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State v. Ortiz

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAFAEL ORTIZ, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-01-0009.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2010

Before Judges Stern, Sabatino and J. N. Harris.

Defendant Rafael Ortiz appeals his conviction for felony murder, first-degree robbery, and second-degree conspiracy to commit robbery, stemming from a jury verdict following a 2007 trial. Because the trial court's charge to the jurors was flawed by multiple and lengthy omissions of critical instructions on accomplice liability required under State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993) and State v. Ingram, 196 N.J. 23, 40-41 (2008), we vacate defendant's convictions and remand for a new trial.

I.

The indictment of defendant arose out of a fatal attack by several persons upon Isidro Villa Avila, after Avila had walked out of a bar in Passaic early on the morning of September 11, 2004. The State's proofs at trial adduced the following pertinent facts.

At about 10:00 p.m. on September 10, 2004, Samuel Tufino and Harlon Morales, two of the alleged perpetrators who were involved with defendant in the crimes at issue, met at the El Pisano bar on High Street in Passaic. Tufino, Morales, and another acquaintance of theirs, Oscar Nieves, began drinking in the bar. Also present and having drinks were three other men that Tufino could not identify by name.*fn1

One of the unidentified men drinking in the bar--"the Dominican"--told the rest of the group that he knew of another bar patron who was in possession of a large sum of money. The group then decided to rob the bar patron. Tufino testified that defendant was part of the group that made that decision. At some point thereafter, the entire group, including defendant, allegedly left the bar and went to a residence at 99 Gregory Avenue in Passaic.

Meanwhile, four other men who also eventually became involved in the criminal acts--Ariel Mercado, Daniel Manuel, Eduardo Velloy, and Freddy Placensia--went to see a movie in Clifton. At midnight, after the movie ended, those four men boarded a bus to Passaic and went to the El Pisano bar. They arrived sometime between 12:30 and 1:00 a.m. on September 11, 2004. As Mercado was entering the bar, he saw defendant walking from Main Avenue. Defendant told Mercado that he had just left a local fast-food restaurant.

Mercado and Manuel went inside the bar to purchase cigarettes. They saw Nieves, Morales, and another man playing pool. Mercado and Manuel then left the bar and walked to 99 Gregory Avenue to drink and gamble. Manuel reportedly called his friend Ashish Patel to join them there.

Patel testified that when he arrived at 99 Gregory Avenue, shortly before 1:00 a.m., he saw defendant, accompanied by Mercado, Manuel, Nieves, Morales, Velloy, Placensia, and another man, Juan Toribio.*fn2 According to Patel, Nieves and Toribio were discussing the intended robbery of the bar patron. Nieves told Toribio to return to the bar and "keep an eye" on the intended victim. He paid Toribio $10 to do so.

Patel, Manuel, and "a few people" then all went to the bar several minutes later to purchase cigarettes and cigars. Once they returned to 99 Gregory Avenue, Nieves instructed Patel to retrieve Toribio from the bar.

Patel then found Toribio, who appeared to be too drunk to stand, outside the bar. Patel asked Toribio if he was still watching the intended target of the robbery. Toribio responded that he had stopped doing so because he was too drunk to be allowed to remain in the bar.

Patel and Toribio returned to 99 Gregory Avenue and joined Nieves, Morales, Mercado, Manuel, and defendant there. By this point Velloy and Plascensia had already left for Velloy's home.

According to the State's proofs, the men gathered at 99 Gregory Avenue reached a general agreement to split the proceeds of the intended robbery. However, Toribio objected to the plan, causing Patel and Nieves to get irritated and assault him.

At this point in the sequence of events, the testimony diverged somewhat. According to Patel, he, Morales, and Mercado walked Toribio to the back of the driveway at 99 Gregory Avenue. Meanwhile, Nieves, Manuel, and defendant went back down to High Street to locate the robbery target, who had reportedly been seen vomiting outside the bar. Manuel then returned shortly thereafter to 99 Gregory Avenue, where Patel was apologizing to Toribio for the assault. Patel then encountered Nieves, who "looked like he [had] changed his clothes" and had "freshened up a little bit." Nieves told the assembled men at 99 Gregory Avenue that "somebody had [just] got[ten] killed down the street . . . around the corner of High Street."

