On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-04-0386.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2011
Decided Before Judges Lisa, Reisner and Sabatino.
In connection with the October 2, 2005 murder of Leon Wilks and shooting of Nyesha Hammonds, defendant Dorrell Merrett was indicted on these charges: (1) first degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1); (2) first degree carjacking, N.J.S.A. 2C:15-2a; (3) first degree robbery, N.J.S.A. 2C:15-1a; (4) felony murder, N.J.S.A. 2C:11-3a(3); (5) second degree conspiracy to murder, N.J.S.A. 2C:5-2; (6) third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5a; (7) third degree possession of a loaded rifle, N.J.S.A. 2C:39-5c(2); (8) second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and (9) first degree attempted murder, N.J.S.A. 2C:5-1.
A jury acquitted defendant of counts two and nine (carjacking of Wilks and attempted murder of Hammonds); convicted him of unlawful taking of Wilks' motor vehicle as a lesser included offense of count two and aggravated assault on Hammonds as a lesser included offense of count nine; and convicted him on all of the remaining counts. After merger, he was sentenced for first degree murder to thirty years in prison without parole, to be followed by a five-year period of parole supervision, and concurrent sentences for the remaining unmerged offenses.
Defendant appeals from his conviction, raising the following issues:
POINT I: THE SUBSTITUTION OF A JUROR DURING DELIBERATIONS SHOULD NOT HAVE OCCURRED, OR, ALTERNATIVELY, WAS BADLY MISHANDLED (Not Raised Below).
POINT II: THE JUDGE IMPROPERLY DENIED THE REQUEST TO INSTRUCT THE JURY ON ATTEMPTED THEFT AND THEFT AS LESSER-INCLUDED OFFENSES OF ROBBERY.
POINT III: 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 AS PART OF THE ROBBERY INSTRUCTION, AND THEN, WHEN THE JURY ASKED A QUESTION ON THAT VERY TOPIC, GAVE AN INADEQUATE ANSWER TO THE QUESTION (Not Raised Below).
POINT IV: THE JURY INSTRUCTIONS, AND ANSWERS TO JURY QUESTIONS, ON THE SUBSTANTIVE CRIME OF CONSPIRACY TO MURDER AND ON VICARIOUS COCONSPIRATORIAL LIABILITY FOR OTHER OFFENSES WERE PATENTLY INCORRECT IN FAILING TO INSTRUCT THE JURY ON LESSER-INCLUDED OFFENSES OF CONSPIRACY TO COMMIT VARIOUS LEVELS OF ASSAULT AND THE EFFECT SUCH LESSER CONSPIRACIES MIGHT HAVE ON VICARIOUS LIABILITY FOR LESSER OFFENSES. (Partially Raised Below).
POINT V: THE JURY INSTRUCTION ON ACCOMPLICE LIABILITY ERRED SIGNIFICANTLY IN TWO RESPECTS: (1) DISTORTING THE MEANING OF "PURPOSELY" BY MEANS OF AN EXAMPLE THAT ACTUALLY REFERENCED A KNOWING STATE OF MIND, AND (2) FAILING TO EXPLAIN TO THE JURY HOW TO REACH A CONCLUSION THAT ONE IS GUILTY AS AN ACCOMPLICE, UNDER STATE V. BRIDGES AND STATE V. BIELKIEWICZ, OF AGGRAVATED OR RECKLESS MANSLAUGHTER RATHER THAN MURDER, INSTEAD TELLING THE JURY A LEGAL AND LOGICAL NON SEQUITUR--THAT ONE MUST ACT PURPOSELY TO PROMOTE THE COMMISSION OF A RECKLESS CRIME. (Not Raised Below).
A. The Judge's Erroneous Example Of Purposeful Intent.
B. The Instruction On Accomplice Liability For Aggravated And Reckless Manslaughter.
In a supplemental pro se brief, defendant raises this additional issue:
POINT I: TRIAL COURT VIOLATED DEFENDANT[']S SIXTH AND FOURTEENTH AMENDMENT RIGHTS BY SUBMITTING THE CHARGES OF MURDER N.J.S.A. 2C:11-3A (1), (3) AND ROBBERY N.J.S.A. 2C:15-1 UNDER MULTIPLE THEORIES AND ERRED BY FAILING TO ASK THE JURY TO RETURN SEPARATE VERDICTS WHERE THEORIES PRESENTED WEREN'T MUTUALLY EXCLUSIVE AND EVIDENCE WOULDN'T SUPPORT A GUILTY VERDICT (Not Raised Below).
Having reviewed the record, we reject all of these ...