October 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RAYMOND DANIELS, a/k/a RAYMOND DANIELSS, TOOKIE DANIELS, RAYMOND DANIELLS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 8, 2013
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-08-1627.
Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief).
Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Alvarez, Ostrer and Carroll.
In a five-count indictment, defendant Raymond Daniels and co-defendants James Fairley, Sonja Perry, and Larry Jones, were jointly charged with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); and two counts of second-degree robbery, N.J.S.A. 2C:15-1 (counts two and three). Fairley and Perry were separately charged with second-degree robbery, N.J.S.A. 2C:15-1 (count four); and third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count five). Following a jury trial, defendant was acquitted of counts one and three, but was convicted of count two.
On September 24, 2010, the judge granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-7.1b, and sentenced defendant to a ten-year prison term, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The present appeal followed.
We discern the following facts and procedural history from the record on appeal.
On the morning of January 14, 2009, a man, later identified as Fairley, entered PNC Bank in Asbury Park, approached a teller, handed her a threatening note, and demanded that she fill his backpack with all of the fifty- and one-hundred-dollar bills in her two cash drawers. The teller gave Fairley the money. After taking a few steps to leave, Fairley briefly returned to retrieve the note, then fled the bank. After the teller activated the alarm, the police responded, and collected the bank's surveillance footage.
On the morning of January 22, 2009, a man, also later identified as Fairley, entered First Atlantic Federal Credit Union (First Atlantic) in Neptune, approached a teller, set a note down on the counter, and demanded that she give him all of the ten-, twenty-, fifty-, and one-hundred-dollar bills at her station. On this occasion, upon getting the money, Fairley left the bank without retrieving the note. After the teller activated the alarm, the police responded and collected both the bank's surveillance footage and the note.
Asbury Park Detective Alastair Sweeney heard about the First Atlantic robbery over his police radio. Since the description of the suspect sounded similar to the suspect in the PNC robbery, Sweeney returned to PNC to conduct a more thorough investigation. In checking the surrounding area, he found several articles of clothing that matched the description of the clothing worn by the robbery suspect. Results of DNA testing on the clothing matched Fairley's DNA.
In the interim, on February 13, 2009, Fairley entered and robbed TD Bank North, also in Neptune. Using the surveillance footage, the police were able to identify Fairley as the robber.
On February 14, 2009, a joint investigative team, consisting of the Monmouth County Prosecutor's Office, the Asbury Park Police Department, and the Neptune Police Department, arrested Fairley in Atlantic City, and transported him to Asbury Park for questioning. Fairley's girlfriend, Perry, agreed to accompany them. Following the administration of Miranda warnings, the investigating officers confronted Fairley with evidence linking him to the robberies; however, he initially denied any involvement.
The next day, the same officers visited Fairley in his cell "to inform him of his complete charges [and] what his bail was set at." Fairley then volunteered the statements: "[D]o you think I spent all of that money by myself?" and "[Y]ou better get ready to arrest more people."
During the recorded interrogation that ensued, Fairley admitted his participation in the three robberies, and inculpated Perry, Jones, and defendant. Fairley indicated that defendant "wrote the [two] notes" for the January 14 and 22, 2009, bank robberies. Regarding the note used in the January 14, 2009, PNC robbery, Fairley said: "[F]irst I wrote the note [and defendant] said man you don't write no note like that you got to scare the btch you demand hundreds and fifty's [sic] let her know you've been watching her family . . . ." According to Fairley's recorded statement, Daniels wrote the note, which said something like "[h]undred's and fifty's [sic] btch I've been watching you're [sic] family don't fck with me." Fairley also explained that, when he returned home from the PNC robbery the next day, defendant, who had not gone along, "told [Fairley that he] had to pay [defendant] for the note so [Fairley] gave him something like seven [or] eight hundred dollars."
On February 17, 2009, the same officers conducted a recorded interrogation of defendant, which was later played at trial. During this interrogation, defendant repeatedly denied that he wrote the note used by Fairley in the January 14, 2009, PNC robbery. Defendant also stated that he communicated to Fairley that he did not want to have anything to do with robbing a bank. Defendant contended that Fairley came into his room the night before the robbery, and asked him to write the note, but that he "wouldn't write it for him because . . . [he] didn't want to get involved."
However, in his statement, defendant admitted that he "gave [Fairley] the pen and the pad, " and "told him what to write" in the holdup note. Defendant told Fairley "[m]ake sure you write no dye money, " "tell [th]em that you know everything that's going on in [their] life, " "I know where you live, " "I . . . been watching you, " and "follow the note and nobody get [sic] hurt." Defendant then admitted he was going to accompany Fairley on a robbery, "but I changed my mind." Defendant also recounted that, at Fairley's request, he let Fairley in through the front door of the rooming house when he returned from the PNC robbery.
