January 30, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES ALEXANDER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-11-03577.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011 Before Judges Fisher, Baxter and Nugent.
In appealing his conviction and the sentence imposed, defendant argues, among other things, that the trial judge erred in instructing the jury about accomplice liability, after deliberations had begun, in response to a question posed by the jury. After close examination of the issue, we conclude that the judge appropriately provided the additional instructions. We also reject defendant's other arguments and affirm.
Defendant and Anthony Warren were indicted and charged with one count of third-degree burglary, N.J.S.A. 2C:18-2a(1), and one count of third-degree theft, N.J.S.A. 2C:20-3. At the conclusion of a three-day trial, defendant was convicted of third-degree burglary and fourth-degree theft. The judge merged the convictions for sentencing purposes, granted the State's motion to impose an extended term, pursuant to N.J.S.A. 2C:44-3a, and sentenced defendant to a six-year prison term with a three-year period of parole ineligibility. At the same time, defendant entered a guilty plea to third-degree burglary on another indictment,*fn1 and the judge imposed a five-year prison term on that conviction to run concurrently with the other sentence.
Defendant appealed, presenting the following arguments for our consideration:
I. PROSECUTORIAL MISCONDUCT IN OPENING ARGUMENT DEPRIVED MR. ALEXANDER OF A FAIR TRIAL (NOT RAISED BELOW).
II. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF MR. ALEXANDER'S OTHER BAD ACTS.
III. PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED MR. ALEXANDER OF A FAIR TRIAL.
IV. THE TRIAL COURT ERRED IN PROVIDING A SUPPLEMENTAL INSTRUCTION TO THE JURY CONCERNING ACCOMPLICE LIABILITY.
V. THE GUILTY VERDICT ON THE CHARGE OF BURGLARY WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).
VI. CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
VII. MR. ALEXANDER'S SENTENCE ON [THE FIRST] INDICTMENT  MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Points II and IV. To put those two issues in context, we briefly outline the facts.
The State sought to prove at trial that, on August 29, 2008, defendant and Anthony Warren broke into the victim's home in Cherry Hill and removed a television. The State offered the testimony of a witness who was driving in the neighborhood when he saw two individuals carrying a television to a nearby car. This witness could not identify their faces, having only seen them for "[b]arely a few seconds" but thought something was not right, wrote down the license plate numbers of the car that the two individuals entered, and called 9-1-1. Police investigation at the victim's home suggested that entry was made into the home through a bathroom window, the screen of which had been sliced open with a sharp object.
Approximately seventy-five minutes after the burglary, a vehicle driven by defendant, with Warren as a passenger, was stopped by police in Collingswood. The vehicle's license plate numbers matched those provided by the 9-1-1 caller. Two televisions were found in the vehicle's back seat; Warren was in possession of a boxcutter. One of the televisions was later identified as the television stolen from the victim's home.
In Point II, defendant complains that a testifying police officer, in describing the evidence obtained, stated "[t]here were two flat screen televisions in the back seat" of the vehicle. It was readily apparent the State had no intention of eliciting testimony about a second television. In fact, when the officer made this comment about a second television, the assistant prosecutor immediately requested a sidebar and expressed a willingness to accede to whatever instructions defendant desired or the judge thought appropriate because the State was not contending the second television was stolen. To the contrary of what is now argued, defense counsel expressed no objection at that time; instead, upon arriving at sidebar, defense counsel said "I have no problem." The following discussion then occurred:
[ASSISTANT PROSECUTOR]: The witness mentioned two televisions, only one is missing from this case, and only one is at issue in this case. So, I don't know how you feel about the mention of two televisions being in there. [DEFENSE COUNSEL]: Well, there were two T.V.'s there, Judge. [ASSISTANT PROSECUTOR]: You're okay with that? [DEFENSE COUNSEL]: Yeah. [ASSISTANT PROSECUTOR]: I just wanted to make sure . . . you didn't have an objection to the second T.V. since only one was missing.
[DEFENSE COUNSEL]: No problem.
Defense counsel's only objection about the second television came later, when the assistant prosecutor sought admission of photographs that depicted both televisions. The assistant prosecutor agreed with defendant's argument that photographs that included images of the second television were not relevant*fn2
and agreed they were not evidential.
