at 73.
The remark unfortunately was neither isolated nor benign, but magnified by Stewart's "unexpected" blurting out, on direct examination, that defendant "had been to jail." Although the judge sustained defense counsel's objection and instructed the jury to "totally disregard" the comment, the damage had already been done. The danger of indelibly branding defendant as a bad person was very real, State v. G.S., 145 N.J. 460, 468 (1996), and the inherently prejudicial nature of this combination of improper remarks cast serious doubt, in our view, on the jury's ability to follow the court's curative instruction and carefully consider the elements of the charged offenses. See State v. Stevens, 115 N.J. 289, 309 (1989).
Adding to this strong potential for prejudice is the prosecutor's elicitation on re-direct examination of the State's witnesses that they feared defendant because "he probably would try to do something, get us hurt or something." Although supposedly offered to explain prior inconsistencies in their statements made to the police after the shooting, it was never demonstrated exactly in what respect the witnesses' so-called fear of defendant caused them initially to be less than candid in their account of the incident. But even if properly admitted, it went unaccompanied by any limiting instruction from the court, informing the jury that such testimony may be used only for the specific purpose of assessing witness credibility and not as substantive proof of guilt. In the absence of such a limiting instruction, the jury was free to use this testimony to improperly infer defendant was a dangerous or violent person.
Compounding these errors, the prosecutor referred in summation to defendant's impoverishment and receipt of welfare. As justification, the State points to defense counsel's reference in summation to Stewart's impecuniosity and defendant's comparative financial stability:
[r]emember, Laquanna Stewart was broke at the time of this incident. She needed the rent money. No one is saying Nathaniel Smith was broke . . . Well, from what I heard him say he was getting three-fifty a week, that's 1,400 a month. He was living at home with his mother who's also getting disability checks. It's not a lot, but you can certainly survive off it if you're living at home.
"The introduction of evidence regarding whether or not a defendant has a regular source of income is, when a collateral issue, prohibited in any form." State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.), certif. denied, 177 N.J. 577 (2003). However, summations, like jury instructions, must be read as a whole. See State v. Morton, 155 N.J. 383, 419 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); State v. Wilbely, 63 N.J. 420, 422 (1973). A summation cannot be evaluated in isolation because the State is permitted to respond to allegations made by defense counsel in summation. State v. Darrian, 255 N.J. Super. 435, 454-55 (App. Div.), certif. denied, 130 N.J. 13 (1992); State v. Engel, 249 N.J. Super. 336, 379-80 (App. Div.), certif. denied, 130 N.J. 393 (1991). In other words, when a comment in the prosecutor's summation is "invited" as a response to the summation offered by defense counsel, the inquiry is whether the invited response unfairly prejudiced the defendant. Engel, supra, 249 N.J.
Super. at 379. "A prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses; a response is permitted." State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000). When reviewing the State's response, we "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo." United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L.Ed. 2d 1, 11 (1985). If "the prosecutor's remarks did no more than respond substantially in order to 'right the scale[,]'" then the prosecutor's remarks will not be considered improper. Engel, supra, 249 N.J. Super. at 379 (internal quotations omitted); State v. Murray, 338 N.J. Super. 80, 88 (App. Div.), certif. denied, 169 N.J. 608 (2001).
Although the prosecutor's references to defendant's financial circumstances may have been in response to, and invited by, defense counsel's comments about Stewart's motives and impoverishment, nevertheless, under the circumstances and when considered in combination with the other challenged remarks, the cumulative effect casts serious doubt on the verdict so as to require reversal. While the prosecutor's remarks about defendant being "broke" and "on welfare" may have attempted to "right the scales" in this one individual instance, the combined effect of this comment together with the prosecutorial errors we have already identified were sufficient, in our view, to prejudice the fairness of defendant's trial and therefore cast doubt on the propriety of the jury verdict.
We therefore conclude the prosecutor's comments denied defendant his right to a fair trial. Accordingly, defendant's convictions are thus reversed. In the event of a retrial, we proceed to address the other issues raised by defendant on this appeal.
Defendant contends "the jury's acquittal . . . on the predicate robbery and burglary charges was accompanied by gaps in the jury charge that failed to instruct the jury about what determinations they had to make before holding defendant criminally liable for these predicate crimes[,]" and ultimately for the felony murder charge for which he was convicted. We agree. The trial court's error in failing to instruct the jury on accomplice liability had the clear potential to lead the jury to believe defendant could be found guilty of the felony murder charge based on some conduct or state of mind lesser than that required to uphold a conviction on the predicate burglary and/or robbery charges.
A person commits felony murder when he "causes the death of a person other than one of the participants" while "engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery [and other enumerated offenses.]" N.J.S.A. 2C:11-3(a)(3). In addition to robbery, these predicate offenses include sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism. Ibid. "The only mental state required for felony murder is the specific mental culpability required to commit one of the particular underlying felonies specified in N.J.S.A. 2C:11-3(a)(3)." State v. Cooper, 151 N.J. 326, 360 (1997); Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:11-3(a)(3) (2010) (felony murder "is a crime of transferred intent" but noting "that although the phrase 'transferred intent' is used by courts and treatises, not all of the underlying felonies required intent and so the culpability transferred may not be 'intent' (purpose) but knowledge").
