August 16, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JASON WILSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-08-1771.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 8, 2010
Before Judges Parrillo and Ashrafi.
Defendant Jason Wilson appeals from his conviction by a jury on charges of armed robbery, aggravated assault, conspiracy, and a weapons offense. We affirm the jury's verdict, but we remand for correction of the sentence.
The evidence at trial established the following facts. In May 2006, the victim of the robbery was involved in casual sexual relationships and use of illegal drugs with Sarah Marciano and Mary Ann Spry-Summa, who went by the name Shelly. On the night of May 4, 2006, the victim called Shelly and asked her to meet him "to party." Unbeknownst to the victim, Shelly and Sarah wanted to steal drugs from him, and they had enlisted defendant's participation for that purpose.
Shelly picked up the victim in her car near his home. The victim gave her a pipe filled with crack cocaine to smoke. As they drove a short distance around the corner from his home, the victim saw Sarah outside in the company of an African-American male, whom the victim later described as bald, muscular, and about five feet seven inches in height. Shelly stopped to pick up Sarah and her companion. Sarah approached the car and told the victim to get in the back seat so that they could "hang out" together. Displeased with Sarah at the time and wary of the stranger, the victim declined and started to walk back to his house.
Sarah pushed the victim, and her companion punched him in the mouth, knocking the victim to the ground and causing the loss of his front teeth. The victim felt someone going through his pockets, where he had only five dollars, two condoms, and a pack of cigarettes. Sarah's companion then stabbed the victim twice in the stomach, and he passed out.
After he regained consciousness, the victim made his way back to his house and called Shelly, initially believing that he was not badly injured. Shelly came back to his house, and they left to buy drugs. Later in the night, however, the victim had trouble breathing. He called 911 and was taken by ambulance to a hospital. The medical examination revealed two lacerations to his liver, and emergency surgery was performed to stop the internal bleeding.
In their investigation, the police found blood on the street in the area where the robbery and assault had occurred and on the front porch of the victim's house. Several days later, the police interviewed Shelly and Sarah and obtained admissions from them and information about defendant, who fit the physical description given by the victim. The police arrested defendant and found on his person an address book that contained telephone numbers for Shelly and Sarah.
Defendant was indicted, along with Shelly and Sarah, on charges of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The two women entered into plea agreements with the State by which they agreed to testify at defendant's trial. Sarah pleaded guilty to second-degree robbery and Shelly to second-degree conspiracy. After they testified at defendant's trial, the women received sentences of imprisonment in the third-degree range.
In their testimony at the trial, the women inculpated themselves and defendant in the crimes as described. Both women were also questioned about their pleas of guilty and their plea agreements with the State. Neither the State nor defendant requested a limiting instruction on the jury's proper use of the women's guilty pleas, as required by State v. Stefanelli, 78 N.J. 418, 435 (1979), and the court did not give such an instruction. Defendant did not testify at trial and did not present any witnesses. The jury convicted defendant on all four charges.
At sentencing, the court granted the State's motion for a mandatory extended term under N.J.S.A. 2C:43-7.1b and sentenced defendant on the first-degree charge of armed robbery to twenty-one years in prison, with eighty-five percent of the term to be served before eligibility for parole and five years of parole supervision, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed concurrent sentences and statutorily mandated money penalties on the other three counts of conviction.
On appeal, defendant argues:
THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEAS ENTERED BY TWO ALLEGED ACCOMPLICES DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
DEFENDANT'S CONVICTIONS OF A CONSPIRACY, AGGRAVATED ASSAULT, AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE MERGED INTO THE CONVICTION OF FIRST DEGREE ROBBERY.
Because defendant raised no objection at the time of trial and did not request a limiting instruction, we review defendant's contention of error in admission of the cooperating women's testimony under the plain error standard of review. R. 2:10-2; State v. Adams, 194 N.J. 186, 206 (2008). Under that standard, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see State v. Timmendequas, 161 N.J. 515, 576-77 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). The error must have been of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached. State v. Branch, 182 N.J. 338, 353 (2005); State v. Brims, 168 N.J. 297, 306 (2001); State v. Macon, 57 N.J. 325, 336 (1971); State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000). In this case, we conclude the trial court's failure to give a limiting instruction on proper use of the co-defendants' guilty pleas did not lead the jury to a result it would not have otherwise reached.
