May 7, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OMAR AUSTIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-10-4345.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011 -
Before Judges Messano, Yannotti and Kennedy.
An Essex County Grand Jury charged defendant Omar Austin with second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); four counts of first degree robbery while armed with a "handgun" of Juana Osuna, Christian Made, Sofia Rodriguez and Marisol Rosario, N.J.S.A. 2C:15-1 (counts two, three, four and five); first degree attempted murder of Sofia Rodriguez, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count six); aggravated assault upon Sofia Rodriguez, N.J.S.A. 2C:12-1(b)(1) (count seven); felony murder of Juana Osuna, N.J.S.A. 2C:11-3(a)(3)(count eight); murder of Juana Osuna, N.J.S.A. 2C:11-3(a)(1)(2)(count nine); felony murder of Christian Made, N.J.S.A. 2C:11-3(a)(3)(count eleven); murder of Christian Made, N.J.S.A. 2C:11-3(a)(1)(4)(2)(count twelve); unlawful possession of a firearm, a "handgun", N.J.S.A. 2C:39-5(b)(count fourteen); and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(count fifteen).*fn1
Following a jury trial, defendant was convicted on all counts of the indictment, with the exception of attempted murder of Sofia Rodriguez (count six) and aggravated assault upon Sofia Rodriguez (count seven). After appropriate mergers, defendant's aggregate sentence was two consecutive thirty-year terms of imprisonment, each with a thirty-year period of parole ineligibility. Defendant now appeals. After reviewing the record in light of the contentions advanced on appeal, we affirm.
We gather the following facts from the trial record. On the evening of May 18, 2001, Christian Made, Juana Osuna, Sofia Rodriguez, Roseanna Rodriguez and Marisol Rosario went to a club in Jersey City. They stayed until closing time during the early morning hours of May 19, 2001, and then entered a vehicle which Made drove, intending to go home. As they approached Newark from Route 280 westbound, Juana Osuna became ill and Made exited from the highway onto Spring Street in Newark, where he stopped, and everyone got out of the car.
Roseanna Rodriguez lived approximately two blocks away, and she decided to walk home. At this point, another car pulled up with three occupants. The driver and rear-seat passenger were male and the front-seat passenger was female. The driver, later identified as defendant, asked if everything was all right and the group said yes. Then, the rear-seat passenger, later identified as Green, leaned forward and whispered something to defendant. Marisol Rosario, witnessing this, immediately sensed trouble and told Sofia Rodriquez they should leave. As she said this, she saw the man sitting in the rear passenger seat get out of the car holding a small black gun. She then walked down the street and hid in a stairwell.
Kysheal Ivery, the female in the vehicle defendant was driving, testified that both Green and defendant got out of the car at this point. Green was holding a .380 caliber weapon and defendant was holding a nine millimeter handgun.
After Rosario walked from the scene, Sofia Rodriquez got into the driver's seat of the vehicle and called to Christian Made and Juana Osuna that they should leave. By this point, defendant and Green were near the rear of the car with Made and Osuna. Made shortly entered the front passenger seat and told Sofia Rodriguez that she should hand over her purse to the two individuals because they were "being robbed." Green then walked to the driver side of the vehicle, reached across Sofia Rodriquez, removed the ignition keys and shot her in the head. Ivery testified that she saw Green shoot Made and another female but she was uncertain who shot the female in the car. Green and defendant thereupon entered their own vehicle with two cell phones, thirty dollars, a gold chain and a pocketbook and drove off.
In the interim, Marisol Rosario, who was hiding by a stairwell, waited until the vehicle that defendant was driving pulled away and then she ran to her cousin's home.
Subsequently, Sofia regained consciousness and saw Made lying unresponsive to her right and Osuna lying behind the car in a pool of blood. She searched Made's pocket for his cell phone but it was not there. Her cell phone had been in the purse which was taken from her. She further testified that the perpetrator had taken ninety-five dollars from her as well as a gold chain and bracelets from her sister. Sofia managed to run to her home and then lost consciousness again.