"In felony-murder cases, courts should instruct juries that they may not convict a defendant of felony murder unless they convict the defendant of the underlying offense that is a predicate to the felony-murder conviction. That offense need not be a completed felony." Grey, supra, 147 N.J. at 16; State v. Whitaker, 402 N.J. Super. 495, 527 (App. Div. 2008), aff'd, 200 N.J. 444 (2009); Cannel, supra, comment 3 on N.J.S.A. 2C:11-3a(3) ("The jury must be instructed that where there is a single felony charged as the basis for felony murder, it may not find felony murder unless it convicts of the underlying felony.").
Nevertheless, where a defendant is convicted of felony murder, yet acquitted of the predicate offense charged, our courts follow the Dunn/Powell rule,*fn4 which holds that a guilty verdict is not necessarily vulnerable because of an acquittal on a predicate offense. In Banko, supra, our Court quoted Powell with approval and held that "the Dunn/Powell rule controls inconsistent verdicts in this State." 182 N.J. at 54. The Court further held that that inconsistent "verdicts are permitted 'normally . . . so long as the evidence was sufficient to establish guilt on the substantive offense beyond a reasonable doubt.'" Id. at 55 (quoting State v. Petties, 139 N.J. 310, 319 (1995) (internal quotations omitted)); see also Grey, supra, 147 N.J. at 10 ("So long as the evidence is sufficient to support a conviction on the substantive offense beyond a reasonable doubt, such [inconsistent] verdicts are normally permitted."); State v. Kamienski, 254 N.J. Super. 75, 95-100 (App. Div.) (an acquittal of the charge of conspiracy to rob or to murder did not legally preclude a conviction for murder and felony murder reasoning that a jury could find accomplice liability independent of whether a conspiracy existed), certif. denied, 130 N.J. 18 (1992). "We do not speculate why a jury acquits." Banko, supra, 182 N.J. at 54.
"Inconsistent verdicts -- just like consistent verdicts --may be vulnerable, however, when an incomplete or misleading jury instruction causes an unfair trial." Id. at 55; see also State v. Branch, 155 N.J. 317, 328 (1998) ("Although we genuinely doubt that such an eventuality will occur, the Attorney General's [inconsistent verdict] theory could sustain the conviction had the jury not been misdirected by the trial court."). In Branch, the jury convicted the defendant of felony murder, but acquitted him of the three charged robbery offenses and questioned why defendant was not charged with robbery of another victim. Id. at 321-24.
Obviously struggling with a cast of characters that included three drug pushers, one of whom was armed with a gun, and a disgruntled drug buyer, who was also said to be armed, the jury was trying to determine what could be the basis for the felony-murder charge. The last question that the jury asked the court after having been told that it could not consider the Pettie robbery was whether it could consider "one of the other felony charges on the list." All parties agree that the jury's reference to a list was a reference to the indictment that was in its possession in the jury room and to the verdict sheet. Consistent with the charge, the jury found defendant guilty of at least one of the charges "on the list," a weapons offense, and consequently found defendant guilty of felony murder. [Id. at 329.]
Of course, the weapons offense was not one of the predicate crimes upon which a felony murder conviction may be based.
N.J.S.A. 2C:11-3(a). Thus, the judge had misdirected the jury as to the legal requirements for felony murder. Ibid. As the Court noted in reversing the defendant's conviction "[b]ut for misdirection of the jury, we might have been able to sustain the conviction under Grey and Powell. However, this is not a case of an inconsistent verdict but of an illegal verdict." Branch, supra, 155 N.J. at 329.
Similarly, in Grey, supra, the Court reversed the defendant's conviction for felony murder where the jury failed to convict him of the predicate offense of arson, noting that the general rule that an inconsistent verdict will be upheld was trumped by the trial court's erroneous jury instructions that conspiracy was a predicate offense for felony murder. 147 N.J. at 11-17. The Court noted that "[t]he Dunn/Powell rule does not sanitize other trial errors." Id. at 17. There, "the inconsistency in the verdicts [was] undoubtedly due to the jury's erroneous belief that it could convict defendant of felony murder based on the conspiracy count[,]" and the Court noted the judges' "instructions misled the jurors." Id. at 14, 16. Additionally, the trial court in Grey erroneously instructed in a manner that confused the jury that defendant could not be convicted of the aggravated arson offense as an accomplice but only as a principal, meaning that he had to be the person lighting the fire, which had never been the State's contention at trial. Id. at 12-14. The Court noted "[t]he unusual sequence in the charge on aggravated arson explains why the jury did not convict defendant as an accomplice to aggravated arson." Id. at 18.
