July 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC L. WARREN, A/K/A ERWIN WARREN, ERIC BENNETT, DAVID BURKE, DAVID B. BURKE, TYREK WARREN, JERRELL WARREN, JERRELL L. WARREN, JORRLO L. WARREN, ERIC WILLIAMS, JEROME WILLIAMS, BILLY WILLIAMS, JEROME WILSON, JOE WILSON, JAMES WILSON, JOHN WILLIAMS, MICHAEL WILLIAMS, TIM WISE, TIM R. WISE, JAMOS BANKS, ANTHONY HALL, JAMES R. SMITH, MAURICE TATLOR, MAURICE TAYLOR, AND MAURICE TELLER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-04-632.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2012 -
Before Judges Waugh and St. John.
Defendant Eric L. Warren appeals from his conviction for second-degree robbery, contrary to N.J.S.A. 2C:15-1, as well as the resulting sentence of incarceration for fifteen years, with an eighty-five-percent period of parole ineligibility. We reverse and remand for a new trial.
We discern the following facts and procedural history from the record on appeal.
On January 12, 2010, Warren entered a drug store in Kearny. While in the store, he put containers of deodorant and shower gel into his pants. He was approached by Jose Alvarez, the store manager, who asked Warren to accompany him to the back of the store. According to Alvarez, Warren went with him with "no problem at all." When they arrived in the back room, Alvarez told Warren that he wanted the toiletries. After Warren denied having taken them, Alvarez shook him, causing the items to fall from the bottom of Warren's pants onto the floor.
When Alvarez went to the door to summon another employee, Warren tried to leave the back room through another door. Alvarez grabbed Warren and tried to make him sit on a chair. Warren shoved Alvarez back several times, and attempted to punch him, but was unable to do so. During the argument, a customer entered the room. The customer grabbed Warren, who resisted his efforts to detain him. Warren tried, but was not able to hit the customer. Warren eventually slipped away and went back into the store.
According to Alvarez, he followed Warren into the store, where he and another employee grabbed Warren. At that point, again according to Alvarez, Warren "gave up." According to Kearny Police Officer Christopher Lavchak, he arrived at the scene as Alvarez and the other employee were "grappling" with Warren. Lavchak testified that he grabbed Warren, who tried to pull away. Lavchak eventually subdued Warren and handcuffed him.
Warren was indicted in March 2010. In addition to robbery, he was charged with aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(7), and resisting arrest, contrary to N.J.S.A. 2C:29-2(a). Warren was tried before a jury over three days between November 30 and December 2, 2010. The State presented testimony from Alvarez and Lavchak. Warren chose to exercise his right to remain silent and did not testify.
After the State rested, defense counsel moved to dismiss count two, which alleged assault against the customer, who had not testified. The judge granted that motion. Defense counsel also moved to dismiss count one, the robbery, arguing that any theft was complete by the time Warren had voluntary accompanied Alvarez to the back room and the toiletries had been taken from him. The judge denied that motion, indicating that there was testimony from which the jury could determine that there had been force used in connection with the theft.
With respect to the issue of robbery, the judge first charged the jury on shoplifting, N.J.S.A. 2C:20-11, which he later characterized as the underlying theft charge. The judge then charged the jury on the elements of robbery and resisting arrest.
Less than an hour into deliberations, the jury sent a note requesting a definition of the word "force" as used in the jury charge. In response, after consulting counsel, the judge reread the definition in his original charge and then gave examples. The jury asked to hear the definition again, and also asked for additional examples. After the judge complied, he asked whether the jury understood. One juror responded:
You said in the course of the theft right when this is happening, and we're having --you just mentioned it again, the force is in the moment that I took the pocket book [ (one of the examples given by the judge)] or is -- I don't know.
The judge then re-read a portion of the charge as follows:
In the course of committing a theft, an act is considered to be in the course of committing a theft if it occurs in an attempt to commit the theft, during the commission of theft itself, or in the immediate flight after the attempt or commission of the theft.
Three separate times are considered in the course of the theft, either in the attempt to commit the theft, during the time the theft is actually occurring or, in the flight immediately after the theft.
When the judge again asked if the jury understood, a juror*fn1 said that he or she did not. The judge then added:
Flight immediately after, what that means exactly, it's a period of time or there is no definite period of time. There is nothing in the law that says 30 seconds after the theft, if it is more than 30 seconds it is not immediate.