Later that morning, police and emergency personnel responded to the scene. Four .380 caliber shell-casings and a projectile fragment were recovered from the scene. Later autopsies on Osuna and Made revealed that they died from gunshot wounds, and bullets were recovered from their bodies.
On May 26, 2001, defendant and Green were found in New York City in possession of handguns. Defendant had a nine millimeter semi-automatic handgun and Green was found in possession of a .380 caliber semi-automatic handgun. Ballistic tests linked the .380 caliber weapon to the shootings. The bullets retrieved from the bodies of Osuna and Made were determined to have been fired from that .380 caliber handgun, and the shell casings had markings showing that they too had been discharged from that weapon.
Defendant did not testify at trial and the only defense witness was Shanise Franks who testified that police questioned her regarding the events of May 19, 2001, and indicated that she fit the description of the girl who had been in the car with defendant and Green. She was never arrested.
On appeal defendant raises the following arguments:
THE JURY INSTRUCTIONS ON ACCOMPLICE LIABILITY INCORRECTLY TOLD JURORS THAT TO CONVICT DEFENDANT AS AN ACCOMPLICE TO AGGRAVATED MANSLAUGHTER, THEY WOULD HAVE TO FIND "THAT THE DEFENDANT'S PURPOSE WAS TO PROMOTE OR FACILITATE THE COMMISSION OF" THAT CRIME - A LEGAL IMPOSSIBILITY AND A DIRECT VIOLATION OF STATE V. BRIDGES AND STATE V. DARBY; MORE IMPORTANTLY, THE INSTRUCTION DID NOT PROVIDE THE PROPER MEANS (UNDER BRIDGES) TO RETURN A VERDICT FOR AGGRAVATED MANSLAUGHTER VIA AN ACCOMPLICE-LIABILITY THEORY, THEREBY EFFECTIVELY PRECLUDINIG A VERDICT FOR THAT LESSER OFFENSE. (Not Raised Below)
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 IT RELATED TO THAT OFFENSE; CONSEQUENTLY, THE DEFENDANT'S CONVICTIONS FOR FELONY MURDER AND ROBBERY SHOULD BE REVERSED. (Not Raised Below)
THE JUDGE VIOLATED THE DEFENDANT'S RIGHT TO A UNANIMOUS VERDICT WHEN SHE TOLD JURORS THAT EITHER THE GUN POSSESSED BY THE CO-DEFENDANT OR THE GUN ALLEGEDLY POSSESSED BY DEFENDANT WOULD SUFFICE FOR THE CHARGES OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE AND UNLAWFUL POSSESSION OF A WEAPON, THEREBY ALLOWING A VERDICT WHERE SOME JURORS BELIEVE DEFENDANT POSSESSED ONE WEAPON WHILE SOME BELIEVED HE POSSESSED THE OTHER. (Not Raised Below)
IF THE PENDING CASE OF STATE V. LARRY HENDERSON IN THE NEW JERSEY SUPREME COURT SUBSTANTIALLY CHANGES THE LAW REGARDING EYEWITNESS IDENTIFICATIONS, DEFENDANT'S CASE MAY WELL REQUIRE REVERSAL OR OTHER RELIEF BASED UPON THOSE CHANGES.
We address these issues in the order raised.
Because defendant did not object to the jury charges he now cites as error, our review is guided by the plain error standard, and we will not reverse unless the error is "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result is sufficient; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In the context of jury instructions, plain error is a "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).
"In reviewing instructions to the jury, the court must not isolate the language challenged but must examine the remark in the context of the entire charge." State v. DiFrisco, 137 N.J. 434, 491 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "A jury charge must adequately set forth the elements of an offense in a way that explains the law to the jury in an understandable manner." Ibid. "The test, therefore, is whether the charge in its entirety was ambiguous or misleading." State v. Hipplewith, 33 N.J. 300, 317 (1960).