In Grey, the trial court, despite the prosecutor's numerous attempts to clarify its jury charge to the jury on accomplice liability for aggravated arson, nevertheless repeatedly instructed the jury incorrectly, and "[t]hat charging sequence undoubtedly led the jury to acquit defendant of the underlying predicate to a felony murder conviction." Id. at 14. The Court noted this was "not a case like Powell in which inconsistency suggests that 'the jury has not followed the court's instructions[,]'" id. at 14 (quoting Powell, supra, 469 U.S. at 65, 105 S.Ct. at 477, 83 L.Ed. 2d at 469), but rather:
This jury followed the court's instructions on arson because it thought that only the one who set the fire could be guilty of arson; it followed the court's instructions on felony-murder but those instructions misled the jurors. The jury, in short, was led down the wrong path. The jurors had erroneously believed that defendant could not be convicted of aggravated arson unless he set the fire himself. That is evidenced by their acquittal on arson. They acquitted defendant of the aggravated arson charge after finding that he was not a principal. However, the jurors believed that defendant was guilty of conspiracy to commit aggravated arson, as clearly indicated by their finding of guilt on that count. Thus, they must have concluded the conspiracy to commit aggravated arson would suffice as the predicate felony to the felony-murder charge. This was the trial court's understanding of the verdict, because it believed that the conspiracy count could form the predicate for felony murder. It stated "the fact that there was a conviction of the conspiracy to commit arson . . . in itself would be sufficient to be the predicate for [the felony murder counts]."
We know that the substantive crime of conspiracy is not a predicate offense for felony murder. See N.J.S.A. 2C:11-3a(3) (listing predicate felonies). However, the charge did not explain that. Although the court explained to the jury that defendant could be guilty of conspiracy without being guilty of aggravated arson, it failed to explain that defendant could not be guilty of felony murder without also being guilty as an accomplice. The felony murder charge required that the jurors first find that defendant was "engaged in the commission of aggravated arson" (emphasis added) for the jurors to convict of felony murder. Had the jury understood that conspiracy to commit arson could not be a predicate felony for the felony murder charge, it could not have convicted defendant of felony murder since it did not convict him as a principal.
[Id. at 14-15.]
Accordingly, the Grey Court noted this was "an idiosyncratic case" where: the inconsistency in the verdicts is undoubtedly due to the jury's erroneous belief that it could convict defendant of felony murder based on the conspiracy count. Although the jury might well have convicted the defendant of aggravated arson as an accomplice, it did not do so for reasons acknowledged by the prosecution to be related to the sequence of the charge and recharge on aggravated arson. This problem will most likely never arise again."
[Id. at 16 (emphasis added)].
These cases generally stand for the proposition that while inconsistent verdicts normally are valid and not, by themselves, ground for reversal, the rule does not apply if the reason for the inconsistent verdict was clearly based on erroneous, misleading or confusing jury instructions. Where the verdict is based on a misunderstanding of the law caused by faulty instruction, namely where the jury is "led down the wrong path" to a result not permitted under the law, the verdict cannot stand. Id. at 14.
Here, an alternate theory of defendant's culpability proffered by the State involved the trio conspiring to rob Lewis, with Stewart and/or Davis actually shooting the victim. As pertains to defendant, the proofs clearly suggested his accomplice liability.
A person is an accomplice of another person in the commission of an offense if: (1) [w]ith the purpose of promoting or facilitating the commission of the offense[,] he (a) solicits such other person to commit it; (b) aids or agrees to attempt to aid such other person in planning or committing it; or (c) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (2) [h]is conduct is expressly declared by law to establish his complicity. [N.J.S.A. 2C:2-6(c).]
"Whether a defendant is a principal or an accomplice, the State must prove that he possessed the mental state necessary to commit the offense. Accordingly, the Code requires an individualized assessment of each defendant's criminal responsibility." State v. Whitaker, 200 N.J. 444, 458 (2009) (citing N.J.S.A. 2C:2-2(a)). "For both the accomplice and his partner to be guilty, 'it is essential that they shared in the intent which is the crime's basic element.'" State v. White, 98 N.J. 122, 129 (1984) (quoting State v. Fair, 45 N.J. 77, 95 (1965)). "To be found guilty as an accomplice, a defendant must not only share the same intent as the principal who commits the crime, but also must 'at least indirectly participate in the commission of the criminal act.'" Whitaker, supra, 200 N.J. at 459 (quoting State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993)) (internal quotations and citations omitted). "The [Criminal] Code does not support holding a defendant strictly liable for a crime in which he did not share the same criminal intent as his confederates." Whitaker, supra, 200 N.J. at 463-64. Accordingly, "to establish accomplice liability in a robbery case, the Code requires that the State prove that an accomplice shared the principal's intent to commit the theft before or at the time the theft or attempted theft was committed." Id. at 464.
"[I]f the facts support liability as a principal and/or an accomplice, the jury should be charged with both theories." Cannel, supra, comment 7 on N.J.S.A. 2C:2-6c (citing Roach, supra, 146 N.J. at 223); State v. Savage, 172 N.J. 374, 388 (2002); State v. Weeks, 107 N.J. 396, 400 (1987). Bielkiewicz, supra, holds that "when a prosecution is based on the theory that a defendant acted as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." 267 N.J. Super. at 527 (emphasis added) (citing Weeks, supra, 107 N.J. at 410 (reversing a conviction for armed robbery where the charge did not require the jury to find that the accomplice had shared the principal's purpose to commit robbery with a weapon)).*fn5
In Whitaker, supra, the Supreme Court held that the defendant could not be guilty as an accomplice of robbery and felony murder unless he shared the principal's intent to commit the theft before or at the time the attempted theft was committed. 200 N.J. at 464. The Court reversed defendant's convictions for robbery and felony murder as it was "impossible to determine whether the jury convicted defendant . . . based on an impermissible legal theory" where the court did not correct the mistaken legal theory regarding accomplice liability urged by the prosecutor at summation. Id. at 465-66. The Whitaker Court noted that "[b]ecause defendant's felony-murder conviction was predicated on his robbery conviction and because the robbery conviction is infirm, the robbery and felony-murder convictions both must be reversed." Id. at 466 n.16 (citing Grey, supra, 147 N.J. at 16; N.J.S.A. 2C:11-3a(3)).
