September 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
AYANNA DUNIA, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-09-2058.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Lauren S. Kirk, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Harris and Guadagno.
After a jury trial, defendant Ayanna Dunia was convicted of (1) second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, and (2) second-degree robbery, N.J.S.A. 2C:15-1 (as a lesser-included offense of first-degree robbery). She appeals from the February 28, 2012 judgment of conviction, and urges that her five-year prison sentence, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was manifestly excessive. We affirm.
On July 30, 2010, Dunia, along with co-defendant Micha K. Cadogen, Ashley Weston, and Janayah Harper, traveled to Atlantic City from Philadelphia. Around 1:00 a.m., the group began to frequent several of the city's clubs and casinos.
At approximately 3:30 a.m., the foursome decided to hail a cab driven by Loi Tang. Tang testified that four people flagged him down at the intersection of Pacific and South Carolina Avenues in front of the Courtyard Marriott, and asked him to drive them to the Borgata casino. Dunia testified that the group initially wanted to go to the Borgata "as a spur of the moment thing" but before going there they planned to pick up Harper's friend, who was going to "pay for our cab ride" and take them "drinking and stuff." According to Dunia, the group decided to take a cab because everyone was intoxicated, and "we didn't know where we were."
Cadogen testified that Dunia was in the front passenger seat. Cadogen, with Weston and Harper to his left, was positioned immediately behind Dunia in the back seat of the cab. Tang testified that before reaching the Borgata, the passengers asked to be dropped off in a parking lot along Maryland Avenue. At that time, Dunia asked for change from a one-hundred dollar bill she was holding. Tang refused to give her change until he had a chance to closely examine the currency. The transaction never occurred because the group got back into the cab and asked Tang to take them to the Showboat casino.
Upon arriving at the Showboat, Dunia directed Tang to return the group back to where he initially picked them up. While stopped at a red light along the route, Dunia demanded Tang's money. According to Tang,
the female, the one that sit in front, demand the money, she tell give me the money and she pull —— I don't know what, I only know that she demand the money and pull something you know like give me the money . . . she pulled something out, I couldn't see what, but you know it hard, I don't know.
While this was happening, the others exited the cab.
Cadogen testified that he observed Dunia through the front passenger window of the cab holding a pocketknife in her hand pointed in Tang's direction. Furthermore, Cadogen stated that Dunia attempted to pay the fare with "fake money, " but was unable to fully distinguish what Dunia was attempting to tender as payment.
Dunia then told Cadogen to "get [Tang's] money." According to Tang, Cadogen stated, "you better give her the money now." Cadogen testified that, after racing around the cab, he reached into Tang's pocket through the open driver's window and took Tang's money. Tang testified that he felt a "hard object" against his jacket but because he was "so scared at that time, " he did not know what touched him nor did he see the object that Dunia was holding. After Cadogen took the money, Dunia exited the cab and all four passengers fled from the scene on Virginia Avenue running towards Atlantic Avenue. Tang immediately called 9-1-1.
On cross-examination, Cadogen admitted that, in his plea allocution, he "demanded the money" from Tang. Moreover, Cadogen stated that his demand for Tang's money was done after Dunia told him to take Tang's money. Cadogen testified that he took less than twenty-five dollars from Tang.
After all four passengers fled, Tang traversed the area in his cab looking for the group. According to Cadogen, when Tang was out of sight, the group split up —— Cadogen and Dunia went one way, and the two other passengers went in a different direction. Tang testified that he
saw the people who robbed me, the male, female, they both run in front of the bar, they inside the bar, I saw them go inside the bar, and then I know that I go to follow them out when I saw the police.
. . . .
And I flagged the police down, I say help me, I've been robbed, I call 9-1-1. They say where they at. I said back at the bar, that's where you turn and I follow with the police, I with the police.
Atlantic City Police Officers Eugene A. Laielli and Michael Losasso responded to the area of Virginia and Pacific Avenues. After speaking with Tang, the officers spotted the suspects and upon driving their marked patrol car into a bank parking lot, Officer Laielli exited the patrol car and apprehended Cadogen. Dunia fled on foot, but Officer Losasso pursued and caught up with her in short order. Tang followed behind the patrol car and was able to identify both Cadogen and Dunia subsequent to their captures.