Mercado's account was similar to that of Patel, but slightly different. He testified that after the confrontation between Patel and Toribio had erupted, defendant, Nieves, Morales, Patel, and another person all headed towards the bar. However, according to Mercado, Manuel remained behind with him and Toribio. Patel and Morales returned immediately. Mercado subsequently learned that someone had been killed "around the corner."

Unlike Patel and Mercado, Tufino offered in his testimony some first-hand observations of the attack upon the victim. Tufino stated that he went back to the bar with defendant, Nieves, and "the Dominican," i.e. Toribio. According to Tufino, consistent with the plan of attack, Toribio lured the intended robbery victim out of the bar by offering him some marijuana. At this point, Tufino saw defendant, Nieves, and Toribio walk across High Street, and observed them struggle with the victim. The threesome then ran from the scene while the victim, covered with blood, staggered about.

At 1:15 a.m. on September 11, 2004, the local police received a call that there was a "downed party" at 19 High Street in Passaic. Responding to the scene, the investigating officers discovered a trail of blood that began at 11 High Street and ended at the lifeless body of Avila. The officers noticed that Avila had been stabbed three times in the chest.

A search of Avila's body and clothing turned up a pay stub for $468.41, dated the previous day, September 10, 2004. Additionally, Avila was found to be in possession of $84 in cash, a cell phone, and some personal items. The police then canvassed the area. They learned that Avila had lived nearby, at 79 Gregory Avenue.

As a result of their initial investigation, the police identified defendant and several other men as potential witnesses and/or suspects. Police officers consequently interviewed defendant on September 12, the day after the killing. During that initial interview, he identified Toribio and Nieves as the perpetrators, but denied any wrongdoing himself.

After speaking with several other persons, the police decided to re-interview defendant on September 15, 2004. This second interview was videotaped.*fn3 In the second interview, defendant provided more detail. He told the police that Toribio had attempted to recruit him into a plot to rob the bar patron, but that he had refused. Defendant further stated that he had seen Toribio, before the attack, in possession of a "black, metal, [and] pointy" knife.

After taking defendant's second statement, the police located and questioned Tufino, who, among other things, inculpated defendant. Following that interview, the police obtained an arrest warrant for defendant, charging him with conspiracy to commit robbery, homicide, and various weapons offenses. After defendant was arrested, on September 16, 2004, he initiated contact with the same detective who had taken his earlier statements and gave a third--this time oral--statement. In his third statement, defendant claimed that he saw Toribio stab Avila while Nieves held him down. Defendant did not indicate in that third statement that he assisted in either the conspiracy or the robbery.

Defendant was subsequently indicted by a grand jury, along with seven*fn4 co-defendants, for various crimes arising out of the attack upon Avila and his ensuing death. Specifically, defendant was charged with felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, -4a; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree possession of a weapon, N.J.S.A. 2C:39-5d. The State did not contend that defendant himself had actually killed Avila, but instead had criminally participated in the plan to rob the victim and in the robbery itself.

Defendant's case was apparently severed*fn5 from the other co-defendants, and was tried before a jury over eight days in April and May 2007. As part of its proofs, the State called Detective Sergeant Roy Bordamonte, the lead investigator on the case. The State also presented expert testimony from the medical examiner, Albert Wayne Williams, M.D., who delineated the nature and likely source of Avila's wounds. Additionally, the State called several of the alleged co-conspirators--Mercado, Tufino, and Patel--each of whom testified pursuant to a plea agreement. The State also presented the video of defendant's second police interview.

The defense's essential position at trial was that defendant had been a mere bystander to the events in question, and that he had not agreed to take part, nor participated, in a criminal plan to rob or hurt the victim. His counsel stressed that there was no scientific evidence, such as bloodstains or DNA, linking defendant to the victim. In addition, the footprints found around Avila's body did not match those of defendant. Moreover, defendant was not found in possession of a knife, and the knife used in the stabbings was not recovered.