Here, although plainly indicated by the proofs, the jury was not instructed on the principles of accomplice liability.
Even though defendant never requested such a charge, the trial judge did consider giving the instruction, but ultimately declined, considering the "non-slayer participant" feature of the model jury charge its basic equivalent. That instruction specifically provides that "[t]he first element requires the State to prove beyond a reasonable doubt that the defendant was engaged in the commission of or attempt to commit or flight after committing or attempting to commit" the predicate crime. Model Jury Charge (Criminal), "Felony Murder-Non-Slayer Participant" (March 22, 2004) (emphasis added).*fn6
We disagree with the State's position on appeal that the "non-slayer participant" language of the felony murder model charge "covers the accomplice theory." The fact that a defendant was "engaged in" conduct resulting in the victim's death does not necessarily establish the mental state required for commission of the underlying offense, on which a felony murder conviction must be predicated. On this score, the State further argues that omission of the accomplice liability charge actually inured to defendant's benefit, as it made him less likely to be convicted of the predicate offense and for this reason constituted only harmless error. If the jury were instructed on accomplice liability and given another basis to convict other than finding defendant to be the principal, the jury might have otherwise found defendant guilty of the robbery or burglary of Lewis. However, the absence of such an instruction left the jury free to believe that defendant need not have shared the same intent as the principals in the robbery/burglary, and that mere "engagement" in the underlying event sufficed to establish the requisite mental state for, and therefore his guilt of, felony murder.
Accordingly, the jury was never instructed that defendant needed to share the same or similar mental state to commit the predicate offense upon which a felony murder conviction must be based. Bielkiewicz, supra, 267 N.J. Super. at 528 ("[A] jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.") (internal quotations and citations omitted). The omission went to the heart of the jury's instruction on the felony murder offense where it effectively equated the standard for conviction for the felony murder offense, i.e., being "engaged in" the commission or attempted commission of a predicate offense, with the standard of proof to find defendant guilty as an accomplice, namely that defendant shared the intent of the principal prior to or during the commission of the robbery and burglary offenses. As such, there is no assurance here that the jury understood that defendant needed to have the same intent to commit the predicate offenses in order to be convicted of felony murder for "engaging in" conduct leading to the victim's death.
In our view, defendant's argument that he was convicted of the felony murder charge on a finding of a lesser "intent" or state of mind than that required to support a conviction of the predicate offense is persuasive. It appears the jury believed defendant had conspired with his co-defendants and had not been the principal actor in the robbery/burglary of Lewis, but his admitted conduct of driving the women to and from the victim's apartment and his knowledge that one of the women possessed a weapon sufficed to establish that he was "engaged in the commission of or attempted to commit or flight after committing or attempting to commit" the predicate offenses. The jury may have erroneously believed that defendant could be convicted of felony murder as a non-slayer participant without sharing his co-defendants' intent in committing the underlying predicate offense.
The fact that defendant never requested an accomplice liability charge cannot save the conviction here. "[B]ecause correct jury charges are especially critical in guiding deliberations in criminal matters, improper instructions on material issues are presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361 (2004) (citing State v. Jordan, 147 N.J. 409, 421-22 (1997)); see State v. Barden, 195 N.J. 375, 394 (2008) ("an erroneous charge will rarely stand on the ground that the error was harmless").
Clearly, here, there is an inconsistent verdict, which is normally allowed except where "an incomplete or misleading jury instruction causes an unfair trial." Banko, supra, 182 N.J. at 55. While courts generally do not speculate "as to whether the verdict resulted from jury lenity, compromise or mistake not adversely affecting the defendant[,]" Grey, supra, 147 N.J. at 11, the reason for the inconsistency here appears neither a consequence of jury lenity nor nullification, but rather the trial court's failure to instruct the jury on accomplice liability. By omitting to instruct on "the specific mental culpability required to commit one of the particular underlying felonies specified in N.J.S.A. 2C:11-3(a)(3)[,]" Cooper, supra, 151 N.J. at 360, there is no assurance that the jury applied the correct legal principles in reaching their verdict on felony murder. Accordingly, the conviction cannot stand.
Defendant next argues that his conviction for possession of a weapon for an unlawful purpose must also be vacated in light of his acquittals of robbery and burglary. Specifically, he contends that since the trial judge "identified the unlawful purpose during his charge on the weapons count as 'defendant's unlawful purpose . . . to commit the offense of robbery or burglary['] [t]his was the only purpose the jury was directed to consider" and the "[s]ubsequent acquittal of defendant on the robbery and burglary charges erased the identification of the unlawful purpose." We disagree.