As Officer Losasso was handcuffing Dunia, he noticed that she held a one-hundred dollar bill issued by the Bank of Jamaica clenched in her fist. No other money was found on Dunia. Upon arrest, Cadogen still had Tang's money in his possession. The officers searched the immediate area to locate a knife that Tang described, but none was discovered.
Dunia's version of events was very different. She denied being the front seat passenger in the cab. Also, believing that the cab fare had not been properly paid, she said that she only ran away from the scene because the others did so. She testified that she had no idea that Cadogen demanded money from Tang nor did she see anyone with a knife. Dunia denied that she robbed Tang.
Dunia was tried alone, because Cadogen pled guilty to second-degree robbery, N.J.S.A. 2C:15-1. The jury acquitted Dunia of all charges except for second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, and (2) second-degree robbery, N.J.S.A. 2C:15-1 (as a lesser-included offense of first-degree robbery). After merger, a five-year NERA sentence was imposed. This appeal followed.
On appeal, Dunia presents the following arguments for our consideration:
POINT I: THE TRIAL COURT'S JURY INSTRUCTIONS WERE FLAWED BECAUSE THE COURT: A) PROVIDED THE JURORS WITH A CONSPIRACY CHARGE THAT DID NOT INCLUDE AN ESSENTIAL ELEMENT OF SECOND-DEGREE ROBBERY, DID NOT CLEARLY INDICATE THE DEGREE OF THE UNDERLYING ROBBERY OFFENSE AND, INCLUDED AN UNNECESSARY ELEMENT FOR THE JURORS TO CONSIDER; B) ERRONEOUSLY INSTRUCTED THE JURORS ON "USE OF FORCE" AS AN ELEMENT TO SECOND-DEGREE ROBBERY DESPITE THE PARTIES' AND THE COURT'S AGREEMENT THAT THE ELEMENT DID NOT APPLY; AND C) FAILED TO PROPERLY TAILOR THE ACCOMPLICE-LIABILITY CHARGE TO THE FACTS OF THE CASE AND THE LESSER-INCLUDED OFFENSES. (Partially Raised Below).
A. THE CONSPIRACY INSTRUCTIONS WERE INCOMPLETE AND UNCLEAR AS THE TRIAL COURT FAILED TO CHARGE ON AN ESSENTIAL ELEMENT OF SECOND-DEGREE ROBBERY, FAILED TO CLARIFY THE DEGREE OF ROBBERY THAT CONSTITUTED THE UNDERLYING OFFENSE, AND ERRONEOUSLY REQUIRED THE JURY TO FIND THAT AN OVERT ACT WAS COMMITTED IN FURTHERANCE OF THE CONSPIRACY.
B. THE COURT IMPROPERLY INSTRUCTED THE JURY ON "USE OF FORCE" AS AN ELEMENT OF SECOND-DEGREE ROBBERY, DESPITE AGREEMENT AMONG THE PARTIES AND THE COURT THAT THE ELEMENT DID NOT APPLY, THEREBY CREATING A CONFUSING AND ERRONEOUS CHARGE WHICH WAS ULTIMATELY USED BY THE JURY TO FIND THE DEFENDANT GUILTY OF THE OFFENSE.
C. THE ACCOMPLICE-LIABILITY CHARGE WAS NOT TAILORED TO THE FACTS OF THE CASE AND FAILED TO EXPLAIN HOW THE THEORY APPLIED TO THE LESSER-INCLUDED OFFENSES.
D. THE AFOREMENTIONED ERRORS REQUIRE A REVERSAL OF THE CONSPIRACY TO COMMIT FIRST-DEGREE ROBBERY AND SECOND-DEGREE ROBBERY CONVICTIONS.
POINT II: THE SENTENCE IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
After reviewing these contentions under the lens of the trial record, we do not find any of them persuasive. Accordingly, we affirm the conviction and sentence.
