May 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMIL MCKINNEY, A/K/A JAMEEL MCKINNEY, HAKIM MCKINNEY, MALIK HOWARD AND JAMIL WARDRICK, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-11-3773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012 -
Before Judges Payne, Reisner and Simonelli.
A grand jury indicted defendant Jamil McKinney for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); two counts of first-degree robbery, N.J.S.A. 2C:15-1b (counts two and six); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts four and nine); three counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts five, ten and thirteen); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3a (counts seven and eleven); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts eight and twelve); second-degree burglary, N.J.S.A. 2C:18-2b (count fourteen); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count sixteen). The charges stemmed from defendant's involvement in a home invasion, along with co-defendant Al-Tariq Wardrick and another person. During the invasion, one of the perpetrators struck Christopher Jones (Christopher) on the head with a gun, causing a sizeable gash; Christopher was robbed of his wallet, watch and car keys, and Shontae Lewis (Lewis) was robbed of her purse.
A jury found defendant guilty of second-degree conspiracy to commit robbery (count one), the first-degree robbery count relating to Christopher (count two), second-degree burglary (count fourteen), and fourth-degree resisting arrest (count sixteen). The jury found defendant not guilty of second-degree aggravated assault (count three), and could not reach a verdict on the remaining counts, including the first-degree robbery count relating to Lewis (count six).
At sentencing, the trial judge merged count one with count two and imposed an eighteen-year term of imprisonment on count two, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed a concurrent ten-year term of imprisonment on count fourteen, subject to NERA, and a concurrent eighteen-month sentence on count sixteen. The judge also imposed the appropriate fines and penalties.
On appeal, defendant raises the following contentions in his appellate brief:
THE JURY INSTRUCTIONS ON ARMED ROBBERY AND ARMED BURGLARY WERE CONFUSING AND INCORRECT, PARTICULARLY IN A CASE WHERE, AS HERE, THE JURY HAD DIFFICULTY DETERMINING THE DEFENDANT'S GUILT OF THE WEAPONS OFFENSES IN THE INDICTMENT. (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 AND ON AN ATTEMPT TO PREVENT AN ARREST AS A BASIS FOR RESISTING ARREST, BUT DID NOT EVER PROPERLY DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below).
Defendant raises the following contentions in his pro se supplemental brief:
THE TRIAL COURT ERRED BY FAILING TO ASK A SITTING JUROR ABOUT THAT JUROR'S FAMILIARITY WITH A STATE'S WITNESS (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY FAILING TO CONDUCT A CHARGE CONFERENCE ON THE RECORD, PRIOR TO CLOSING ARGUMENTS, AND IN [DEFENDANT'S] PRESENCE.
Because of an error in the jury instruction on first-degree robbery, we reverse the first-degree robbery conviction, and remand for a new trial on that charge. We affirm in all other respects.
We briefly summarize the facts pertinent to our review. At approximately 1:30 a.m. on April 9, 2007, Melvin Jones (Melvin) awoke to sounds coming from the second floor of his apartment building. When he went into the hallway to investigate, a male wearing a mask pointed a gun at him and ordered him back into his apartment. Melvin called 9-1-1, looked out the window, and saw three men, all wearing masks, leaving the building. A responding police officer saw two men, both armed and one wearing a mask, running from the scene. The officer gave chase and saw the men throw the mask and guns into a yard. Another police officer apprehended defendant and Wardrick. The police found the discarded mask that proved to have defendant's DNA on it, and a gun that proved to have Christopher's blood on it. Melvin identified defendant and Wardrick in a "show up" as they sat in the back of a police car. Defendant and Wardrick were tried together.
At trial, all counsel agreed that the jury would only consider the first-degree robbery and second-degree burglary charges and no lesser charges. Defendant contends for the first time on appeal in Point I of his appellate brief that the jury instructions on these charges were erroneous and led to an unjust result.*fn1 We agree as to the robbery instruction, but disagree as to the burglary instruction.
A person is guilty of first-degree robbery if, in the course of committing a theft, he "attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. A person is guilty of second-degree robbery "if, in the course of committing a theft, he: (1) [i]nflicts bodily injury or uses force upon another; or (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1a. The judge charged the jury on first-degree robbery under count two as follows:
In order for you to find [defendant] and . . . Wardrick guilty of robbery, the State is required to prove each of the following elements beyond a reasonable doubt: [t]hat [defendant] and . . . Wardrick were in the course of committing a theft; that while in the course of committing that theft, [defendant] and . . . Wardrick knowingly inflicted bodily injury or the use of force upon another; or B, threatened another with or purposely put him in fear of immediate bodily injury. [Emphasis added.]
The judge then instructed the jury as follows:
In this case, it is alleged that [defendant] and . . . Wardrick were armed with, used or threatened the immediate use of a deadly weapon while in the course of committing the robbery.
In this case the State alleges that [defendant] and . . . Wardrick were armed with a handgun. You must determine if this object qualifies as a deadly weapon, and if the State has proven, beyond a reasonable doubt, that defendant used it in the course of committing this robbery.
To summarize, if you find that the State has not proven beyond a reasonable doubt any one of the elements of the crime of robbery as I have defined that crime to you, then you must find [defendant] and . . Wardrick not guilty.
If you find that the State has proven beyond a reasonable doubt that [defendant] and . . . Wardrick committed the crime of robbery as I have defined the crime to you, but if you find that the State has not proven beyond a reasonable doubt that [defendant] and . . . Wardrick were armed with or used or purposely threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then you must find [defendant] and . . . Wardrick guilty of robbery of the second degree.
