On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-09-1276.
The opinion of the court was delivered by: Carchman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 2009
Before Judges Carchman, Parrillo and Ashrafi.
Defendant Jesse Belliard appeals from an August 17, 2007 judgment of conviction for first-degree robbery, N.J.S.A. 2C:15-1; first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); and aggravated manslaughter, N.J.S.A. 2C:11-4(a). Defendant now asserts that the trial judge committed a number of errors, which prejudiced defendant's right to a fair trial. We agree that the judge erred as to the charge on causation and conclude that the error was sufficient to warrant a new trial as to the felony murder conviction. Accordingly, we reverse and remand for a new trial on that charge. As to the other convictions, we affirm.
On February 26, 2006, at approximately 12:30 a.m., Alejandro Morales and Francisco Urbina Serrano were walking down Hale Street in New Brunswick. Several people were standing in front of 175 Hale Street, and one of the individuals approached Serrano, asking for a cigarette. Serrano was, at that time, standing between two houses, in front of an alley and four concrete steps that led to a concrete walkway below. The vertical drop of the steps was approximately thirty-three inches.
While Serrano was standing in front of the alley, another individual, later identified as defendant, held Serrano by the shirt, struck him and pushed him down the steps into the alley. Defendant fled immediately thereafter. Other witnesses stated, however, that a group of people were involved in beating Serrano both before and after he fell down the steps.
New Brunswick police officers William Contreras and Ronnie Cheng arrived at Hale Street only a minute or two after the incident. At that time, Serrano was "laying in his son's lap... and... was unresponsive...." Morales provided officer Contreras with a physical description of the assailants, and Contreras communicated the information over the police radio.
The police also identified two witnesses to the assault -Stephanie Contreras and Eleidie Torres. Torres was interviewed at 8:03 a.m. and at 9:45 p.m. on February 26th, and she stated that when she and Contreras arrived on Hale Street, prior to the incident, defendant told the girls to get out of the area because "[t]hey had to handle some business." Torres further stated that she saw defendant strike Serrano in the face, and Serrano fell down the steps. Contreras was interviewed at 11:36 p.m. on February 26th, and she stated that she saw defendant "holding the guy from the shirt. And they... was right on the first stair." Defendant then "hit him in the stomach, turned him around and, to the side," and pushed him down the steps.
Five police officers - three investigators and two uniformed officers - went to defendant's home to speak with him about the crime. The police officers explained to defendant, who was seventeen years old, and defendant's mother, Judy Tajada, "what was going on[,]" and defendant and his mother were taken to the police station in two separate cars. Defendant was not placed in handcuffs and was not under arrest.
When defendant arrived at the police station, he was interviewed by Sergeant Investigator Ivan Scott, Detective Rodney Blount and Detective Daniel Dominguez, to translate for defendant's mother. At the beginning of the interview and prior to defendant being read his Miranda*fn1 rights, Judy Tajada wanted to know what had happened. The police did not answer her question, but stated, "we'll go through everything, there's some stuff I [got to] do first anyway so, we'll, we'll go through it." The detectives then informed defendant and his mother of defendant's Miranda rights, and defendant and his mother waived their rights. At no point during the interview was defendant told that he was under arrest.
Defendant then made the following statement:
Well I was with my, my boy and chillin' on the block whatever and a dude came up to me and told me that he wanted to rob somebody.
Um, I know the guy but yea you know what I mean.
And I didn't want any have any part with that.
He kept insisting, insisting and I figured I was like whatever cause he was just gonna keep bothering me and he was, he was this Mexican cat, two Mexican cats....
....... And whatever he's talking to me I'm like I don't wanna have any part with this, he keeps insisting whatever so I'm like whatever. All he wanted me to do was push one of the guys into a like, into his hands where like him and dude was alone. I did it, I don't what, whatever he did with that dude I don't know, then the other cat that was with him when I did that he looked at me funny and then he went up this porch, knocked on the window and that's when I took off, I ran.
Defendant described the person who incited the robbery as a Dominican man, Jesus Tejada. Defendant also stated, inconsistently, that he saw Serrano fall into the other person's arms, but then also stated that he did not see what happened when Serrano fell because he "wanted to watch [his] back [to] make sure the other dude didn't attack [him]...."
While defendant gave his statement, Detective Dominguez translated the conversation to defendant's mother, and defendant asked, "Need help? Want me to tell her?" Detective Dominguez replied, "No. Cause you could listen and I have no reason to lie." Nonetheless, defendant communicated to his mother throughout the interview in Spanish.