Defendant did not testify at trial. His sole trial witness was Detective Eduardo DeHais of the Passaic Police Department, who had conducted the initial interrogation of Tufino. DeHais testified that Tufino had said nothing in his initial interview about spending substantial time with others at 99 Gregory Avenue on the night of the stabbing. The defense offered this proof in an effort to impeach Tufino's differing account at trial.

Following the charge conference, both counsel delivered their respective summations. The trial judge then instructed the jury on the applicable law. Defense counsel did not object to the charge as it was stated in open court.

The jury returned a verdict convicting defendant of first-degree robbery, felony murder, and second-degree conspiracy to commit robbery. The jury acquitted defendant of the two weapons charges.

Five months later, the judge sentenced defendant. After merging the conspiracy and robbery counts into the felony murder count, the judge imposed a forty-year sentence, subject to an eighty-five percent parole ineligibility period under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2a. In his sentencing analysis, the judge found that aggravating factors three (the risk of re-offense), N.J.S.A. 2C:44-1a(3); six (defendant's prior record and the serious nature of the present offense), N.J.S.A. 2C:44-1a(6) and nine (the need for deterrence), N.J.S.A. 2C:44-1a(9), applied, and that no mitigating factors under N.J.S.A. 2C:44-1b pertained. Among other things, the judge specifically noted that defendant had been on probation at the time of the instant offenses, and that he had failed to show appropriate remorse. The judge also ordered defendant jointly and severally responsible, along with Nieves and Toribio, for $3500 in financial restitution.

On appeal, defendant identifies numerous alleged flaws in the court's charge to the jury. He also challenges the severity of his sentence. More specifically, his brief raises the following points:

POINT I

AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below)

POINT II

THE JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY AND LESSER-INCLUDED OFFENSES WERE MANIFESTLY ERRONEOUS IN FOUR DIFFERENT WAYS, ALL OF WHICH SERVED TO DENY THE DEFENDANT A REALISTIC CHANCE AT A VERDICT FOR A LESSER-INCLUDED OFFENSE. (Not Raised Below)

A. The Jury Instructions on Accomplice and Co[-]conspirator Liability Did Not Comply with State v. Bielkiewicz.

B. An Instruction Should Have Been Given on Attempted Theft as a Lesser-Included Offense of Robbery.

C. The Repeated Jury Instructions Not to "Consider" the Lesser-Included Offenses Unless the Jury Acquitted Defendant of Robbery Was Precisely the Type of Sequential-Deliberation Instruction that is Forbidden by State v. Zola and State v. Coyle.

D. The Jury Instruction on the Lesser-Included Offense of Conspiracy to Commit Theft was Woefully Incomplete, Failing Even to Mention the Elements of that Crime.

POINT III

IT WAS GROSSLY IMPROPER--BECAUSE IT IS A LEGAL NON SEQUITUR--AND AN OBVIOUS VIOLATION OF STATE V. DARBY TO TELL THE JURY THAT DEFENDANT COULD BE CONVICTED AS AN ACCOMPLICE TO FELONY MURDER IF HE ACTED WITH A "PURPOSE TO PROMOTE OR FACILITATE" FELONY MURDER. (Not Raised Below)

POINT IV

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

We have carefully considered each of these points, along with supplemental post-argument submissions that we requested from the parties addressing the implications of the Supreme Court's opinion in Ingram, supra, respecting the accomplice liability charge. We have also granted a post-argument motion by the State to correct certain inaccurately-transcribed*fn6 passages of the jury charge, a motion which defendant did not oppose.

II.

Taking defendant's points slightly out of order, we first examine what turns out to be the pivotal question: whether the jury charges on accomplice liability in this case comported with the model charge and with the governing law, particularly Bielkiewicz and Ingram. Before we analyze that issue in detail, we reiterate some general and well-settled principles about the importance of clear and complete jury instructions in a criminal case, and our role as a reviewing court in assuring that such necessary guidance to the jury has, in fact, been provided.

"Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981); see also State v. Savage, 172 N.J. 374, 387 (2002). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004); see also State v. Rhett, 127 N.J. 3, 5-7 (1992) (noting the due process and fair trial rights that are safeguarded by proper jury charges); State v. Fair, 45 N.J. 77, 93 (1965).

We are mindful that defendant's trial counsel did not object to any of the facets of the jury charge now complained of in this appeal. Although the plain error standard of Rule 2:10- 2 consequently applies to our review of the charge issues, we must assure that any defects in the charge, even in the absence of timely objection, were inconsequential. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "'inadequate to guide the jury in the course its deliberation should take,'" the defendant's conviction must be reversed. Id. at 290 (quoting State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996)). Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998).

In evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we must consider those defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999). The alleged error must be "viewed in the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). If, upon reviewing the charge as a whole, the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).

Additionally, the "[u]se by the court of model jury charges is recommended as a method, albeit not perfect, for avoiding error." Pressler, Current N.J. Court Rules, comment 8.1 to R. 1:8-7 (2010); see also State v. Pleasant, 313 N.J. Super. 325, 333-35 (App. Div. 1998), aff'd o.b., 158 N.J. 149, 150 (1999). At times "it may be necessary for the court to adapt the model jury charge to the facts in evidence, and failure to do so will constitute error." Pressler, supra, comment 8.1 to R. 1:8-7.

A.

With these guiding principles in mind, we turn to the critical issue of how the jury was charged in this case on the issues of accomplice liability. The charge on those accomplice issues is particularly important here as a practical matter, because the jury's finding of defendant's guilt of acting as an accomplice to the robbery of Avila was a necessary predicate to the felony-murder conviction, the most serious crime for which defendant was convicted. The jury's separate finding of defendant's guilt on the conspiracy count is insufficient, as a matter of law, to provide an underlying felony that can support the felony-murder charge under N.J.S.A. 2C:11-3a(3), because a conspiracy involves only an agreement to commit criminal acts rather than the actual commission of those substantive acts. See State v. Grey, 147 N.J. 4, 15 (1996) (noting that, under N.J.S.A. 2C:11-3a(3), "the substantive crime of conspiracy is not a predicate offense for felony murder"). Moreover, a finding of guilt on simple theft, rather than robbery, would likewise be inadequate to support a conviction for felony murder, even if the victim's death ensues from the theft. See N.J.S.A. 2C:11-3a(3) (listing robbery, but not theft, as a predicate offense to felony murder); see also State v. Gonzalez, 318 N.J. Super. 527, 536 (App. Div.), certif. denied, 161 N.J. 148 (1999).

"[W]hen a prosecution is based on the [State's] 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." Bielkiewicz, supra, 267 N.J. Super. at 527. A critical aspect of such accomplice liability is whether the alleged accomplice possessed the same culpable state of mind of the principal actor, or alternatively, whether the accomplice's mindset was not as culpable and the accomplice provided assistance to the principal with a state of mind that only sought to achieve a less serious offense. Id. at 527-28.

Where the proofs reasonably suggest that a defendant could be convicted of a lesser-included offense than that of a co-perpetrator, the court should "make specific reference to those [lesser] offenses in the context of its charge on accomplice liability." Harrington, supra, 310 N.J. Super. at 278 (overturning robbery, murder, and assault convictions where the jury was not instructed that, even if it found that the principal was guilty of the higher-degree offenses, it could find the co-defendant guilty as an accomplice to lesser-degree offenses). The failure to supply such guidance creates a "risk that the jury will compromise on a guilty verdict for the greater offense." Bielkiewicz, supra, 267 N.J. Super. at 534.

Under the facts in Bielkiewicz, we addressed circumstances in which the co-defendant had been convicted as an accomplice to murder, but the jury charge had not made clear that even if the principal had taken the victim's life purposefully or knowingly, the accomplice could have had a lesser state of mind of recklessness, and thus be guilty as an accomplice to the lesser offenses of aggravated manslaughter, manslaughter or assault. Id. at 531. Although defense counsel in Bielkiewicz had not objected to that omission from the charge at trial, we held that the flaw nonetheless was reversible error because the charge "did not convey an accurate and complete understanding of these [accomplice liability] principles." Id. at 530. In particular, we found that the trial court: failed to tell the jury that if it found the accomplice had the purpose to promote or facilitate an assault upon the victim, but did not share the principal's purpose to cause death or serious bodily injury, he should be acquitted of murder but could be found guilty of aggravated manslaughter, manslaughter, or assault. [Id. at 534.]