The accomplice liability statute, N.J.S.A. 2C:2-6, provides in relevant part:
(a) A person is guilty of an offense if it is committed . . . by the conduct of another person for which he is legally accountable[.]
(b) A person is legally accountable for the conduct of another when:
(3) He is an accomplice of such other person in the commission of an offense;
(c) A person is an accomplice of another person in the commission of an offense if:
(1) With the purpose of promoting or facilitating the commission of the offense; he
(a) Solicits such other person to commit it;
(b) Aids or agrees or attempts to aid such other person in planning or committing it[.]
"Whether a defendant is a principal or an accomplice, the State must prove that he possessed the mental state necessary to commit the offense." State v. Whitaker, 200 N.J. 444, 458 (2009). "[T]he [New Jersey Criminal Code] requires an individualized assessment of each defendant's criminal responsibility." Ibid. (footnote omitted).
"[A]n accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." State v. Weeks, 107 N.J. 396, 401 (1987) (quotation and citation omitted). Thus, "[a]n accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal." Whitaker, supra, 200 N.J. at 458. Because "each participant in a crime is guilty only to the degree of his [or her] own intent," State v. Cook, 300 N.J. Super. 476, 486 (App. Div. 1996), it is possible for an accomplice to be guilty of a lesser crime than that of his or her principal. State v. White, 98 N.J. 122, 131 (1984).
In State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993), we held that a trial court is obligated "to provide the jury with accurate and understandable instructions regarding accomplice liability . . . even without a request by defense counsel." We noted that submission of lesser included offenses to the jury without accurate and complete instructions pertaining to accomplice liability for lesser offenses raises a "risk that the jury will compromise on a guilty verdict for the greater offense." Id. at 534. When a jury may find an accomplice guilty of a lesser included offense than that charged against the principal, the judge's instructions must "carefully [impart] to the jury the distinctions between the specific intent required for the grades of the offense." Id. at 528 (quoting Weeks, supra, 107 N.J. at 410).
If both parties enter into the commission of a crime with the same intent and purpose each is guilty to the same degree; but each may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind. [State v. Fair, 45 N.J. 77, 95 (1965).]
Defendant challenges the charge on accomplice liability in this case by asserting that it "generically tells the jury that one can find accomplice liability for a lesser offense only where it was the defendant's purpose to commit that lesser offense." Defendant claims that the charge "does not make any sense at all for a crime, like aggravated or reckless manslaughter, for which the mental state is recklessness."
It is true that one cannot have a purpose to commit aggravated manslaughter. State v. Bridges, 254 N.J. Super. 541, 566 (App. Div. 1992), aff'd in part, rev'd in part on other grounds, 133 N.J. 447 (1993), instructs that one nonetheless can be liable as an accomplice to a reckless crime if he purposely promotes or facilitates the principal's conduct in conscious disregard of the risk of the criminal result.
We disagree with defendant's claim that the instruction on accomplice liability in this case ran afoul of either Bridges or Bielkiewicz. Here, the trial judge gave appropriate instructions on the crimes of murder, aggravated manslaughter and reckless manslaughter. This is not disputed. Moreover, the judge's charge on accomplice liability mirrored the post-Bielkiewicz model jury charge*fn2 and explicitly instructed that participants in a criminal venture can have different degrees of culpability based upon their own individual state of mind. The trial judge charged, in pertinent part, as follows:
This defendant can be held to be an accomplice with equal responsibility only if you find as a fact that he possessed the criminal state of mind that is required to be proven against the person who actually committed the criminal acts.
In order to convict the defendant as an accomplice to the specific crime charged, you must find that the defendant had the purpose to participate in that particular crime. He must act with the purpose of promoting or facilitating the commission of a substantive crime with which he is charged, each one that you are considering, namely the robbery, attempted murder, aggravated manslaughter, aggravated assault, rather, and murder.