At that point, defense counsel objected. At side bar, the judge cut defense counsel off as she was explaining her objection, stating that he had "a duty to instruct [the jury] and provide them with examples if they require them."
After the sidebar, the judge continued:
[T]here is no fixed time limit for what is considered immediate flight. The language, plain language, I trust you understand what that means, so there's no time limit for that, five seconds, 30 seconds, 20 minutes, flight subsequent to the offense that this section is designed to reach. It can't be so distant from the theft that it's not fair to include it.
Do you understand what I mean? Once you start flight, you can get in your car and start driving and be on your way to Dallas, you're still in flight from that robbery. It is not the immediate flight if it is two days later when they catch up to you. You're in flight, but not immediate flight. We're talking about immediate flight in the sense of the commission of the theft.
A juror then asked:
It is the force you're trying to use to strike, to steal, rob, whatever you're robbing, right? It is that force that you used to steal, rob whatever you're trying to steal?
Ignoring defense counsel's objection, the judge continued:
I am not sure I understand your question. You're mixing apples and oranges. The force used, I have defined for you. You understand that means, the force has to be directed against the victim, not just the property. Does that answer your question or no?
A juror responded: "all right." The jury continued to deliberate. The judge did not offer defense counsel an opportunity to put her objection on the record at that time.
After the jury adjourned for the day, defense counsel moved for a mistrial. She stated that, although the judge and counsel had discussed the first question from the jury, the judge had not stated that he would do anything other than re-read the charge. The judge did not discuss giving of examples or explain what the examples would be. She also noted that counsel were not given the opportunity to discuss the additional jury questions prior to the judge answering them. She further observed that the jury should have been instructed to submit written questions. Defense counsel explained her position that some of the judge's responses, especially with respect to timing, were "outside the law." The judge responded that he was giving "[j]ust [a] simple explanation of the law which is my obligation." He denied the motion for a mistrial.
The following morning, the jury made a written request to see a transcript of defense counsel's opening. The judge discussed the request with counsel, and decided that he would instruct the jury that the opening was not evidence, that they were obligated to decide the case based upon the evidence, and that it would be inappropriate for the opening to be re-read to them. Defense counsel objected, arguing that the opening was part of the record and might assist the jury in deciding the case.
After the judge gave his response to the request for the defense opening, a juror attempted to ask a question, but the judge directed that questions be in writing. Shortly thereafter, the judge received a written question asking for a definition of "circumstantial evidence." After discussing the request with counsel, the judge read the jury the definition of circumstantial evidence.
The jury reached a verdict shortly before 4 p.m. The jury found Warren guilty of shoplifting and robbery, and not guilty of resisting arrest.
On February 18, 2011, the judge sentenced Warren as a persistent offender pursuant to N.J.S.A. 2C:43-7. He imposed a sentence of incarceration for fifteen years, and imposed an eighty-five-percent period of parole ineligibility. This appeal followed.
Warren raises the following issues on appeal:
POINT I: ROBBERY -- SPECIFICALLY, THE USE OF FORCE IN "IMMEDIATE FLIGHT" -- WAS (A) INSUFFICIENTLY PROVEN AND (B) THE SUBJECT OF FAULTY JURY INSTRUCTIONS. U.S. CONST. AMENDS. XIV, VI; N.J. CONST. ART. I, PARAS. 1, 9, 10.
A. Force in "Immediate Flight" from a Theft Was Insufficiently Proven Because Warren Had Peacefully Abandoned the Stolen Toiletries to the Store Manager Before Any Shoving Occurred.
B. The Court Directed a Finding Against Warren by Instructing the Jurors, "Nothing . . . Says 30 Seconds After the Theft . . . [Force] is Not Immediate," While Omitting that Immediate Flight Requires a Continuous Transaction Without Intervening Events -- such as Warren's Abandonment of the Stolen Toiletries.
POINT II: WARREN WAS DEPRIVED OF DUE PROCESS AND THE CERTAINTY OF A UNANIMOUS ROBBERY VERDICT BECAUSE THE COURT FAILED TO INSTRUCT THE JURY TO FIND THAT WARREN USED FORCE AGAINST A SPECIFIC ONE OF THE THREE PEOPLE WHO SCUFFLED WITH HIM. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARAS. 1, 9, 10 (not raised below).