As the result of that omission, "the court's instructions could have given the jury the impression that if they found the principal guilty of murder they would be required either to acquit or also to convict the alleged accomplice of murder." Ibid.

For those reasons, we concluded in Bielkiewicz that the defect in the charge had the clear capacity to lead to an unjust result, even though defense counsel had not timely objected. We thus vacated the conviction and remanded for a new trial. Id. at 535; see also Harrington, supra, 310 N.J. Super. at 278 (applying Bielkiewicz and reversing a conviction based on accomplice liability); Jackmon, supra, 305 N.J. Super. at 289 (same).

In ensuing cases, our Supreme Court has endorsed and applied these fundamental requirements emanating from Bielkiewicz. See, e.g., Savage, supra, 172 N.J. at 388; State v. Rumblin, 166 N.J. 550, 556 (2001); State v. Norman, 151 N.J. 5, 37 (1997). The Court has also approved a detailed Model Criminal Jury Charge for accomplice liability that spells out these principles, a charge which accentuates for the jurors the logical possibility that they might find an accomplice to have a less culpable state of mind than a principal actor, and be guilty of a lesser-included offense than his or her counterpart. Model Jury Charge, Criminal, "Liability For Another's Conduct/Accomplice," N.J.S.A. 2C:2-6 (revised May 22, 1995).

These principles readily apply to the property-based crimes of theft and robbery. Theft, by definition, is a lesser-included offense of robbery. See State v. Lopez, 187 N.J. 91, 98 (2006); see also N.J.S.A. 2C:15-1a (robbery) and N.J.S.A. 2C:20-1 to -37 (theft and related offenses). Theft, in its basic form, comprises the "unlawful taking or exercise of unlawful control over property of another with purpose to deprive him thereof." State v. Carlos, 187 N.J. Super. 406, 412 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983); see also N.J.S.A. 2C:20-3 (theft by unlawful taking or disposition). Robbery, by contrast, is a more serious offense because it requires not only proof of a theft but also proof that the theft occurred by use of force, fear or intimidation. See State v. Walton, 368 N.J. Super. 298, 308-09 (App. Div. 2004); see also N.J.S.A. 2C:15-1a.

In Ingram, supra, the Supreme Court reaffirmed its endorsement of the requirements of Bielkiewicz, doing so in a factual context involving issues of theft and robbery. The defendant, Ingram, was accused of participating as an accomplice in a criminal venture in which the occupants of an apartment were accosted by several men at gunpoint. Ingram, supra, 196 N.J. at 29-32. Ingram had driven two of the men in his car to the apartment building. He briefly went inside the building with the men, and then returned back to his car. While Ingram was waiting in his car, a safe was removed from the apartment building. Then a gunshot was fired inside the apartment, killing one of the occupants. Ingram's two passengers left the building, and got back into his car. Ingram drove away, dropped off his passengers, and was paid in cash for his services. Id. at 30-31.

Ingram was subsequently indicted and charged with felony murder, robbery, theft, conspiracy, and other offenses. Id. at 32. At trial, his counsel contended that defendant had neither agreed to take part in a robbery or a shooting, nor had he acted with a state of mind to do so. The jury was charged, among other things, with the elements of robbery and theft. However, in the accomplice liability portion of the charge, the trial judge neglected to use the model charge containing the Bielkiewicz language respecting state of mind and lesser-included offenses. Id. at 40. On appeal, Ingram argued that these omissions from the charge required a new trial.