Dunia contends that the trial court committed plain error by instructing the jury incorrectly on the law of conspiracy and second-degree robbery, and failed to properly tailor the facts of the case to the accomplice liability charge. While Dunia indicates her claims were partially raised in the Law Division, under Rule 1:7-2 Dunia's failure to properly object to the judge's jury charge constitutes a waiver of her right to challenge that instruction on appeal. State v. Docaj, 407 N.J.Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009). However, mindful of the principle that "appropriate and proper jury charges are essential to a fair trial, " State v. Savage, 172 N.J. 374, 387 (2002), an appellate court will review the charge to determine whether there was plain error clearly capable of producing an unjust result. R. 2:10-2.
New Jersey courts have repeatedly recognized the critical importance of "'[a]ccurate and understandable jury instructions in criminal cases'" to a defendant's right to a fair trial. State v. Galicia, 210 N.J. 364, 386 (2012) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988). Moreover, the jury charge must provide a "'comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.'" Ibid. (citing Concepcion, supra, 111 N.J. at 379 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).
The standard for assessing the soundness of a jury instruction is "'how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole.'" Crego v. Carp, 295 N.J.Super. 565, 573 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997) (quoting Davidson v. Fornicola, 38 N.J.Super. 365, 371 (App. Div. 1955), certif. denied, 20 N.J. 467 (1956)).
[Savage, supra, 172 N.J. at 387-88 (2002).]
When the alleged error concerns only a portion of a jury charge, the challenged portion is not to be "'dealt with in isolation but the charge should be examined as a whole to determine its overall effect.'" State v. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)). Reviewing courts are guided by several factors in their examination of whether the jury charge was proper:
(1) the nature of the error and its materiality to the jury's deliberations; (2) the strength of the evidence against the defendant; (3) whether the potential for prejudice was exacerbated or diminished by the arguments of counsel; (4) whether any questions from the jury revealed a need for clarification; and (5) the significance to be given to the absence of an objection to the charge at trial.
[Docaj, supra, 407 N.J.Super. at 365-66 (internal quotations and citations omitted).]
Dunia argues that the trial judge erred in three respects regarding the conspiracy instructions: (1) the judge failed to instruct the jurors on an essential element of second-degree robbery; (2) the judge failed to clarify to the jury which degree of robbery it was to consider in determining whether Dunia was guilty under Count One; and (3) the judge erroneously instructed the jurors that they had to find one of the co-conspirators committed an overt act in furtherance of the conspiracy in order to convict Dunia of the conspiracy charge. After reviewing the record, the evidence supports that the jury was properly charged in all three instances. To the extent the instruction contained any errors, we conclude that they were harmless and do not warrant our intervention.
Dunia complains that the trial judge skipped an instruction concerning the underlying offense of robbery when he explained the elements of conspiracy to the jury. While the judge's order of explanation may have departed from the suggested order of the model jury charge, our canvass of the entire instruction reveals that, indeed, the elements of robbery were fully articulated in close proximity to the conspiracy charge. We are satisfied that no confusion was engendered by this expedient.
Dunia further suggests that, as part of the conspiracy charge, the judge omitted telling the jury that in order to convict her of first-degree robbery, it had to consider whether, during the course of committing the theft, Dunia threatened another with or purposely put another in fear of immediate bodily injury. Contrary to Dunia's contentions, the judge's instructions included all of the elements of both first-degree and second-degree robbery, and did so in ways that were neither confusing nor unfair.
Dunia also criticizes the trial judge for erroneously injecting the concept of "use of force" into the conspiracy-to-commit-a-robbery and second-degree robbery charges. At the charge conference, the attorneys all agreed that "use of force" did not apply to this case. Nevertheless, in his instructions, the judge instructed the following:
To find the defendant guilty of robbery, the intent to commit a theft must precede or be coterminous with the use of force. In other words, the defendant must have formed the intent to commit a theft before or during her use of force. If you find the defendant formed the intent to commit a theft after her use of force, then she cannot be found guilty of robbery. To find the defendant guilty of robbery, you must be unanimous the defendant used force against Mr. Tang . . . excuse me —— let me read that again. In other words, if you find that the defendant used force but do not unanimously agree that she used force against Mr. Tang, then the State has failed to prove the existence of such force beyond a reasonable doubt.