"Any person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree." N.J.S.A. 2C:39-4a(1). The elements of possession of a weapon for an unlawful purpose are:
(1) the item possessed was a "firearm" within the meaning of N.J.S.A. 2C:39-1(f);
(2) the defendant "possessed" it, which under N.J.S.A. 2C:2-1(c) requires knowledge or awareness of his control over the item;
(3) the defendant's purpose or conscious objective was to use it against the person or property of another; and (4) the defendant intended to use it in a manner that was proscribed by law. [State v. Harmon, 104 N.J. 189, 212 (1986).]
The fourth element requires a finding that a defendant armed himself "with the actual purpose of using the weapon against another in a criminal manner." Id. at 204. An unlawful purpose can be inferred from circumstantial evidence. Petties, supra, 139 N.J. at 317. See also State v. Latimore, 197 N.J. Super. 197, 211 (App. Div. 1984), certif. denied, 101 N.J. 328 (1985). Moreover, a conviction for possession of an unlawful purpose does not require the State to obtain a conviction on the underlying unlawful conduct. State v. Diaz, 144 N.J. 628, 635-36 (1996); Petties, supra, 139 N.J. at 315; Harmon, supra, 104 N.J. at 212. Indeed, "an acquittal of the commission of a crime with a gun does not establish that its prior possession had always been for a lawful purpose." Petties, supra, 139 N.J. at 311.
"[T]he issue of unlawful possession turns on the purpose for which defendant possessed the gun and not how he used it." State v. Blanks, 313 N.J. Super. 55, 73 (App. Div. 1998) (emphasis added) (internal quotations and citations omitted). In State v. Mello, we found that "possession of a firearm for an unlawful purpose is a preparatory crime and the unlawful purpose of the actor 'may be independent of the commission of [a] substantive offense.'" 297 N.J. Super. 452, 466 (App. Div. 1997) (quoting Diaz, supra, 144 N.J. at 636-37). "It may be impossible in some cases to define with precision the exact crime or crimes the defendant intended to commit with the firearm." Ibid. A defendant need not even be separately charged with committing the unlawfully intended purpose, Latimore, supra, 197 N.J. Super. at 211, and the indictment need not identify with specificity the unlawful purpose harbored by a defendant in possessing the firearm. The trial judge did not commit reversible error in failing to define the elements of the crime the defendant intended to commit with the weapon. Mello, supra, 297 N.J. Super. at 457, 464-65.
In Banko, supra, 182 N.J. at 45, the defendant was acquitted of the substantive charge of attempted aggravated sexual assault but convicted of possession of a weapon for an unlawful purpose. In upholding the facially inconsistent verdict, the Court stated:
The superficial inconsistency between the two charges does not void the legitimacy of the jury's conviction. The jury may have chosen to convict on possession of a weapon for an unlawful purpose, the purpose being, as the court instructed in respect of the State's theory of the case, to confine [the victim] and to assault her sexually. And, yet, the jury could have determined not to convict defendant on the substantive offenses for reasons known only to the jury.
We must accept the arguably inconsistent verdicts, and decline to speculate on the reasons for the jury's determination. The only factual assessment required is to ensure that there was sufficient evidence to support the charge for which defendant was convicted. [Id. at 56 (emphasis added).]
After noting that the "jury did not have to believe all of the victim's testimony, and may have found some aspects of defendant's story more credible[,]" the Banko Court found "the record contains sufficient evidence from the witnesses, even if their stories were not accepted in full, to support the unlawful purpose charge on which defendant was found guilty." Id. at 57-58.
Defendant's reliance on State v. Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989), for an opposite view, is misplaced. There, we reversed the defendant's conviction and remanded for a new trial, reasoning that the jury had not been instructed on the specific unlawful purpose suggested by the evidence and that the instruction failed to inform the jury that it could not convict based on its own notions of unlawfulness or an un-described purpose. Ibid. The defendant in Jenkins was acquitted of aggravated assault with a weapon, "and no evidence other than the account of the alleged assault [wa]s adduced to prove a charge of possession of the weapon for an unlawful purpose," so the jury could not "convict on the possession charge because it [wa]s left to speculate on the unlawful purpose." Petties, supra, 139 N.J. at 314. Jenkins, however, simply stands for the proposition that when a defendant is charged with possession of a firearm for an unlawful purpose, the jury must be instructed as to the specific unlawful purpose suggested by the evidence and instructed that it "may not convict based on their own notion of the unlawfulness of some other undescribed purpose." Id. at 319-20 (quoting Jenkins, supra, 234 N.J. Super. at 316). In Petties, supra, the Court cautioned that "[t]o conclude that every acquittal of the substantive charge involving the use of a gun requires an erasure of the charge of possession for an unlawful purpose would be an overreading of Jenkins[.]" 139 N.J. at 317.
Here, the trial judge properly instructed the jury on the possessory offense consistent with the Model Jury Charges:
In this case the State contends the defendant's unlawful purpose in possessing the firearm was to commit the offense of robbery or burglary. You must not rely upon your own notions of the unlawful - unlawfulness of some other undescribed purpose of the defendant, rather you must consider whether the State has proved the specific unlawful purpose charged. The unlawful purpose alleged by the State may be inferred from all that was said or done and all - surrounding circumstances of this case.
However, the State need not prove defendant accomplished his unlawful purpose of using the firearm or if - let's see. If you are satisfied beyond a reasonable doubt that the State has proven each of the elements of this offense as I have defined them, then you must find defendant guilty.