Also during the interview, defendant's mother stated that she "support[ed] everything [the police] are doing, if my kid is responsible for anything... he has to pay for what he did.... I'm not going to hide behind anything.... If he's responsible, if he's guilty, you have my permission to go." When the police were questioning the veracity of defendant's statements, defendant stated, "Yo like for real man, ya'll need to stop this cause I'm just about to stop saying, talking, whatever and ya'll can just lock me up to do whatever you got to do, like for real, I have no reason to lie to anyone."
As a result of the fall, Serrano suffered fractures on the right and left side of his skull, as well as the base of his skull. These caused severe brain hemorrhage and craniocerebral injuries, and Serrano died as a result of these injuries.
Following his being indicted, defendant filed a motion "to suppress [his] statement and all evidence derived from his illegal arrest." After the hearing, at which Sergeant Scott, Detective Selesky, Detective Blount, defendant's mother and defendant testified, the judge determined that it was "at least arguable that he was saying that he wanted to stop talking[,]" when defendant stated that the police could "lock [him] up." As a result, the police had a duty to "stop questioning him and to reconfirm that he was willing to speak to them and to readvise him of his Miranda rights, which they did not do[.]" Therefore, defendant's statements were admissible only up to that point in the interview. However, despite the Miranda violation, the judge determined that defendant's statements were given voluntarily, and the remainder of defendant's statements were available to impeach defendant's credibility if defendant was to testify at trial.
Defendant's trial was held in July and August 2007. At trial, the State first proffered Officer Contreras, and he testified to Morales's account of the attack on Serrano. The State also played a videotape of defendant's redacted interview with Sergeant Scott.
Stephanie Contreras and Eleidie Torres also testified, but both stated that their earlier statements to the police were not true and that they were scared or coerced into making their statements implicating defendant. Contreras and Torres also claimed to be drunk on the night of February 26th. However, the State played an audiotape of Stephanie's interview with the police, as well as a redacted audiotape of Eleidie's statements to the police, which were admitted substantively, as prior inconsistent statements.
Defendant acknowledged pushing Serrano. His primary defense was that he had no intent to rob Serrano, and he "wanted nothing to do with the robbery," but "merely pushed and ran...." Defendant's other defense was that "the injuries [to Serrano] occurred... after [defendant] had left the scene."
Defendant was found guilty of first-degree felony murder and second-degree robbery, but acquitted of first-degree robbery and aggravated manslaughter. Defendant filed a motion for a new trial, asserting that the judge should have suppressed defendant's entire statement to the police, that the judge did not correctly charge the jury and the judge erred in an evidentiary ruling. The judge denied defendant's motion.
The judge then merged defendant's robbery and felony murder convictions and sentenced defendant to a term of thirty years imprisonment, with thirty years parole ineligibility.
On appeal, defendant raises the following issues:
I. THE GUILTY VERDICTS FOR ROBBERY AND FELONY MURDER WERE AGAINST THE WEIGHT OF THE EVIDENCE, BECAUSE THE STATE PRESENTED NO EVIDENCE THAT DEFENDANT INTENDED TO COMMIT A THEFT (RAISED BELOW).
II. THE TRIAL COURT COST DEFENDANT A FAIR TRIAL BY OMITTING KEY LANGUAGE ON ATTEMPT AND CAUSATION FROM THE JURY INSTRUCTIONS (NOT RAISED BELOW).
A. THE COURT FAILED TO DEFINE "ATTEMPT" FOR THE JURY.
B. THE TRIAL COURT PROVIDED AN INCOMPLETE CHARGE ON CAUSATION.
III. THE TRIAL COURT'S RESPONSE TO THE JURY'S QUESTION ON CAUSATION UNFAIRLY PREJUDICED DEFENDANT, NECESSITATING A NEW TRIAL (RAISED BELOW).
IV. DEFENDANT'S CONVICTION FOR FELONY MURDER SHOULD BE REVERSED, BECAUSE UNDER THE CIRCUMSTANCES OF THIS CASE, HIS ACQUITTAL OF FIRST DEGREE ROBBERY PRECLUDED A CONVICTION FOR FELONY MURDER, DESPITE HIS CONVICTION FOR SECOND DEGREE ROBBERY (NOT RAISED BELOW).
