February 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DORRELL MERRETT, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 arguments and affirm.
As defendant's counsel indicated in his opening statement, the evidence in this case was not in substantial dispute. Rather, the primary issue was defendant's intent with respect to the events surrounding Wilks' murder. Not surprisingly, many of defendant's appellate issues relate to the jury charges concerning intent. With that in mind, we set forth the most pertinent trial evidence.
All witnesses who testified on the subject agreed that defendant had a good relationship with Wilks, whom he considered a father figure. In fact, Wilks let defendant sleep at his apartment in Elizabeth on many occasions. He also allowed defendant to store his bicycle in the basement of the apartment building. Defendant's girlfriend was the daughter of Wilks' long-time girlfriend, Jamillah Fullman, and Fullman regarded defendant as her son.
According to what Fullman told witnesses,*fn1 she had a fight with Wilks, he raped her and threw her out of his apartment, and he later threw all of her belongings into the parking lot of the nearby Flora Motel. According to defendant, the night before the murder, Fullman, who was staying at the motel, told defendant and a local gang leader named Lenwood Brown that she wanted them to severely beat Wilks in revenge for what he did to her. However, in his confession, defendant also told police that Fullman knew he and Brown owned firearms, because she gave them permission to hide the weapons under her mattress at the motel. Although defendant had only known Brown for a few months, he felt close to him "like a brother," and had convinced his family to let Brown stay at their home in Newark.
After meeting with Fullman, defendant, Brown, and Michael Willerson slept overnight at the motel. The next morning, the three men, all carrying firearms, walked over to Wilks' apartment. According to defendant's confession, despite Fullman's instructions to beat up Wilks, Brown told defendant that he intended to "scratch" (kill) Wilks. In his statement, defendant repeatedly admitted his advance knowledge that Wilks was going to be killed.
When the three men reached Wilks' home they found he had a guest, Nyesha Hammonds, a drug addict whom Wilks had allowed to stay overnight at his apartment while she got high.*fn2 The three men agreed that Hammonds would also need to be killed, because she had seen their faces. Because of his close relationship with Wilks, defendant did not want to personally participate in killing him, and Brown therefore told defendant that his contribution to the enterprise would be killing Hammonds. Knowing that Brown did not want to kill Wilks in the apartment, defendant asked Wilks to let Brown and Willerson into the basement to retrieve his bicycle. Defendant avoided accompanying them to the basement by claiming that his leg hurt. The basement was only accessible through a door located outside the building. Wilks took his keys and led the two men outside and into the basement, leaving defendant alone with Hammonds.
According to Hammonds, she was asleep in a chair in Wilks' bedroom when two men, one of whom she later identified at the trial as defendant, walked into the room. They used the bathroom attached to Wilks' bedroom. Defendant remained in the bathroom while the other man left with Wilks. After a few minutes, defendant emerged from the bathroom, and said "Oh, shit, did you hear . . . that gun shot?" He then began shooting Hammonds and, according to her testimony, "while he was shooting at me, before he stopped he said, 'If you say anything I'm going to f*****g kill you.'"
In his confession, defendant admitted staying in the bathroom, praying while he waited for Brown and Willerson to kill Wilks. After he heard shots and screams, he emerged, shot Hammonds and threatened to kill her if she told anyone what happened. According to defendant, Hammonds was not badly injured because he had rigged his gun with low-caliber, tape-wrapped bullets that were not lethal.
After shooting Hammonds, defendant left the apartment and met his cohorts leaving the basement. They had taken Wilks' keys, and the three men used the car key to steal Wilks'
Cadillac which was parked in front of the building. According to defendant's statement, Brown was "supposed to" rob Wilks but when defendant asked Brown if he got the money, Brown replied that Wilks' body was too bloody to search for money.*fn3 The three men sped from the scene in Wilks' car, which they later abandoned in Newark.