This instruction correctly "'guide[d] the jury in its determination of the unlawful purposes alleged[,]'" State v. Brims, 168 N.J. 297, 306 (2001) (quoting Petties, supra, 139 N.J. at 319), and adequately insured that the jury did not speculate as to the underlying unlawful purpose. As such, defendant's conviction for possession of a weapon for an unlawful purpose does not fail simply because the jury acquitted him of the underlying charges of robbery and burglary.
As noted earlier, "a jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." Banko, supra, 182 N.J. at 46. We find such evidential support in this record. The jury's finding defendant guilty of conspiracy to commit robbery and burglary lays to rest any suggestion to the contrary. Moreover, the acquittal of the substantive crimes is not necessarily inconsistent with conviction of the possessory offense, in that the jury may have believed defendant constructively possessed the gun for the unlawful purpose of robbery or burglary, but did not sufficiently attempt the commission of those crimes to warrant conviction thereof.
In sum, we conclude defendant's conviction of possession of a weapon for an unlawful purpose should not be vacated for want of conviction of the underlying substantive crimes, yet mandates reversal as it suffers from the errors discussed at length above.
Defendant contends that his statement "I could cooperate with a lawyer (inaudible)?" was a request for counsel, which the police not only failed to clarify or honor, but affirmatively discouraged by telling him that seeking counsel would deprive him of the opportunity to speak with police about the matter. The State counters that defendant's statement did not amount to a request for counsel, equivocal or otherwise, and that the officer's response "was merely saying (correctly) that he did not know what those opportunities to cooperate would be once an attorney became involved."
At the Miranda*fn7 hearing pursuant to N.J.R.E. 104(c), it was established that Detective Toro read defendant his Miranda rights utilizing a rights waiver form, which defendant executed along with the interviewing detectives, Toro and Rosario. According to Toro, defendant made a one-and-one-half hour long statement to the police during which he never indicated that he wanted an attorney. When, during the course of the questioning, defendant stated "I could cooperate with a lawyer (inaudible)?" Toro responded "That's up to you, if that's what you want to do." Defendant then said something inaudible to which Toro replied "[b]ut with a lawyer you're not going to have the opportunity to sit down and explain to us why this happened." According to Toro, he said this because "at the time I didn't know whether or not he would have another opportunity to explain to us why the crime happened" and re-read defendant his rights. Toro subsequently interviewed the defendant two days later on April 12, 2008, at which time he again provided defendant with his Miranda rights and during the course of the interview, defendant requested an attorney, prompting Toro to immediately terminate the interview.
In denying defendant's motion to suppress his statement, the judge reasoned:
The only question that was really argued strenuously was whether or not the defendant's question - and we all agree that it's a question, the first time I looked at it and saw it and heard it there was no doubt in my mind it was a question indicating he could cooperate with a lawyer. I believe he said couldn't I, but, again, it was highly inaudible and it was more like a guess work for me that that's what he said.
And it would be pointed out that again shortly after the second inaudible area the detective did advise him of his right that he had the opportunity to . . . talk to an attorney.
But I would point out that even with the minor areas of inaudibility whether or not the answer was an answer where it says inaudible, that's right after the word, it's up to you if that's what you want to do, I'm not sure that the detective even heard what that inaudible comment was, but he further went on later - shortly thereafter to explain his rights again.
And I'm looking at the . . . words used by Detective Toro and the inference could very easily be drawn that this is the time to talk to us before he had time to think up an answer. It's more believable. . . .
So I do not believe that there was a reasonable request for an attorney and the ceasing of the statements that a reasonable detective would believe was such that the defendant was requesting an attorney.
Miranda mandates that a person subject to custodial interrogation must be adequately and effectively informed of certain rights. State v. Nyhammer, 197 N.J. 383, 400, cert. denied, ___ U.S. ___, 130 S.Ct. 65, 175 L.Ed. 2d 48 (2009). Thus, a statement provided in custody is not admissible unless it is preceded by a knowing, intelligent, and voluntary waiver of Miranda rights. State v. DiFrisco, 174 N.J. 195, 235 (2002);
Cooper, supra, 151 N.J. at 354. As the United States Supreme Court has explained:
The inquiry has two distinct dimensions.
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed. 2d 410, 421 (1986) (internal citations and Quotations omitted).]
Authorities are instructed to stop questioning in the event a suspect makes even an ambiguous request for an attorney. Such requests "need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Reed, 133 N.J. 237, 253 (1993). In New Jersey, "an equivocal request for an attorney is to be interpreted in the light most favorable to the defendant." State v. Chew, 150 N.J. 30, 63 (1997), overruled in part on other grounds by, State v. Boretsky, 186 N.J. 271 (2006). "When a suspect makes a statement that arguably amounts to an assertion of Miranda rights and the interrogating agent recognizes that the statement is susceptible to that construction, questioning should cease and the police should inquire of the suspect about the correct interpretation of the statement." Ibid. If that statement is a request for an attorney, the questioning must cease until an attorney has been made available or the accused "initiates further communication, exchanges, or conversation with the police." Id. at 61 (internal quotations and citations omitted). If police are unsure whether a suspect is asserting his right to silence, they must either stop the interrogation completely or "ask only questions narrowly directed to determining whether defendant was willing to continue." State v. Johnson, 120 N.J. 263, 284 (1990).