POINT III: WARREN SHOULD BE RESENTENCED BECAUSE THE COURT FAILED TO ACKNOWLEDGE MITIGATING FACTORS, WHICH LED TO THE IMPOSITION OF A SHOCKINGLY HIGH SENTENCE.
A. The Record Amply Supported Mitigating Factors One and Two Because Warren Never Contemplated Causing Or Threatening Serious Harm And Did Not Do So Where The Robbery Was an Aborted Shoplifting And Subsequent Shoving Match.
B. The Court's Sole and Improper Focus on the Offender (Aggravating Factors Three, Six, and Nine) and Refusal to Consider the Offense (Mitigating Factors One and Two) Caused the Imposition of a Shockingly Excessive Extended Term of Fifteen Years for a Glorified Shoplifting.
We first address the issue of whether there were sufficient facts in the record to support a conviction for robbery. The focus of that issue is whether, for the purposes of elevating his shoplifting offense to a robbery, the State adduced sufficient proof that Warren used "force" in "the course of committing a theft," which includes "immediate flight." N.J.S.A. 2C:15-1(a).
The only use of force alleged in this case occurred after Warren followed Alvarez to the back room of the drug store and the toiletries had been shaken out of his pants. Force was first used when Alvarez attempted to stop Warren from leaving the back room while he was calling another store employee. In addition to the several altercations with Alvarez, there was testimony that Warren used force against the customer who came to assist Alvarez, and against Levchak, the police officer who eventually arrested him. Warren argues that those events did not take place during "immediate flight" as a matter of law.
In State v. Mirault, 92 N.J. 492, 500 (1983), the Supreme Court analogized the "immediate flight" requirement in the robbery statute to the "ensues clause" in the pre-Criminal Code definition of felony murder, N.J.S.A. 2A:113-1. The Court concluded that "immediate flight" does not end until the defendant has "reached a point of at least temporary safety" or "become subject to complete custody." Id. at 500-01 (citations and internal quotation marks omitted). Like "the initial crime and the murder" in felony murder, the theft and use of force during immediate flight must be "closely connected in point of time, place, and causal connection and [be] integral parts of one continuous transaction." Id. at 500 (citations and internal quotation marks omitted).
Applying those principles, the Court rejected Mirault's argument that his "immediate flight" ended when a police officer told him to "freeze" and that the subsequent events were not part of "immediate flight." The Court held that the continuous and violent struggle took but a few minutes, never moved beyond the scene of the crime, and never found the defendant in complete custody until the backup police arrived. Under the circumstances the robbery and aggravated assault were clearly part of a continuous transaction; the assault thus took place "in the course of committing a theft." N.J.S.A. 2C:15-1. [Id. at 501.]
Warren argues that, once the toiletries were shaken out of his pants onto the floor, the continuity of the transaction had been broken and the subsequent use of force cannot be used to elevate the shoplifting to robbery. He relies on State v. Baker, 540 So. 2d 847, 848 (Fla. Dist. Ct. App. 1989), a brief opinion in which the court held that the controlling fact in the case at hand is that the defendant took the property without any use of force and abandoned the property before he used force to flee from the security guards. The defendant would have to have been in continuous possession of the property during the escape and the subsequent flight or resisting of arrest in order for the act to fall within the amended statute. Thus, the statutory requirement that the force used be part of "a continuous series of acts or events" involved with taking the property was not met.
Warren's reliance is misplaced because our statute specifically refers to the use of force "during immediate flight" after the theft or the attempt. Consequently, under New Jersey law, continuing possession of stolen property is simply not relevant to a determination of whether force was used during immediate flight.
In State v. Lopez, 187 N.J. 91, 98-99 (2006) (alteration in original) (emphasis omitted), the Supreme Court emphasized the breadth of the robbery statute's coverage by quoting from the Model Penal Code's commentary.
The commentary states that "the core of the robbery offense is the combination of theft and the fact or threat of immediate injury," and that robbery "is committed if the required special circumstances [the threat of or actual injury] exist at any point from the beginning of an attempt to commit a theft through the end of the flight following its attempt or commission." Model Penal Code & Commentaries, Part II § 222.1 at 98-99.
The Court added that our statute requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or be coterminous with the use of force. That is why a person who has stolen goods and thereafter uses violence in flight is guilty of robbery--the intention to commit the theft generated the violence. [Id. at 101.]