In examining these issues in Ingram, the Court "reaffirm[ed] the principles [that] Bielkiewicz sets forth," including the "core and indisputable notion: that a principal and an accomplice, although perhaps liable for the same guilty act, may have acted with different or lesser mental states, thus giving rise to different levels of criminal liability." Id. at 41. The Court further "underscore[d] the need to so instruct the jury when liability is sought to be imposed on an accomplice." Ibid. Following these principles, the Court agreed that it would have been preferable for the trial judge, even in the absence of a specific request by defense counsel, to have additionally charged to jury that it was possible that Ingram, as an accomplice, was only guilty of the lesser offense of theft even if the perpetrators that he had driven to the apartment building were guilty of the more culpable offense of robbery. Ibid.

Even so, the Court declined to set aside Ingram's conviction on this basis because "the indictment in fact charged defendant with both robbery and theft, and the jury was instructed as to both [offenses] without objection." Id. at 40. As the Court wrote:

In these circumstances, where the indictment substantively charged defendant with both the greater and lesser-included offenses, and the trial court properly instructed the jury in respect of each, the evil Bielkiewicz seeks to guard against--that is, that the jury could have found that one or more of the defendants were guilty of robbery while also finding that one or more of the defendants were guilty only of the lesser-included offense theft--does not pose the same risk. [Ibid. (emphasis added).]

Consequently, the Court in Ingram declined to find a reversible error stemming from the jury charge's inadvertent omission of the clarifications called for under Bielkiewicz. Id. at 41. However, the Court did set aside Ingram's conviction on another, unrelated ground, arising from the trial court's improper issuance of a special charge concerning defendant's flight and his absence from the trial proceedings. Id. at 41-50.

In the present case, we are likewise confronted with a situation in which a defendant is accused of being involved, at least as a supporting player, in a fatal robbery. Like Ingram, defendant here was charged with being an accomplice to a robbery, and thereby guilty of a felony murder because of the death that ensued from that robbery.

The trial judge correctly recognized that the special model charge on accomplice liability containing the Bielkiewicz admonitions was appropriate to read to the jurors. For reasons that are not clear to us, however, the judge skipped critical passages of that model charge when he actually addressed the jurors. For instance, near the beginning of the spoken charge, the judge properly began with the model language generally explaining the legal role of an accomplice:

A person is an accomplice of another person in the commission of a crime when, with the purpose of promoting or facilitating the commission of a crime, he A) solicits such other person to commit it and/or B) aids, agrees[,] or attempts to aid such other person in planning or committing it.

Prior to this statement, but after quoting the statutory provision which applies to accomplice liability, the judge further quoted the model charge by saying that "[t]his provision of the law means that not only is the person who actually commits the criminal act responsible for it, but one who is legally accountable for the acts of another is also responsible and punishable as if he committed the crimes himself."

However, the judge then omitted the following important sentence that should come immediately thereafter: "Now this responsibility as an accomplice may be equal and the same as he/she who actually committed the crime(s) or there may be responsibility in a different degree depending on the circumstances as you may find them to be." Model Jury Charge, Criminal, supra.

As the accomplice charge progressed, the judge left out other vital passages. In particular, he omitted the following words that explain and emphasize for the jurors the possibility that an accomplice's state of mind may be for a lesser offense, rather than the offense committed by the principal offender:

Now, as I have previously indicated, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice of X with full and equal responsibility for the specific crime(s) charged. If you find the defendant guilty of the specific charge(s), then you need not consider any lesser charge(s).

If, however, you find the defendant not guilty of acting as an accomplice of X on the specific crime(s) charged, then you should consider whether the defendant did act as an accomplice of X but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment. [Ibid.]

These omissions were partially ameliorated by the judge then returning to the model text, and advising the jurors that:

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 own state*fn7 of mind and not on anyone else['s].

The judge then deleted the following passage from the model charge, which would have helpfully tied these general accomplice principles for the jurors to the specific lesser-included offenses in question, here, being theft:

Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of_________________________.

I will now explain the elements of that offense to you. (Here the court may tell the jury what view of the facts could lead to this conclusion). [Model Jury Charge, Criminal, supra.]