However, not every mention of an attorney in this context constitutes an equivocal request for an attorney. Compare State v. Messino, 378 N.J. Super. 559, 573-78 (App. Div.) (concluding that defendant's inquiry, "[D]o you think I need a lawyer?" made to a law enforcement officer during a break in questioning was not a request for counsel), certif. denied, 185 N.J. 297 (2005), with State v. Wright, 97 N.J. 113, 117-19 (1984) (construing the defendant's ambiguous statement: "I won't sign any more deeds without a lawyer present[,]" as a request for counsel), Maglio v. Jago, 580 F.2d 202, 203-07 (6th Cir. 1978) (finding the defendant's statement "Maybe I should have an attorney" amounted to a request for counsel), and United States v. Clark, 499 F.2d 802, 805 (4th Cir. 1974) (holding similarly with respect to the defendant's statement: "I had better talk to a lawyer."). "An equivocal invocation occurs where the suspect's statement or question appears to contemplate an invocation, as opposed to simply seeking a better understanding of the rights." David M. Nissman & Ed Hagen, Law of Confessions §6.25 (2d ed. 1994). Authorities "are not obliged to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning." State v. Bey, 112 N.J. 123, 136-37 (1988).
In Messino, supra, we found that a suspect asking authorities if they thought he needed a lawyer was not a request for an attorney, ambiguous or otherwise. 378 N.J. Super. at 578. The officer in Messino responded to defendant's inquiry by telling him that it "was his call[,]" id. at 573, and advised the defendant on more than one occasion that he had a right to an attorney, and one would be appointed for him if he could not afford one. Id. at 573-74. We found that the defendant's statement "merely asked the officer whether he thought defendant needed a lawyer, an inquiry that readily may be distinguished from other statements considered to be requests for counsel" as in Jago and Clark. Id. at 578.
Here, we find that defendant was merely asking a question about "cooperating" with counsel rather than requesting an attorney. As such, Detective Toro reasonably believed that defendant was simply seeking confirmation of his right to counsel, which he immediately received from the detective.
Defendant nevertheless argues that Toro's subsequent reference, questioning whether defendant would have further opportunities to cooperate, was both misleading and coercive as to vitiate the waiver of Miranda rights. We disagree. We first note that "a misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induced the confession." Cooper, supra, 151 N.J. at 355. Furthermore, defendant's reliance on United States v. Anderson, 929 F.2d 96 (2d Cir. 1991), in this regard, is misplaced. There, the defendant was informed by an agent that if he asked for an attorney no federal agents would be able to speak to him further and he stated three times "if you want a lawyer you can't cooperate[.]" Id. at 97. The officer's statements in Anderson advised the defendant "that if he asked for a lawyer it would permanently preclude him from cooperating with police[,]" which the Second Circuit found rendered his confession involuntary as a matter of law. Id. at 98-102. "The agent's statements ruled out th[e] possibility [of cooperating], and may have created in Anderson's mind a false sense that he must confess at that moment or forfeit forever any future benefit that he might derive from cooperating with the police agents." Id. at 100.
Here, in contrast, Detective Toro merely told defendant he was not sure whether he would get another opportunity to cooperate, and quite correctly said that it would not be up to him "what agreements would be available to defendant once an attorney became involved." Such a statement encouraging defendant's cooperation did not foreclose any future possibility at cooperating. Nor was Officer Toro's statement that he did not know if defendant would have a second chance to cooperate so misleading as to render his Miranda waiver involuntary. Neither did the statement possess the coercive effect ascribed to it by defendant on appeal. Immediately after Toro's statement, defendant asked no further questions nor made any statement that could reasonably be interpreted as a request for counsel until days later, when on April 12, 2007, defendant clearly asked for an attorney, and the interview was promptly terminated. Based on the totality of circumstances, defendant's statement was properly admitted.
Relying on State v. Burr, 195 N.J. 119, 133-36 (2008) and State v. Michaels, 264 N.J. Super. 579, 641-45 (App. Div. 1993), aff'd, 136 N.J. 299 (1994), defendant next contends the trial court erred "below because the jury was allowed to bring [his] taped oral statements  into the jury room with a tape player, giving them unfettered access to these tapes during deliberations[,]" which "overemphasized defendant's taped statements over the other testimony and evidence the jury heard during trial[.]" The State distinguishes the cases upon which defendant relies, noting that they applied to "video replay," not "mere audio replay," of a victim's statement, which brings a witness "before the jury a second time[,]" conveying "all [of] the animation, passion, or sympathy" originally conveyed. Burr, supra, 195 N.J. at 133 (quoting Michaels, supra, 264 N.J. Super. at 644). The State urges us to accept the holdings of other states that permit, in the discretion of the judge, the admission of a taped confession into the jury room during deliberations.