Meanwhile, Hammonds made a hysterical phone call to her mother, who called 9-1-1. Shortly after the police arrived, the landlord also arrived at the building and discovered Wilks' body in the basement. He had been shot in the head, hand and abdomen. In the bathroom of Wilks' apartment, the police found Brown's cell phone, which listed a number assigned to defendant's address as "home." On October 6, 2005, four days after the murder, defendant gave a lengthy and detailed videotaped confession, which was played for the jury at his trial. *fn4
Defendant's former girlfriend, Nikkita Davis, also testified that shortly after the killing, defendant told her about the events that occurred at Wilks' apartment. He told her that he asked Wilks to help Brown and Willerson retrieve his bike from the basement. He denied participating in killing Wilks in the basement. He told her that his role was to kill Hammonds, at Brown's direction, because Brown "said she had seen his face, and she had to die." According to Davis, Brown was a high-ranking member of the "[B]loods street gang." Both defendant and Willerson told her that they wanted to become members of the gang.
Brown's former girlfriend Markeyah Jennings, who was living with Brown at defendant's home, testified that the day before the murder, defendant, Brown and Willerson left defendant's home in Newark, intending to go to Elizabeth to avenge Fullman. At some point before they left, Brown had told her that Wilks was "going to get his ass whipped." When the three returned to defendant's home a day later, Willerson said that he had killed a man, and defendant said he had shot a woman. Jennings confirmed that Brown was a high-ranking member of the Bloods, who could sponsor new members, and that both defendant and Willerson had told her they wanted to become members.
In his closing argument, defense counsel argued that defendant did not share his companions' intent to kill Wilks but instead went to Wilks' house on the understanding that the three men intended to beat him up. He also argued that defendant did not intend to kill Hammonds but rather only intended to make it sound as though he was shooting her in order to satisfy Brown.
The prosecutor argued that defendant knew in advance that Brown planned to kill Wilks. He argued that defendant conspired with Brown and Willerson to rob Wilks, murder him, and steal his car; that defendant also acted as an accomplice to those crimes; and that defendant was motivated by his desire to avenge Fullman and to be accepted into the Bloods street gang.
In his Point I, defendant argues that the trial court erred in allowing the substitution of a juror after the jury had allegedly "begun to make fact findings." He also contends that the judge erred in mentioning to the newly-constituted jury that the prior-constituted jury had a question that could be re-submitted if the newly-constituted jury had the same question. Neither argument was presented to the trial court and therefore we consider them under the plain error rule. See R. 2:10-2. We find no error, plain or otherwise.
On the first day of deliberations, the jury sent out this question: "We need clarification on the law, specifically if we determine that Willerson is guilty of murder and not a lesser charge and if we determine the defendant is a coconspirator/accomplice, must we then find the defendant guilty of murder and not a . . . lesser charge?" After the judge addressed the question, the jury sent out several additional questions.
At the end of the next day, February 27, one question remained unanswered. Before answering the question, the judge excused a juror due to illness and, without objection from defense counsel, a substitute juror was chosen. Before appointing the substitute juror, the judge obtained agreement from both counsel that it made no sense to answer the jury's last question, when he was going to have to immediately appoint a replacement juror and tell the jury to begin their deliberations from scratch.
After thoroughly instructing the newly-constituted jury on its obligation to begin deliberating anew, the judge noted that the original jury had sent out a question and if, after the newly-constituted jury reached "the appropriate point in your new deliberations," it still had a question on the issue, the jury could re-submit the question to the court. However, the newly-constituted jury did not re-submit the question.
Under Rule 1:8-2(d), the court may release an ailing juror and substitute an alternate juror, provided the judge instructs the newly-constituted jury to disregard all prior deliberations and start deliberations from scratch with the new juror. Statev. Trent, 79 N.J. 251, 257 (1979); State v Miller, 76 N.J. 392, 407 (1978). However, if the original jury has already engaged in lengthy deliberations, or has already made findings as to defendant's guilt or innocence on some of the charges, it may not be realistic to expect the jury to start its deliberations over from the beginning. See State v. Corsaro, 107 N.J. 339, 352 (1987).