After skipping this passage, the judge returned again to the model charge's general language:

In considering whether the defendant is guilty or not guilty as an accomplice to the crimes of robbery and felony murder as charged in the indictment or to the lesser included charge of theft, remember that each person who participates in the commission of [an] offense may do so with a different state of mind and liability or responsibility of each person is dependent on his own state of mind and of no one else.*fn8

At this point, the judge omitted the last fifteen*fn9 lines from the model charge. These fifteen lines very explicitly set forth the State's burden of proof of establishing the accomplice's liability for a lesser-included offense, as follows:

Therefore, in order to find the defendant guilty of the lesser included offense(s) of _________________, the State must prove beyond a reasonable doubt:

1. That X committed the crime(s) of _____________________, as alleged in the indictment, or the lesser included offense of____________________________.

2. That this defendant solicited X to commit {lesser included offense} and/or did aid or agree or attempt to aid him/her in planning to commit {lesser included offense}.

3. That this defendant's purpose was to promote or facilitate the commission of {lesser included offense}.

4. That this defendant possessed the criminal state of mind that is required for the commission of {lesser included offense}.

If you find that the State has proven each one of these elements beyond a reasonable doubt, then you must find the defendant guilty. If on the other hand you find that the State has failed to prove one or more of these elements beyond a reasonable doubt, then you must find the defendant not guilty. As I have previously indicated, your verdict(s) must be unanimous. All twelve jurors must agree as to guilty or not guilty. [Model Jury Charge, Criminal, supra.]

These fifteen lines, when properly read, supply an element-by-element delineation for the lesser-included offense, one which parallels the element-by-element delineation of the higher-degree offense that is read to the jury in an earlier portion of the accomplice charge.

We do not know why these critical passages of the accomplice charge were omitted. What we do know is that the level of defendant's culpability in the attack on Avila, and the criminality of his individual state of mind, were hotly disputed at this trial. In summations, defense counsel essentially portrayed his client as an innocent bystander, or tag-along, to the group that took Avila's money and eventually his life. The prosecutor, meanwhile, urged the jurors, despite the lack of forensic proofs incriminating defendant, to find that he had consciously agreed to take part in a robbery, and that he had willingly helped effectuate the forcible taking of Avila's money.

In other words, there was a legitimate debate here about whether the proofs should be construed to treat defendant as someone who intended to be a robber, or simply a thief. For example, the jury, if it had been properly instructed, might have rationally inferred that defendant expected the drunken patron to have parted with his money without any use of force, or without a threat of force. Although we agree with the State that such an inference was not the most probable one, there was sufficient room here for a jury to have found defendant not guilty beyond a reasonable doubt of robbery but guilty instead of the lesser-included crime of theft.

We are mindful that here, as in Ingram, the jury was instructed in another portion of the overall jury charge with the elements of theft. The key difference is that here, unlike in Ingram, theft only came into play as a lesser-included offense. Defendant, in contrast to Ingram, was not indicted for theft. The crime of theft was charged in this case only provisionally, not to be reached by the jury unless it first found defendant not guilty of robbery. Theft was not a separate listed offense on the verdict sheet in its own right, but merely an appendage to the robbery count as a conceivable lesser-included offense.

This case is thus factually distinguishable from Ingram. That critical difference--which the Court emphasized several times in Ingram by stressing the inclusion of theft in the indictment--leads us to conclude that the multiple and lengthy omissions from the model charge were serious errors that had the clear capacity, under the principles of Bielkiewicz, to deprive defendant of a fair trial. See Ingram, supra, 196 N.J. at 40. We do not suggest that the model charge must be rigidly employed. The charge must be appropriately molded in each case. We point to the omissions from the model charge in this particular case to illustrate how critical elements were omitted to the prejudice of defendant.

Accordingly, we vacate the judgment of conviction and remand for a new trial on all of the offenses charged in the indictment, except for the weapons offenses that resulted in an acquittal and which cannot be retried under double jeopardy principles. We specifically order a new trial on the conspiracy count as well as the robbery and felony-murder counts because of the intertwined nature of the state-of-mind proofs, and the possibility that the errors in the accomplice charge might well have contaminated the jury's thought process when they pondered the conspiracy count.

B.