Later, after the jury requested clarification of the instructions, the trial judge attempted to correct the error, only to again mention "use of force." Finally, after the gaffe was brought to his attention, the judge finally explained the proper iteration of the law. The back and forth between counsel and the judge over the correct jury charge was definitely drawn out, imperfect, and, at times, confusing. It also is evident that in his initial charge, the judge mistakenly provided the jury with incorrect wording specific to second-degree robbery. Nevertheless, the record clearly shows that both counsel and the judge worked together to make sure the jury ultimately received an accurate, understandable, and final instruction. Examining the charge as a whole, its completeness overcame the judge's earlier inclusion of the concept of "use of force." See State v. Delibero, 149 N.J. 90, 107 (1997) (holding that a consideration of the instruction as a whole can lead to the conclusion that its entirety overcame any omission specifically to have better instructed the jury.)
The judge focused the jury on his final corrective charge and even asked counsel if it were, in fact, correct. The Court recently remarked that we "must not lose sight of the distinction between instructions that are legally incorrect and those that are merely capable of being improved." State v. Cagno, 211 N.J. 488, 514-15 (2012) (internal quotations and citations omitted). Here, the instructions were ultimately legally correct. Moreover, the jury verdict in no way suggests that the jurors were confused or unclear as to the law the judge provided.
The accomplice liability instruction also is called into question by Dunia. She argues that such charge was not properly tailored to the facts of the case and failed to explain how the theory applied to lesser-included offenses. We disagree.
"Generally, 'for a defendant to be guilty as an accomplice, he or she must (a) possess the culpability required for the substantive crime, and (b) actually foresee and intend the result of his or her act.'" State v. Ingram, 196 N.J. 23, 35 n.8 (2008) (quoting State v. Torres, 183 N.J. 554, 556 (2005)). When a prosecution, whether in whole or in part, is based on the theory that a defendant acted as an accomplice, a court is "'obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability.'" Id. at 38 (quoting State v. Bielkiewicz, 267 N.J.Super. 520, 527 (App. Div. 1993)). Specifically, "a jury must be instructed that to find a defendant guilty . . . it must find that [s]he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" State v. Walton, 368 N.J.Super. 298, 306 (App. Div. 2004) (quoting State v. Fair, 45 N.J. 77, 95 (2002)). Furthermore, trial courts must not only instruct juries that an accomplice can have a different mental state from that of the principal, Savage, supra, 172 N.J. at 389, but they also should "tether" the jury charge to the facts that the jury has heard. Walton, supra, 368 N.J.Super. at 308.
As Dunia correctly points out, an accomplice liability charge is "inextricably linked to the jury charge for lesser-included offenses if such offenses are submitted to the jury." Id. at 306. In such instances, the trial court must then "carefully impart to the jury distinctions between the specific intent required for the grades of the offense." Ibid. (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). In addition, the trial court must "make specific reference to those offenses in the context of its charge on accomplice liability." State v. Harrington, 310 N.J.Super. 272, 278 (App. Div.), certif. denied, 156 N.J. 387 (1998).
Here, the trial judge explained the law, as well as the relationship between the concepts of accomplice liability and the lesser-included offenses:
A person is legally accountable for the conduct of another person when he or she is an accomplice of such other person in the commission of an offense. A person is an accomplice of another person in the commission of an offense if with the purpose of promoting or facilitating the commission of the offense, she solicits such other person to commit it and aids or agrees or attempts to aid such other person in planning or committing it.
. . . .
Now, this responsibility as an accomplice may be equal and the same as she who actually committed the crime, or there may be responsibility in a different degree, depending on the circumstances, as you find them to be.
. . . .
If you, however, you find the defendant not guilty of acting as an accomplice of one of the other participants on the specific crime charged, then you should consider whether the defendant did act as an accomplice of the person committing the crime with the purpose of promoting or facilitating the commission of some lesser offense than the actual crime charged in the indictment, and I have given you and read to you the lesser offenses that are included in these charges.
. . . .