"[W]here the deliberative process has progressed for such a length of time or to such a degree that it is strongly inferable that the jury has made actual fact-findings or reached determinations of guilt or innocence," there is a concern that the new juror will not play a meaningful role in deliberations. In such cases, the replacement juror is likely to be confronted with "closed orclosing minds." [State v. Jenkins, 182 N.J. 112, 132 (2004)(quoting State v. Corsaro, 107 N.J. 339, 352 (1987).]
Relying on Jenkins and Corsaro, defendant argues that the original jury's first question indicated that it had already decided that Willerson was guilty of murder, and therefore it was improper to substitute a juror later on in the deliberative process. We disagree. The question on which defendant relies was asked shortly after deliberations began, and it was phrased as a hypothetical ("if we determine that Willerson is guilty of murder"). It is sheer speculation to assume this meant the jury had made up its mind.
The jury instructions in this case were lengthy and complex. Over the course of its deliberations, the jury sent out numerous questions, largely phrased as hypotheticals asking the judge to clarify the myriad alternatives set forth in the charge. The newly-constituted jury sent out as many questions as the original jury. Moreover, unlike Jenkins, supra, where the jury returned a verdict twenty-three minutes after the alternate juror was added, this jury continued to deliberate for two more days after the new juror was chosen. We cannot conclude on this record that it was too late in the process to substitute a juror or that the jury did not in fact follow the judge's instructions to begin its deliberations from scratch with the new juror.
Further, we find no merit in the argument that, by acknowledging that the jury had a pending question when the substitution was made, the judge tainted the jury's subsequent deliberations with the new juror. The judge properly instructed the jury to start its deliberations from the beginning and not even to consider the question unless it arose at the "appropriate point" in their new deliberations. He clearly was not requiring the jury to re-submit the question or to follow its previous line of reasoning. And, in fact, the jury did not re-submit the question.
Turning to Point II, in challenging his convictions for robbery and felony murder, defendant contends that the trial judge should have given the jury the option of convicting him of theft instead of robbery. In support of that argument, he reasons that if he formed the intent to take Wilks' money after Wilks was killed, he would only be guilty of theft and not robbery. In turn, a theft conviction would not support a conviction for felony murder. See State v. Whitaker, 200 N.J. 444 (2009). Similarly, if his co-defendants for whose actions he was vicariously liable, only formed the intent to take Wilks' money after they killed him, they would be guilty of theft and not robbery. There are several flaws in defendant's argument.
First, at the time Wilks was killed in the basement, defendant was upstairs with Hammonds, and he did not rejoin his companions until after they left the basement. Defendant therefore could not have formed and acted upon a mere post-shooting intent to steal from Wilks. Second, there is no evidence whatsoever that after Willerson killed Wilks, Brown and Willerson then spontaneously decided to take Wilks' money. In his confession, defendant admitted knowing that Brown intended to steal from Wilks. He admitted seeing Brown looking around for Wilks' wallet before Brown and Willerson took Wilks down to the basement. Finally, defendant stated that after they left the house, he asked Brown if he got Wilks' money, because Brown "was supposed to" rob Wilks.
We agree with the trial judge that there was no "rational basis" for the jury to find that the intent to steal from Wilks arose after the murder. See State v. Savage, 172 N.J. 374, 397 (2002). Moreover, as the judge observed, since no money was actually stolen, such a late-formed intent without an actual theft would not support a conviction of any crime. Because there was no evidence in support of a charge of theft, as opposed to robbery, the court correctly charged the jury only on robbery and not theft as a lesser included offense. Id. at 396-97. He also correctly charged the jury that if "defendant formed the intent to commit a theft after" the murder, he could not be convicted of robbery.
Looking at this and defendant's other charging arguments more
globally, it is important to consider the charge as a whole, and the
totality of the trial evidence. See State v. Smith, 322 N.J. Super.