We are satisfied that a properly charged jury, viewing the State's evidence in its entirety and giving the State the benefit of all reasonable inferences from that evidence, could convict Warren of robbery. See State v. Reyes, 50 N.J. 454, 458-59 (1967). Consequently, we turn to the issue of whether, in fact, the jury in this case was properly charged.
Warren challenges two aspects of the charge. First, he argues that the judge did not properly charge the jury on the issue of "immediate flight," especially after its repeated questions on that issue. Second, he argues, for the first time on appeal, that the judge erred in failing to charge the jury that it must agree on the identity of the individual against whom the force was used.
Before addressing the substantive issues raised with respect to the charge, we comment briefly on the procedure used by the judge in responding to the jury's questions. Although the judge consulted with counsel prior to answering the jury's first question, he failed to do so for the subsequent questions on that trial day. Instead, he engaged in an ongoing dialogue with one or more jurors without taking the time to reflect on the questions and consult with the attorneys to give them an opportunity to suggest responses and, hopefully, to agree upon the responses.
A judge is required to consult with counsel in formulating answers to the jury questions following the charge. See State v. Whittaker, 326 N.J. Super. 252, 262 (App. Div. 1999) ("Certainly counsel must be consulted before the trial court responds to a question from the jury." (citing State v. Graham, 285 N.J. Super. 337 (App. Div. 1995))). It is improper for a judge to engage in a continuing dialogue with the jury without consulting with counsel. For that reason, the judge should have instructed the jury to submit the questions in writing, as he finally did the next day.
When a question is posed by the jury, the trial judge is required to answer the question "clearly and accurately and in a manner designed to clear its confusion, which ordinarily requires explanation beyond rereading the original charge." Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 1:8-7 (2012); Patton v. Amblo, 314 N.J. Super. 1, 9-10 (App. Div. 1998). However, minor inaccuracies in the judge's response will be disregarded unless they "have the capacity to mislead the jury" or are "clearly capable of leading the jury to an unjust result." Velazquez v. Jiminez, 336 N.J. Super. 10, 39-40 (App. Div. 2000) (citation and internal quotation marks omitted), aff'd, 172 N.J. 240 (2002).
We now turn to the issues raised with respect to the charge in this case.
It is undisputed that proper jury charges are "essential to a fair trial." State v. Bunch, 180 N.J. 534, 541-42 (2004); see also State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. See State v. Thompson, 59 N.J. 396, 411-12 (1971). Because of the importance of accurate jury instructions, "erroneous instructions on material issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359 (2002); see also State v. Vick, 117 N.J. 288, 289 (1989) ("[E]rroneous instructions are almost invariably regarded as prejudicial."); State v. Simon, 79 N.J. 191, 206 (1979) (Such errors "are poor candidates for rehabilitation under the harmless error philosophy."). Hence, "the rule of harmless error should be summoned only with great caution in dealing with the breach of fundamental procedural safeguards 'designed to assure a fair trial.'" Simon, supra, 79 N.J. at 206-07 (quoting Roger J. Traynor, The Riddle of Harmless Error 81 (1970)).
An improper instruction is harmless if it does "not demonstrably impair the ability of the jury to deliberate impartially upon its verdict" or if it "does not deflect the jury from a fair consideration of the competent evidence of record and from reaching a verdict of guilt which is supported overwhelmingly by properly admitted evidence." Id. at 207 (citations omitted). In those circumstances, "a conviction should not be reversed." See ibid. (citations omitted).
We start our discussion with the judge's failure to give a multiple-victim charge, which instructs the jury that it must reach unanimous agreement as to the identity of the victim or victims who were the object of the force used in connection with the robbery.*fn2 In State v. Gentry, 183 N.J. 30, 32-33 (2005), the Supreme Court adopted Judge Donald Coburn's dissenting opinion in the Appellate Division, 370 N.J. Super. 413, 425 (App. Div. 2004), and held that jurors must "agree unanimously on which acts [of force] were committed against which victim" in the context of a prosecution for robbery.