It is not sufficient to prove only that the defendant had knowledge that another person was going to commit the crimes charged. The State must prove that it was the defendant's conscious object that the specific conduct charged be committed.
You will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice with full and equal responsibility for the specific crime charged. If you find the defendant guilty of the specific charges then you need not consider any lesser charges.
If, however, you find the defendant not guilty of acting as an accomplice on a specific crime charged, then you may consider whether the defendant did act as an accomplice of the co-defendant Green, but with the purpose of promoting or facilitating the commission of some lesser offense than the actual crimes charged in the indictment.
Our law recognizes that two or more persons may participate in the commission of an offense, but each may participate therein with a different state of mind. The liability or responsibility for each participant for any ensuing offense is dependent on his own state of mind and not upon anyone else's.
Guided by these legal principles, and if you have found a defendant not guilty of the specific crimes charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charged [offenses].
Now, this applies, obviously, to the offense that you have been given lesser included offense principles on. The robbery you were given the lesser included offense of second degree robbery to consider. On the charges of murder you were given the lesser included offense of aggravated manslaughter and reckless manslaughter to consider. And I have already defined the elements of those offenses for you.
In considering whether the defendant is guilty or not guilty as an accomplice on lesser charges, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent upon his own state of mind and no one else's.
Therefore, in order to find the defendant guilty of any of the lesser included offenses that I have just enumerated for you, the state must prove beyond a reasonable doubt that the co-defendant committed the crimes as alleged in the indictment, or the lesser included offenses of those crimes;
That this defendant solicited him to commit those crimes and or did aid or agree or attempt to aid him in planning or committing the lesser offenses;
That this defendant's purpose was to promote or facilitate the commission of the lesser offense;
And that this defendant possessed the criminal state of mind that is required for the commission of the lesser offenses; Remember, you're considering the lesser offense of robbery in the first degree, namely robbery in the second degree, and the lesser offenses of aggravated manslaughter and reckless manslaughter, lesser offenses of murder.
If you find that the State has proven each one of these elements beyond a reasonable doubt then you must find the defendants guilty.
If, however, you find that the State has failed to prove any one of these elements beyond a reasonable doubt, then you must find the defendant not guilty.
This charge adequately explained the concept of accomplice liability.
This case differs from Bielkiewicz, supra, 267 N.J. Super. at 527, wherein we concluded that the judge's charge on accomplice liability for murder, which did not indicate in any manner that an accomplice may be convicted of a lesser offense, was clearly capable of producing an unjust result. So too, in Cook, supra, 300 N.J. Super. at 481, the jury instructions failed to properly inform the jury in unequivocal terms that it could decide the liability of defendant was different from that of the principal because each had a different state of mind. In State v. Savage, 172 N.J. 374, 394 (2002), the Court explained that, [B]ecause the trial court instructed the jury in accordance with relevant legal principles, under ordinary circumstances, we would presume that the jury understood and followed those instructions. See, e.g., State v. Burris, 145 N.J. 509 (1996)(citing State v. Manley, 54 N.J. 259, 270 (1969)(stating that, with regard to the proper use of evidence, "the court presumes that juries will understand and abide by the court's instruction")).
Here, the judge adequately instructed on all relevant principles of accomplice liability. While it would have been better for the trial judge to have included an instruction which tied the facts of the case into the accomplice liability instruction, we are satisfied that the trial court's charge on accomplice liability was nonetheless proper and, under the circumstances, did not constitute plain error.
Next, defendant argues that the court included attempted theft as a way to satisfy an element of the charge of robbery and did so without adequately explaining the concept of attempted theft. Here, the trial judge defined "in the course of committing a theft" as "an act . . . [that] occurs in an attempt to commit the theft, during the commission of the theft itself or an immediate flight after the attempt or commission."