Guided by these legal principles, and if you have found the defendant not guilty of a specific crime charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser degree of robbery of the second-degree, theft of a person, or theft of services. In considering whether the defendant is guilty or not guilty as an accomplice on these —— on this lesser charge, 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 her own state of mind and no one else's. Therefore, in order to find the defendant guilty of a lesser included offense of robbery of the second-degree, theft from the person, theft of services, the State must prove beyond a reasonable doubt that a person committed the crimes stated in the indictment or the lesser included offenses of robbery in the second-degree, theft from the person and theft of services, that the defendant solicited a person to commit one or more of the lesser included offenses and did aid or agree to attempt to aid him in planning to commit one of the lesser included offenses, that the defendant's purpose was to facilitate the commission of one of the lesser included offenses, or all of the lesser included offenses, that the defendant possessed a criminal state of mind that is required for the commission of the lesser included offenses.
Moreover, in his jury charge for accomplice liability, the judge adequately linked the facts of the case to the legal theory that was to guide the jurors' deliberations:
In this case, the State alleges that the defendant is equally guilty of the crimes committed by Mr. Cadogen as he testified to as well as the people that left the cab without paying for the services because she acted as an accomplice with the purpose that the specific crimes charged be committed. In order to find the defendant guilty of the specific crime charged, the State must prove beyond a reasonable doubt that one of the other people committed one of the crimes charged in the indictment as that I've already explained to you, that the defendant solicited him or her to commit it, and did aid or agree or attempt to aid him or her or them in planning or committing it, that the defendant's purpose was to promote or facilitate the commission of the offense, that the defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act.
. . . .
Now, as I had previously indicated, you will initially consider whether the defendant should be found not guilty or guilty as acting as an accomplice of one of the other occupants of the taxicab with full and equal responsibility for the specific crimes charged.
We are satisfied from the foregoing that the instruction on accomplice liability was "inextricably linked to the jury charge for lesser-included offenses, " Walton, supra, 368 N.J.Super. At 306, and the judge tethered the facts of the case to the relevant legal standards in his instruction.
To the extent that Dunia raises other contentions that revolve around the jury instructions in this case, we conclude that they are meritless. R. 2:11-3(e)(2).
We now turn to Dunia's excessive sentence argument. As previously noted, after merger, the trial judge imposed a five-year NERA sentence. Dunia contends that mitigating factors substantially outweighed the aggravating factors, and because the interest of justice demands, she should have been sentenced within the third-degree range. We cannot agree.
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
At sentencing, the trial judge found aggravating factors three, six, and nine,  but no mitigating factors. Dunia argues that mitigating factors one, two, seven, nine, and ten applied, largely due to (1) her having been acquitted of any weapons offenses; (2) Tang's lack of any injury and his money being immediately returned to him; (3) this was Dunia's first indictable conviction; and (4) her age (twenty-three years).
Upon our review of the entire record, there was ample evidence to support the identified aggravating factors, and we discern no mistaken exercise of discretion in finding that the evidence did not support any mitigating factors.
Furthermore, the record fails to provide even a speck of evidence to support Dunia's claim that she was entitled to be sentenced in the third-degree range. "[I]n sentencing under [N.J.S.A. 2C:]44-1(f)(2), a court must apply the basic principles that are applicable to all sentencing decisions under the Code. It is therefore, paramount that the sentence reflect the Legislature's intention that the severity of the crime now be the most single important factor in the sentencing process." State v. Megargel, 143 N.J. 484, 500 (1996) (citing State v. Hodge, 95 N.J. 369, 379 (1984)). Furthermore, "the Court made it clear that, because the focus remains on the offense and not the offender, the surrounding circumstances used as compelling reasons for a downgrade should arise from within the context of the offense itself." State v. Lake, 408 N.J.Super. 313, 326 (App. Div. 2009) (citing Megargel, supra, 143 N.J. at 502. Personal "characteristics or behavior of the offender are applicable only as they relate to the offense itself and give fuller context to the offense circumstances." Id. at 328. There is nothing to commend a downgrade in this case.
With the foregoing in mind, we are satisfied that Dunia's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); Roth, supra, 95 N.J. at 363-65.