The principle of unanimity is "deeply ingrained in our jurisprudence" and mandates that "'jurors [must] be in substantial agreement as to just what a defendant did' before determining his or her 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)). While Article I, Paragraph 9 of the New Jersey Constitution and Rule 1:8-9 require a unanimous verdict in criminal cases, State v. Parker, 124 N.J. 628, 633 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992), "exactly how [the unanimity requirement] plays out in individual cases is more complicated," Frisby, supra, 174 N.J. at 596. In Gentry, supra, 183 N.J. at 31-33, the Supreme Court deemed a unanimity instruction necessary to counteract the confusion introduced where there was more than one victim to a robbery.
Under the circumstances of this case, the multi-victim charge should have been given because there was testimony that Warren had altercations with Alvarez, the customer, and Levchak. Consequently, there was potential for different jurors to reach different conclusions about the identity of person against whom Warren used force, thereby reaching a non-unanimous verdict. Consequently, failure to give the charge was error.
The State argues that any error was harmless. It points to the fact that the customer never testified and was hardly mentioned during the trial. While it is true that the customer did not testify, which resulted in dismissal of the aggravated assault charge, the State nevertheless presented testimony through Alvarez about Warren's altercation with the customer. In addition, the prosecutor's summation focused, in part, on the customer.
You heard testimony that the good Samaritan heard what was going on. This should tell you how loud this was. Use your common sense. He steps in and the Defendant continues to fight the two men, resisting, swinging at them.
You heard testimony that the good Samaritan cut his hand in the course of this.
Although the State's primary focus was undoubtedly on the altercations between Warren and Alvarez, it is clear that the State also relied on the altercation with the customer in its efforts to convict Warren of robbery.
The State also contends that, because the jury acquitted Warren of resisting arrest, the jury must have concluded that Warren did not use any force against Levchak. The use of physical force is an element of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a), but not disorderly-persons or fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(1), (2). The jury was instructed to consider whether Warren used force against Levchak only if it first found that he resisted arrest. Because the jury acquitted Warren of resisting arrest, it should never have reached the issue of use of force, although it did respond to that question in the negative.
In any event, because the State premised the element of use of force on conduct directed toward Alvarez and the customer, we cannot determine with certainty that all jurors reached the same conclusion with respect to the identity of the person against whom the force was used. As a result, we cannot conclude that the error was harmless, especially in light of the problem with the judge's charge on immediate flight, to which we now turn.
The charge given by the judge on robbery was essentially the model charge, which was appropriate for the purpose except that the judge omitted the multiple-victim portion. After hearing the charge, the jury had questions about the nature and timing of the use of force. The judge reiterated that the use of force "is considered to be 'in the course of committing a theft' if it occurs in an attempt to commit the theft, during the commission of the theft itself, or in immediate flight after the attempt or commission."
One or more jurors then started asking questions orally. The focus of those questions appears to have been the fact that the use of force was not directly related to the actual taking of the toiletries and the delay between the theft of the toiletries and the altercations that followed their disgorgement in the back room. As already noted, at this point the judge should have asked the jury to retire and submit questions in writing and then consulted with counsel before framing a response. Instead, he responded to the question solely in terms of various periods of time.
The model jury charge language about "immediate flight," Model Jury Charge (Criminal), "Robbery in the Second Degree" (2009), contains a footnote referring judges to Mirault. Reference to Mirault would have provided the trial judge with a much clearer response to the jurors' concerns about the timing of the use of force and the immediate flight. The judge could have supplemented his charge by instructing the jury that the theft and use of force during immediate flight must be "closely connected in point of time, place, and causal connection and [be] integral parts of one continuous transaction," Mirault, supra, 92 N.J. at 500 (citations and internal quotation marks omitted), and that immediate flight does not end until the defendant has "reached a point of at least temporary safety" or "become subject to complete custody," id. at 500-01 (citations and internal quotation marks omitted). It is not simply a matter of seconds or minutes. We conclude that the judge did not adequately respond to the jury questions. Although we are of the view that a properly charged jury could find Warren guilty of robbery, we are not convinced that a jury could not find that the taking of the toiletries and the altercations after they were shaken out of Warren's pants were not "integral parts of one continuous transaction." Consequently, the presumption of prejudice has not been overcome.
Because "erroneous instructions on material issues are presumed to be reversible error," Marshall, supra, 173 N.J. at 359, and are also "poor candidates for rehabilitation under the harmless error philosophy," Simon, supra, 79 N.J. at 206, the conviction for robbery must be reversed and the matter remanded for retrial.*fn3
Reversed and remanded.