V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING DEFENDANT'S REQUEST TO CHARGE THE JURY WITH AGGRAVATED ASSAULT AND SIMPLE ASSAULT AS LESSER INCLUDED OFFENSES TO ROBBERY (RAISED BELOW).
VI. THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S STATEMENT WHICH WAS THE PRODUCT OF AN ILLEGAL ARREST WITHOUT PROBABLE CAUSE, IN VIOLATION OF DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEIZURES PURSUANT TO THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I., ¶ 7 OF THE NEW JERSEY CONSTITUTION (RAISED BELOW).
A. DEFENDANT WAS UNDER ARREST WHEN HE WAS REMOVED FROM HIS HOME.
B. THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST DEFENDANT.
VII. THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S STATEMENT WHICH WAS OBTAINED UNDER CIRCUMSTANCES THAT TAINTED ITS VOLUNTARINESS, IN VIOLATION OF DEFENDANT'S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION (RAISED BELOW).
VIII. THE TRIAL COURT'S CANDID PREJUDGING OF THE TESTIMONY DURING THE MOTION TO SUPPRESS REASONABLY LED DEFENSE COUNSEL TO BELIEVE THAT THE COURT COULD NOT BE FAIR AND UNBIASED DURING THE HEARING, AND SHOULD HAVE PROMPTED THE COURT'S RECUSAL PURSUANT TO R. 1:12-1 (RAISED BELOW).
IX. NUMEROUS INSTANCES OF THE TRIAL COURT'S UNNECESSARY INTERVENTION IN THE PROCEEDINGS UNDERMINED THE DEFENSE AND COST DEFENDANT A FAIR TRIAL (PARTIALLY RAISED BELOW).
X. THE TRIAL COURT IMPROPERLY PREVENTED DEFENDANT FROM INTRODUCING EXCULPATORY HEARSAY STATEMENTS OF ALEJANDRO MORALES THAT HAD SIGNIFICANT INDICIA OF RELIABILITY (RAISED BELOW).
XI. THE CUMULATIVE ERRORS COST DEFENDANT A FAIR TRIAL.
XII. THE JUDGMENT OF CONVICTION IS ERRONEOUS.
Defendant argues that the judge's jury instructions "were fatally deficient because they were incomplete." Specifically, defendant claims that the judge failed to define "attempt" for the jury, and the judge provided an incomplete charge on causation. Defendant also argues that the judge erred in providing the jury with an "unreasonable example" of the felony murder affirmative defense. Defendant did not, however, object to the jury instructions at trial.
Pursuant to Rule 1:7-2, a defendant is required to challenge instructions at the time of trial or else waives the right to contest the instructions on appeal. See State v. Adams, 194 N.J. 186, 206-07 (2008). "Where there is a failure to object, it may be presumed that the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003) (citing State v. Macon, 57 N.J. 325, 333 (1971), certif. denied, 177 N.J. 572 (2003)). Therefore, we may reverse only in the presence of plain error, that is error "clearly capable of producing an unjust result." Adams, supra, 194 N.J. at 207 (citing R. 2:10-2). See also State v. Martin, 119 N.J. 2, 15 (1990).
As applied to a jury instruction, plain error requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970). The alleged error is viewed in the totality of the entire charge, not in isolation. State v. DiFrisco, 137 N.J. 434, 491 (1994). In addition, any finding of plain error depends on an evaluation of the overall strength of the State's case. See State v. Cotto, 182 N.J. 316, 326-27 (2005). [State v. Nero, 195 N.J. 397, 407 (2008) (emphasis added) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).]
It is well-established that "[c]orrect charges are essential for a fair trial[,]" and to that end, "the court must explain the controlling legal principles and the questions the jury is to decide." Martin, supra, 119 N.J. at 15. "Although a party is not entitled to a charge in his own words, he is entitled to a charge which fully, clearly, and as accurately as possible sets forth the fundamental issues." State v. Ball, 268 N.J. Super. 72, 112 (App. Div. 1993) (citing State v. Labrutto, 114 N.J. 187, 204 (1989); State v. Green, 86 N.J. 281, 288-89 (1981)), aff'd, 141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116 S.Ct. 779, 133 L.Ed. 2d 731 (1996). The jury charges must, therefore, "relate the law to the facts of a case...." State v. Savage, 172 N.J. 374, 389 (2002).
"[T]he test is to examine the charge in its entirety, to ascertain whether it is either ambiguous and misleading or fairly sets forth the controlling legal principles relevant to the facts of the ...