385, 400 (App. Div.), certif. denied, 162 N.J. 489 (1999). While the
State argued that defendant participated in a plan to rob Wilks, kill
him, and steal his car, the linchpin of the State's case was not
evidence of a planned robbery but evidence that defendant knew in
advance that Brown planned to kill Wilks and agreed to participate in
that plan. Defendant's videotaped confession was powerful evidence in
support of the State's theory. In his long and detailed statement on
that videotape, he admitted multiple times that he knew the primary
purpose of the visit to Wilks' house was to kill Wilks.*fn5
He explained that on the way over to Wilks' house, he bought
a soda so that he could use the empty plastic bottle as a makeshift
silencer for his gun.
While defendant told the police that he did not want to personally carry out the murder because of his relationship with Wilks, he admitted that once the three men arrived at Wilks' house, he agreed to kill Hammonds because she was a potential witness. He also admitted helping his cohorts convince Wilks to go to the basement with them, on the pretext of retrieving defendant's bicycle. He described retreating into the bathroom and praying while he waited for his companions to carry out the murder. Once defendant heard gunshots and screams and realized that his companions had killed Wilks, he knew he was expected to kill Hammonds. Rather than kill her, however, he shot her with non-lethal bullets and threatened to kill her if she called the police. The jurors evidently credited defendant's confession, because they convicted him of murder and conspiracy to murder Wilks, but acquitted him of the attempted murder of Hammonds. They also acquitted him of felony murder based on carjacking, consistent with his statement that the theft of the car was a spontaneous act committed after the killing.
Addressing Point III, we also find no merit in defendant's argument that the robbery conviction must be reversed because the judge failed to define the elements of criminal attempt as it related to the robbery charge. See State v. Gonzalez, 318 N.J. Super. 527, 535-36 (App. Div.), certif. denied, 161 N.J. 148 (1999)(reversing felony murder conviction based on attempted robbery, where judge failed to define "attempt" anywhere in the jury charge). Defendant acknowledges that the judge charged the jury on criminal attempt in the section of the charge dealing with attempted murder and assault. He also recognizes that in State v. Smith, supra, 322 N.J. Super. at 399-400, we held that was sufficient to satisfy Gonzalez.
However, defendant hinges his argument on the following question posed by the jury: "On the charge of robbery does something need to be taken or simply the intent to take something?" He asks us to speculate that this question meant the jury did not understand the meaning of "intent" or "attempt." We decline the invitation. Instead, we find that the judge's response to the question, explaining that the theft need not be completed but only attempted, but also explaining that intent alone without an attempt was insufficient, was on point and sufficient.
In defendant's Point IV, he argues that the judge erred in instructing the jury concerning co-conspirator liability, and on the substantive offense of conspiracy to commit murder. Defendant contends that the judge erred in telling the jury, in answer to a question, that in considering defendant's vicarious guilt as a co-conspirator, they must first consider what crime Willerson committed. He instructed them that if Willerson was guilty of murder, then they must consider whether defendant was guilty of murder as a co-conspirator, but they should not consider defendant's guilt of lesser included offenses to murder as a co-conspirator unless they found that Willerson was only guilty of a lesser included offense.
As the Court held in State v. Bridges, 133 N.J. 447 (1993), "a co-conspirator may be liable for the commission of substantive criminal acts that are not within the scope of the conspiracy if they are reasonably foreseeable as the necessary or natural consequences of the conspiracy." Id. at 466-67.
Consequently, trial courts must endeavor to explain to juries, as part of their instructions, that when determining criminal liability under that standard, they should consider whether the commission of the substantive crime is actually beyond the scope of the original conspiracy, and if so, whether it is objectively foreseeable or reasonably to be anticipated that the substantive crime would be committed in view of the obvious risks surrounding the attempts to execute the conspiracy, and whether the substantive crime occurred or was committed in a manner that was too farremoved or too remote from the objectives of the original conspiracy. [Id. at 467.]