The second television was mentioned during the testimony of another police officer. The assistant prosecutor asked for a sidebar and again expressed a willingness to have the judge give appropriate instructions to the jury. Defense counsel again did not object; he recognized "there's no indication that the second larger T.V. was stolen . . . [s]o, I intend to elicit that response from the witness . . . [w]hich I think will neutralize some of the prejudice of this other T.V. being in the case."*fn3
Defense counsel's entire cross-examination of this witness consisted of the following:
Q. Detective, you made a determination that the smaller T.V. in the . . . vehicle had been removed from . . . the house that had been burglarized; is that correct?
A. Yes, sir.
Q. And did you attempt to find out whether the other larger T.V. had been stolen from anyone?
A. I did.
Q. And you . . . didn't find any reports that that had been stolen; is that correct?
A. Correct. We were never able to ascertain where the larger television came from.
Considering that defendant did not object, never requested that the jury be instructed about the second television's lack of relevance, and, in fact, deliberately explored the matter with one of the witnesses, demonstrates that defendant was not of the view at trial that the testimony was damaging. See State v. Loyal, 386 N.J. Super. 162, 173-75 (App. Div.), certif. denied, 188 N.J. 356 (2006). Moreover, the argument that defendant now makes is that the admission of evidence about the second television was prejudicial because it could have been viewed by the jury as evidence of a prior bad act, pursuant to N.J.R.E. 404(b). This contention is without merit. The State's witnesses acknowledged there was no evidence of wrongdoing with respect to defendant's possession of the second television, so there was no reason for the jury to suspect defendant had engaged in a prior bad act.
In Point IV, defendant argues that the trial judge erroneously instructed the jury on a theory of culpability that was neither contained within the indictment nor urged by the State.
To be sure, the indictment charged defendant with robbery and theft and did not expressly assert a theory of accomplice liability. And, the prosecutor never asserted accomplice liability but argued to the jury both in his opening and closing statements that defendant and Warren "entered through a side window by cutting that window opening . . . , entering the house, and stealing a flat screen television." In his charge, the judge properly instructed the jury regarding the elements of burglary and theft. After commencing deliberations, however, the jury asked that the judge "explain . . . burglary," and specifically asked: "if one goes into the structure, are both equally guilty, even if the other did not enter the structure?" The judge, over defendant's objection, instructed the jury on accomplice liability and also offered defense counsel the opportunity, which was declined, to sum up on that theory of culpability as well. The jury thereafter returned a guilty verdict on both burglary and theft.
Defendant argues in this appeal that he was prejudiced by this late injection into the case of an alternate theory. We disagree. The State may obtain convictions for offenses that are not expressly charged in the indictment but are otherwise encompassed by the conduct alleged, such as accomplice liability. See N.J.S.A. 2C:1-8d. As the Supreme Court has held, so long as there is a rational basis for a verdict convicting the defendant based on the conduct charged in the indictment, "the people of this State are entitled to have that charge rendered to the jury, and no one's strategy, or assumed (even real) advantage can take precedence over that public interest." State v. Powell, 84 N.J. 305, 319 (1980); see also State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); State v. O'Carroll, 385 N.J. Super. 211, 224-25 (App. Div.), certif. denied, 188 N.J. 489 (2006). Just as the trial court is obligated to provide the jury with instructions regarding the elements of the offenses charged, as well as any lesser-included offenses that could be found in light of the evidence, so too the trial court should instruct on an alternate theory based on the same evidence, State v. Powell, 84 N.J. 305, 319 (1980), particularly when a jury's question demonstrates the jury's need for instruction, State v. Conway, 193 N.J. Super. 133, 157 (App. Div), certif. denied, 97 N.J. 650 (1984). In other words, had the jury inquired of the availability of a lesser-included offense that had not been mentioned in the judge's initial charge but was supported by the evidence, even though not a focus of counsel's arguments, the judge would have been obligated to provide those instructions. See State v. Jenkins, 178 N.J. 347, 361 (2004). We see no cause to adopt a different approach simply because the jury posed a question that opened the door to an adjudication of guilt based on an alternate theory of culpability not relied upon by the State but encompassed by the indictment. See State v. Talley, 94 N.J. 385, 393-94 (1983). In addition, the judge provided defense counsel with the opportunity to give a closing statement on this alternate theory, thereby alleviating any prejudice caused by the late submission of that theory to the jury.
We are satisfied that in these circumstances defendant's right to a fair trial was not prejudiced in the manner urged in this appeal.