After the initial charge was given to the jury, the jury sent a note to the trial judge seeking clarification: "Does the definition of robbery include the threat of theft without taking any possessions? For instance, someone holds the gun to my head but I have nothing to give him, is that still consider robbery against me?"
The prosecutor asked the judge to repeat the robbery charge and added, "for an abundance of caution, since attempted robbery is a robbery under New Jersey law, maybe give them the definition of attempt." Defense counsel rejected this suggestion, however, and stated, "I would have disagreed that the court should give an added definition of attempt" because "there is no factual scenario that arose during the course of this case that would speak to this particular question that they are asking when they gave the example." The judge agreed with defense counsel and subsequently recharged on robbery without specifically defining attempted theft.
We find that, on the facts of this case, the judge's decision not to charge on attempted theft or attempted robbery was appropriate. A jury charge need only "[set] forth the controlling legal principles relevant to the facts of the case."
State v. LaBrutto, 114 N.J. 187, 204 (1989). Here, Ivery testified that cell phones and cash had been taken from the victims. Sofia Rodriquez testified that she handed over her pocketbook to Green and that Made's cell phone was not on his person after she gained consciousness. Thus, there was no evidence whatsoever indicating that nothing was taken from the victims and thus it could not be said that the trial judge failed to set forth the "legal principles relevant to the facts of the case." LaBrutto, supra, 114 N.J. at 204. A jury could not have rationally concluded that there was "an abortive effort to perpetrate a theft" and thus no definition of attempted theft was required. State v. Farrad, 164 N.J. 247, 257 (2000) (quoting State v. Carlos, 187 N.J. Super. 406 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983)).
This case is distinguishable from State v. Gonzalez, 318 N.J. Super. 527 (App. Div.), certif. denied, 161 N.J. 148 (1999), where we reversed a felony murder conviction because the judge failed to charge the jury on attempt and there was no "evidence that the victim . . . was actually robbed." In the absence of an attempted robbery instruction, and without evidence that the victim was actually robbed, the court reasoned that there was no predicate offense supporting the guilty verdict on felony murder. Id. at 536. Clearly, the facts of this case are entirely different because there is ample evidence on the record from which the jury could have concluded that defendant and Green actually robbed the victims.
Next, defendant urges that the judge's instructions improperly invited the jury to convict defendant on weapon possession charges without unanimously determining which gun he possessed. "Generally stated, where there is an allegation on appeal that a specific unanimity charge should have been given, '[t]he core question is, in light of the allegations made and the statute charged, whether the instructions as a whole [posed] a genuine risk that the jury [would be] confused.'" State v. Gandhi, 201 N.J. 161, 193 (2010)(quoting State v. Parker, 124 N.J. 628, 638 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992)).
Here, the judge explicitly instructed the jury that there was testimony that two handguns were at the scene, a nine millimeter and a .380 caliber. However, there is no basis for concluding that the trial judge's instructions invited the jury to convict the defendant without being "in substantial agreement as to just what a defendant did before determining his . . . guilt or innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)).
The State advanced two legal theories regarding defendant's guilt in summation: constructive possession of a weapon and actual possession of a weapon. The trial court gave appropriate instructions on both actual and constructive possession as well as joint possession. Thus, the State's case did not advance two theories based upon different acts with entirely different evidence, as was the case in Frisby. Moreover, the record contains no indication of jury confusion regarding the need to convict defendant upon a unanimous verdict. The jury sought no clarification from the judge on this issue and the judge gave a clear instruction on jury unanimity. Under the circumstances, we find no plain error in the trial judge's charge.
Lastly, defendant suggests in his brief that if the then pending case of State v. Henderson changed New Jersey law with respect to eyewitness identification, reversal may be required based upon those changes. However, State v. Henderson, 208 N.J. 208, 302 (2011), explicitly instructed that its ruling applies prospectively only. Consequently, this allegation of error is without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2).