In Michaels, supra, we found that the playback in its entirety of the videotaped testimony of child victims of sexual assault to jurors during deliberations and in open court upon the jury's request was not per se prejudicial and is subject to judicial discretion. 264 N.J. Super. at 644-45. However, we enumerated numerous factors that are to be taken into consideration by the trial judge before replaying the testimony to the jury to reduce the risk that the jury would unduly emphasize the videotaped testimony since "videotape testimony is unique" id. at 643 (citation omitted) as: the witness is brought before the jury a second time, after completion of the defense['s] case, to repeat exactly what was testified to in the State's case. The witness' words and all of the animation, passion, or sympathy originally conveyed are again presented to the jury. It is difficult to deny that there is an advantage that may be gained in such circumstances. [Id. at 644.]
There, a transcript of the victim's testimony was submitted into evidence and provided to the jury during deliberations; the videotaped testimony of the children, who testified via closed circuit television, was not admitted into evidence. Id. at 642-43.
Unlike Michaels, in Burr, supra, the videotape testimony of the victim was admitted into evidence as an exhibit. 195 N.J. at 132. "Generally, once an exhibit has been admitted into evidence, the jury may access it during deliberations, subject to the court's instructions on its proper use." Id. at 133-34. The videotaped pretrial statement in Burr was "significantly different from a demonstrative exhibit" and was a "hybrid" of both "evidence" and "testimony[.]" Id. at 134. The Court expressed concern "that allowing a jury unfettered access to videotaped witness statements could have much the same prejudicial effect as allowing a jury unrestricted access to videotaped testimony during deliberations" as it runs the danger that "the jury many unfairly emphasize [the witness's] videotaped statements." Id. at 134. Therefore, the Court held "that, in the future, if a request is made by a jury to replay a videotaped pretrial interview that has been introduced into evidence, the precautionary procedures adopted in Michaels must apply to the videotaped out-of-court statements." Ibid. Burr laid out the following procedure first articulated by the Michaels court:
[T]he court first should inquire of the jury whether it would be satisfied with a readback of [the witness]'s testimony. If the jury persists in its request to view the videotape again, then the court must take into consideration fairness to the defendant. The court must determine whether the jury must also hear a readback of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback. Furthermore, we reiterate that the court retains the ultimate discretion to deny the playback request, although that would require a showing that the consequential prejudice to the defendant from the playback could not be ameliorated through other means. And, finally, any playback of the videotape must occur in open court, along with the readback of related testimony that the court shall require. [Id. at 135 (footnote omitted).]
See State v. Miller, 411 N.J. Super. 521, 530 (App. Div. 2010) (finding the trial court's decision to replay the video testimony of a witness in open court was proper where there was no paper transcript of the testimony available for a "read back" to the jury under Burr and Michaels).
While we have found no reported New Jersey case on the appropriateness of providing the jury, during deliberations, with an audio tape of a defendant's pre-trial statements to police, other states have found it permissible to allow recorded confessions or incriminating statements of a defendant into the jury room during deliberations. See Flonnory v. State, 893 A.2d 507, 525 (Del.) ("It follows that the trial judge has broad discretion to admit as exhibits (that go into the jury room during the jury's deliberations) tape or video recordings or other 'memorializations' of a § 3507 witness's out-of-court statements that were properly played in the jury's presence during the course of the trial."), cert. denied, 549 U.S. 834, 127 S.Ct. 66, 166 L.Ed. 2d 59 (2006); Litherland v. McDonnell, 769 N.E.2d 1237, 1242 (Ind. Ct. App. 2003); Jackson v. Commercial, 590 S.E.2d 520, 533 (Va.) (undue emphasis was not placed on defendant's video taped confession simply due to the fact that the jury was allowed to take the videotape into the jury room; jury was authorized to request any trial exhibits during deliberations and the fact that a jury might put emphasis on certain evidence was simply part of what they did when weighing and considering the evidence), cert. denied, 543 U.S. 891, 125 S.Ct. 168, 160 L.Ed. 2d 155 (2004); Commonwealth v. Fernette, 500 N.E.2d 1290, 1295 (Mass. 1986) (trial court did not err in allowing jury unrestricted access to defendant's taped statement during deliberations, where at trial, prosecutor and defendant agreed to allow jury unrestricted access to taped statement); State v. Elmore, 985 P.2d 289, 294-98 (Wash. 1999) (tape recorded statement by defendant and a properly authenticated transcript thereof may, within the sound discretion of the trial court, be admitted as exhibits and reviewed by the jury during its deliberations), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed. 2d 57 (2000); United States v. Zepeda-Santana, 569 F.2d 1386, 1391 (5th Cir.) ("We see no difference between allowing a jury to take a written confession into the jury room with them . . . and allowing the jury to replay a tape that was already in evidence and which they had already heard."), cert. denied, 437 U.S. 907, 98 S.Ct. 3098, 57 L.Ed. 2d 1138 (1978).
Clearly, the decision to allow defendant's audio taped statement in the jury room rests within the trial judge's sound discretion, which we review for an abuse thereof. Given our ultimate disposition in this matter, we need not determine whether the trial court abused its discretion in this instance. Should this issue arise on retrial, we caution that before allowing the jury to take into the jury room during deliberations the audiotape and transcript of defendant's statement, after having already been played to the jury during the State's case-in-chief, the court should follow the procedures we first stated in Michaels and confirmed by the Court later in Burr.
Defendant's final contention, assigning error to the judge's sentencing determination, need not be addressed as defendant's convictions are reversed and his sentence, therefore, vacated.