If you find that the State has proven beyond a reasonable doubt that the defendant committed the crime of robbery and was armed with a deadly weapon or used threats of the immediate use of the deadly weapon at the time of the commission of the robbery, then you must find [defendant] and . . . Wardrick guilty of robbery in the first degree. [Emphasis added.]
The instructions on second-degree robbery were erroneous; there was no second-degree, unarmed-robbery option in this case. The judge attempted to correct this error by instructing the jury as follows: "I think I indicated that -- a portion of the charge that referred to robbery of the second degree. There is no charge of robbery of the second degree. So that part is omitted." The judge gave no further explanation.
We conclude that there was reversible error in the first-degree robbery charge. See State v. Afanador, 151 N.J. 41, 54-56 (1997). The judge should have, but did not, instruct the jury that they should acquit defendant of armed robbery if they found the elements of unarmed robbery but had doubt about the armed element. The jury clearly did not agree on whether defendant was armed, as it reached no verdict on the weapons counts, but apparently believed that they should nonetheless convict him based on the unarmed elements of robbery. Accordingly, we reverse defendant's first-degree robbery conviction and remand for a new trial.
We reach a different conclusion as to the second-degree burglary instruction. A person is guilty of second-degree burglary "if in the course of committing the offense, the actor:
(1) [p]urposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone; or (2) [i]s armed with or displays what appear to be explosives or a deadly weapon." N.J.S.A. 2C:18-2b. A person is guilty of third-degree burglary "if, with purpose to commit an offense therein or thereon he: (1) [e]nters a . . . structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter . . . ." N.J.S.A. 2C:18-2a(1).
The judge read the elements of second- and third-degree burglary to the jury, and then instructed as follows: "In order for you to find defendant guilty of the crime of burglary, the State must prove beyond a reasonable doubt . . . the following elements: [o]ne, the defendant entered the structure without permission; two, that defendant did so with the purpose to commit an offense therein."
During deliberations, the jury sought clarification of the State's burden of proof on the second-degree burglary charge. The judge re-instructed the jury as follows:
A person is guilty of a crime of the third degree if, with the purpose to commit an offense therein, the person enters a structure or a separately secured or occupie[d] portion thereof, unless the structure was at the time open to the public or the person is licensed or privileged to enter, or that person is guilty of burglary in the second degree if, in the course of committing the offense I just described to you, that person purposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone or is armed with or displays what appears to be explosives or a deadly weapon.
We are satisfied that the re-instruction sufficiently cured any confusion that the first instruction may have caused, and properly instructed the jury on second-degree burglary. Accordingly, we affirm defendant's second-degree burglary conviction.
Defendant contends for the first time on appeal in Point II of his appellate brief that the judge erred in failing to define the elements of a criminal attempt under N.J.S.A. 2C:5-1a(3) in the robbery and resisting arrest instructions. We disagree.
There is no plain error because the judge defined "purpose" and defined "attempt," albeit elsewhere in the instructions. See State v. Smith, 322 N.J. Super. 385, 399-400 (App. Div., certif. denied, 162 N.J. 489 (1999) (holding that where a correct definition of attempt appears elsewhere in the charge, there is no plain error). Nonetheless, an attempt charge is not required where, such as here, there is evidence of a completed theft or robbery. See State v. Gonzalez, 318 N.J. Super. 527, 533-36 (App. Div.), certif. denied, 161 N.J. 148 (1999). The evidence established that defendant had completed the thefts of Christopher when he took Christopher's wallet, watch and car keys. The evidence also established that the perpetrators' sole purpose in invading the apartment was to take something valuable from the occupants.
In addition, the Model Jury Charge for resisting arrest under N.J.S.A. 2C:29-2a does not require the court to define criminal attempt. The Model Jury Charge only requires the jury to find beyond a reasonable doubt that a law enforcement officer was effecting an arrest, the defendant knew or had reason to know that the person was a law enforcement officer, and that the defendant purposely prevented or attempted to prevent the law enforcement officer from effecting the arrest. See Model Jury Charge (Criminal), "Resisting Arrest-Flight Alleged" (2007); see also State v. Simms, 369 N.J. Super. 466, 470 (App. Div. 2004). Accordingly, no error, let alone plain error, occurred from the lack of a definition of the elements of a criminal attempt.
Defendant contends for the first time on appeal in Point III of his pro se supplemental brief that he was prejudiced by the judge's failure to address possible juror taint. We reject this contention.
Lewis, who testified at trial, had advised the judge that she had a passing familiarity with a juror who was a customer at a pharmacy where Lewis worked. During a recess break in the trial, the juror asked Lewis if she was still working at the pharmacy. Lewis reported the conversation to the judge. Counsel did not ask the judge to question the juror, or object to the juror remaining on the jury.
Where it becomes apparent at trial that a juror may have been exposed to extraneous information or outside influences, the trial "court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." State v. R.D., 169 N.J. 551, 558 (2001). Although the judge erred by not questioning the juror, this was harmless error that did not deny defendant a fair trial because the jury did not render a verdict on any charges relating to Lewis.
Defendant contends for the first time on appeal in Point IV of his pro se supplemental brief that the judge erred by holding a charge conference in chambers, off the record, and outside his presence. This contention lacks merit.
Although Rule 1:8-7(b) requires that the court "shall hold a charge conference on the record in all criminal cases," the Rule only requires counsel's presence at the charge conference, not the defendant's presence. Counsel was present at the charge conference in this case. Defendant cites no authority requiring his presence, or evidence that his absence prejudiced his right to a fair trial.
Affirmed in part, reversed in part, and remanded for a new trial on the first-degree robbery charge.