At trial, both Sarah and Shelly were questioned on direct examination by the prosecutor about entry of their guilty pleas. They gave brief testimony confirming they had pleaded guilty to second-degree charges through plea agreements with the State. Defense counsel cross-examined the women at length about the charges they were facing and their potential sentencing exposure, their plea agreements, charges that the State had agreed to dismiss, their becoming acquainted while in a drug rehabilitation program, their smoking of crack cocaine, and other matters suggesting that they were persons of bad character and pertinent to their credibility as witnesses against defendant.
Defense counsel also questioned each about inconsistencies in her statement to the police a few days after the robbery and, with respect to Shelly, her balking at providing a factual basis at the time of her guilty plea to the charge of conspiracy. As a result, the prosecutor returned to the subject of their guilty pleas during redirect examination. At no time did defense counsel object to the content of their testimony about the guilty pleas or request an instruction to the jury on the proper use of that testimony.
In Stefanelli, supra, 78 N.J. at 434, the Court held that a co-defendant's guilty plea was admissible for purposes of evaluating the credibility of the co-defendant as a witness. But the Court also warned that "when a guilty plea of a co-defendant is brought to a jury's attention without any guiding instructions as to its use in their deliberations, the potential for misuse is manifest." Id. at 435. The trial court was obligated to give a cautionary instruction to the jury "as to the limited use of this testimony." Id. at 434. The Court stated further that the absence of a limiting instruction was "an important factor in determining whether the admission of the plea constitutes harmless error." Id. at 435. Because the co-defendant in Stefanelli had given extensive testimony about his complicity in the crime and the defendant's participation, the trial court's failure to instruct the jury properly was deemed to be harmless error. Id. at 436-37.
Likewise, the Court in Adams, supra, 194 N.J. at 206-09, conducted a similar analysis of the trial record and concluded that failure to give a limiting instruction to the jury about a co-defendant's guilty plea was harmless error because it "did not have the clear capacity to produce an unjust result." Id. at 209 (quoting Stefanelli, supra, 78 N.J. at 437).
On the other hand, in State v. Murphy, 376 N.J. Super. 114, 123-25 (App. Div. 2005), we reversed the defendant's conviction for failure to instruct the jury about the prohibited uses of two co-defendants' guilty pleas. In Murphy, the trial court had compounded the error by instructing the jury about the court's role in accepting plea agreements and in taking a guilty plea, informing the jury that the court would not accept a guilty plea unless the judge was satisfied that the individual was in fact guilty of the charge. Id. at 121-23.*fn1
In this case, there is no aggravating circumstance that renders the evidence of co-defendants' guilty pleas more prejudicial than the factual circumstances present in Stefanelli and Adams. Like those cases, the two women co-defendants gave detailed testimony about their own involvement, along with defendant, in the planning and carrying out of the robbery. They had both given incriminating statements to the police a few days after the robbery, and, in those statements, both had implicated defendant as the man who assaulted the victim by punching and stabbing him. The statements were the subject of extensive examination at the time of trial, both on cross-examination and on redirect. Therefore, the statements, more so than their guilty pleas, implicated themselves and defendant in the crimes.
Both witnesses were subjected to vigorous cross-examination about their motivations and incentives to name defendant as an accomplice in order to obtain favorable treatment for themselves under their plea agreements. In addition, the cross-examinations highlighted their bad character and general untrustworthiness, and the inconsistencies between their trial testimony and their earlier statements.
We conclude that the absence of a limiting instruction as required by Stefanelli, supra, 78 N.J. at 435, did not have a clear capacity to produce an unjust result in this case. It was not plain error.
As to sentencing, the State concedes defendant's point and agrees that the three lesser-degree counts of conviction should have been merged with the charge of first-degree robbery for purposes of sentencing.
We affirm defendant's conviction but remand for correction of the sentence by merging counts one, three, and four into count two.