We have duly considered the remaining arguments presented by defendant respecting other aspects of the jury instructions, and find that they lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2). We add only a few short remarks because the case will have to be retried and the same issues may develop, subject to adjustments at the charge conference depending upon the actual proofs and events at the retrial.

The jury charge as a whole did not fail, as defendant contends, to define a criminal "attempt" sufficiently, and thereby violate the precepts of Gonzalez, supra, 318 N.J. Super. at 535-36. An attempt to commit theft is robbery if done with force, threat, or intimidation, by definition under N.J.S.A. 2C:15-1a. Although the judge did not define an attempt in fulsome terms within the portion of the charge reciting the elements of robbery, the judge thereafter correctly explained, within the charge on accomplice liability, that an "attempt" to aid a robbery entails the taking of "substantial steps in a course of conduct designed or planned to lend support or assistance . . . to cause the commission of the particular crimes under consideration." Cf. N.J.S.A. 2C:5-1a(3) (delineating the "substantial steps" formulation in the definition of an attempt); see also State v. Smith, 322 N.J. Super. 385, 399 (App. Div.) (finding the inclusion of a definition of attempt in a later part of the jury charge ameliorated its omission from the robbery portion), certif. denied, 162 N.J. 489 (1999). Moreover, given the fact that the victim here was found with far less money on his person than the amount that his pay stub reflected, the instant case is factually unlike Gonzalez, where the State was unable to offer "any evidence" that the victim had been actually robbed. Gonzalez, supra, 318 N.J. Super. at 532-33. In sum, we detect no reversible error on the attempt issue.

We are equally unpersuaded that attempted theft should have been included by the trial court as a lesser-included offense to robbery. The jury was instructed that theft is a lesser-included offense to robbery. Since attempted theft is already subsumed within the crime of robbery, see N.J.S.A. 2C:15-1a, it is inconsequential that the court did not charge "attempted" theft as a lesser-included offense.

We also disagree with defendant that the court erred in charging the lesser-included offense of theft in a sequential fashion, whereby the jury was told that it need not consider theft if it were convinced beyond a reasonable doubt of defendant's guilt of robbery. As we already pointed out in Part II.A, supra, the robbery-then-theft sequence became problematic within the accomplice liability charge because the court skipped critical passages of that charge expounding on the theft alternative. However, there is fundamentally nothing wrong with a sequential ordering of greater and lesser included offenses. See State v. Cooper, 151 N.J. 326, 366 (1997), cert. denied, 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed. 2d 681 (2000).

Nor is there any reversible error stemming from the court's brief instruction on the lesser-included offense of conspiracy to commit theft. That particular charge incorporated by reference a very detailed explication of the offense of conspiracy to commit robbery. Although the jury may have benefited from hearing those same conspiracy concepts repeated in the context of the lesser crime, defendant was not manifestly prejudiced by the judge cross-referencing what he said moments before. The conspiracy charge, when properly viewed as a whole, was adequate.

Lastly, we discern no situation here comparable to State v. Darby, 200 N.J. Super. 327, 330-31 (App. Div. 1984), certif. denied, 101 N.J. 226 (1985), in which the trial judge had improperly confused the jury by suggesting that felony murder had its own mens rea elements, rather than deriving from the underlying predicate offenses. The trial judge's stray comment here within the accomplice liability charge alluding to whether defendant acted "purposely, to promote or facilitate the particular crimes of robbery and felony murder" was harmless, given that the judge had already painstakingly and correctly defined felony murder--without its own mens rea element--when he covered felony murder at length in that discrete portion of the charge.

III.

Our remand for a new trial makes it unnecessary for us to comment on defendant's claim that his sentence was excessive. Suffice it to say that the judge's identification and weighing of the pertinent aggravating factors was, on the whole, well grounded in the trial evidence, and warrants our appellate deference. See State v. Bieniek, 200 N.J. 601, 607-08 (2010). The sentence was appropriately severe, not manifestly excessive, and within the trial court's discretion. State v. Roth, 95 N.J. 334, 363-65 (1984).

Vacated and remanded for a new trial.


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