The State charged defendant with murder and the lesser included offenses listed on the verdict sheet. The State's theory was that Willerson murdered Wilks, and that defendant was vicariously responsible for that murder because he had conspired with Brown and Willerson. The State's theory as to the lesser-included offenses was the same. The trial judge correctly instructed the jury on the elements of vicarious liability as a co-conspirator, consistent with Bridges. And he correctly answered the jury's question with respect to co-conspirator liability. Even if defendant conspired to commit something less serious than murder, if the murder of Wilks was a foreseeable result of that conspiracy, he was still guilty of murder.
In this case, the record overwhelmingly supports a finding of co-conspirator liability for murder. Defendant admitted to the police multiple times that he knew in advance that Brown and Willerson intended to kill Wilks. He knew they were armed with guns. He knew Brown was a gang leader who did not change course once he had decided on a plan of action and who expected his associates to follow through on his plans. And he admitted playing his part in the murder, including luring Wilks to the basement and agreeing to kill the witness, Hammonds. As in Bridges, the killing of Wilks was "a reasonably foreseeable risk arising out of the criminal conduct undertaken to effectuate the conspiracy, and occurring as the necessary or natural consequences of the conspiracy." Bridges, supra, 133 N.J. 468.
Defendant further argues that, with respect to the substantive charge of conspiracy to commit murder, the instructions and the verdict sheet should have allowed the jury to find him guilty of conspiracy to commit a lesser included offense. Relying on State v. Bielkiewicz, 267 N.J. Super. 520, 533 (App. Div. 1993), he further contends that if the jury had been able to convict him of a lesser substantive conspiracy offense, it might also have convicted him of something less than murder. Given the overwhelming evidence against defendant, the latter is a fanciful contention. Moreover, as previously noted, in the course of instructing the jury as to the substantive lesser included offenses under the murder charge, the judge instructed them that they could find him guilty of those lesser included offenses under a theory of conspiracy or accomplice liability. Therefore, the jury knew that they could convict defendant of the lesser included offenses to murder if they found he conspired to commit those lesser included offenses. See State v. Ingram, 196 N.J. 23, 39-41 (2008).
With respect to the substantive conspiracy charge, the State correctly points out that conspiracy is in itself a lesser included offense to murder. State v. Soltys, 270 N.J. Super. 182, 189 (App. Div. 1994). "[T]he agreement to commit a specific crime is at the heart of a conspiracy charge." State v. Samuels, 189 N.J. 236, 245 (2007). There are no lesser included offenses to conspiracy, and the judge was not required to sua sponte include instructions on lesser included offenses when instructing the jury on the substantive crime of conspiracy. See Ingram, supra, 196 N.J. at 39.
Next we address defendant's point V, concerning accomplice liability. Defendant argues that the judge mistakenly instructed the jury that to be an accomplice to aggravated or reckless manslaughter, the jury would need to find that he acted with a purpose to cause one of those offenses, as opposed to with the purpose to further the conduct of Brown and Willerson. See State v. Bridges, supra. The short answer is that even if there were such a mistake in the charge, it could not have been plain error. See R. 2:10-2. There is no evidence whatsoever that Willerson or Brown committed aggravated or reckless manslaughter Unlike, Bridges, for example, where defendant brought some armed companions to a party, intending a confrontation but not a killing, here there is no evidence that defendant was merely an accomplice to conduct that would have resulted in aggravated or reckless manslaughter. Overwhelming evidence pointed to a planned, intentional killing.
Defendant's further objections to the accomplice instructions require little discussion. R. 2:11-3(e)(2). The judge thoroughly and correctly instructed the jury on the elements of accomplice liability. While we agree that he gave one illustrative example that might have been better phrased, defense counsel did not object to the example, and in the context of the entire charge, any error was harmless. See State v. Savage, supra, 172 N.J. at 387-88; R. 2:10-2.
Finally, we have considered defendant's pro se appellate
contentions, and we find they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).