Prior to trial, the court conducted a multi-day hearing on the defendants' various motions to suppress statements and physical evidence. On May 25, 2010, Fairley agreed to plead guilty to the three robbery charges (and some unrelated offenses), and to testify truthfully in any trial of the co-defendants, in exchange for a ten-year prison sentence, subject to eight-and-one-half years parole ineligibility. Perry similarly agreed to plead guilty and testify truthfully at her co-defendants' trials. On May 26, 2010, the court denied defendant's motion to suppress his February 17, 2009 statement.
Between July 22, 2010, and August 4, 2010, the court conducted a four-day trial. Called by the State, Fairley now testified that he wrote the demand note in defendant's room the night before the PNC robbery, using defendant's pad of paper, at which time he revealed to defendant that he was planning to commit the robbery. Fairley recounted the ensuing exchange with defendant:
He told me I was crazy, I need to think about what I was about to do . . . . Then I asked him what do you think I should do? He said he really don't know. Might have been Law and Order or something, and he suggested something from that show that I use in the note.
Fairley testified that, when he returned from the robbery, he called defendant to let him into the rooming house (Fairley had lost his key),  and he gave defendant $300 to buy heroin for him. When defendant returned with the drugs, Fairley "gave him a few bags" because he owed defendant both money and drugs.Fairley unequivocally denied that he gave defendant the $300 for writing the robbery note.
The State subsequently announced its intention to question Fairley about certain statements he made during the February 15, 2009 interrogation, that were inconsistent with the trial testimony that he had thus far given. The court conducted a mid-trial Gross hearing, largely relying on the testimony from the suppression hearing, as per the parties' agreement. The trial judge concluded that Fairley's prior statements were sufficiently reliable and thus admissible pursuant to N.J.R.E. 803(a)(1)(A).
Following this ruling, the State played portions of the February 15, 2009, interrogation recording that were in conflict with Fairley's trial testimony, and confronted Fairley with those inconsistencies. Specifically, the State underscored Fairley's earlier account of defendant's role in actually writing the note, as well as Fairley's previous assertion that he gave defendant a portion of the robbery proceeds as payment for his help with the note. Fairley now testified that, as a consequence of his heroin withdrawal on the date of his prior interview, he was prepared to "give [the interrogating officer] anything he wanted." Moreover, Fairley asserted that he "was dope sick" on February 15, 2009, and that "the whole statement was nothing b[ut] lies" because he "was trying to get all the help that [he] could to get detoxed."
After both sides rested, the State requested that the trial court instruct the jury on the affirmative defense of renunciation. Defendant objected, contending that he had not raised the renunciation defense, nor requested that it be included in the jury charge. The court granted the State's request, and charged the jury on renunciation. On August 5, 2010, the jury found defendant guilty on count two as to the PNC robbery. The jury found defendant not guilty on count three with respect to the First Atlantic robbery, and also on count one as to conspiracy to commit both robberies.
On appeal, defendant raises the following points:
THE TRIAL JUDGE'S DECISION TO GRANT THE PROSECUTOR'S REQUEST TO CHARGE THE JURY ON RENUNCIATION OVER DEFENSE COUNSEL'S OBJECTION PREJUDICED THE DEFENDANT AND COULD RESULT IN A LOWER BAR FOR RENUNCIATION CHARGES IN THE FUTURE.
THE TRIAL JUDGE ERRED IN ADMITTING A WITNESS' PRIOR INCONSISTENT STATEMENT THAT FAILED TO MEET THE STANDARDS FOR RELIABILITY SET FORTH IN STATE V. GROSS, 121 N.J. 1 (1990).
The following additional points were raised in defendant's pro se supplemental brief:
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE WHEREFORE THE CONVICTION MUST BE REVERSED AND THE INDICTMENT MUST BE DISMISSED.
THE CONVICTION ON COUNT TWO (PNC BANK) WAS THE RESULT OF AN UNEXPLAINED, INCONSISTENT VERDICT, WHEREFORE, IT MUST BE SET ASIDE AND A JUDGMENT OF DISMISSAL BE ENTERED IN DEFENDANT'S FAVOR.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
We turn first to defendant's contention that the judge erred in granting the State's request for a renunciation charge, over defense counsel's objection.
In determining to charge the jury on renunciation, the court noted:
[T]here's certainly evidence in this case in [defendant's] room . . . . that there was a discussion about robbing a bank, that [defendant] supplied the papers, the pen, there's actually testimony that they wrote the note that was going to be used in the bank robbery. . . . [A]nd [defendant] is there based upon a prearranged agreement and let [Fairley] in the door. . . . [C]ertainly the jury could infer that someone who has a bag of money that just robbed a bank would not . . . want to have to pound on the door to get back into his place . . . . So if there is that agreement or if there's evidence of the agreement . . ., evidence that [defendant] wrote the note, . . . knowing that it was going to be used in a bank robbery, but that the next morning he said you know what? I don't want anything to do with that, isn't renunciation in this case?
The next day, the court decided to charge the jury on renunciation, explaining:
I am going to instruct the jury with regard to the issue of renunciation . . . .
. . . I do think that the jury might be confused and there's certainly the suggestion here that [defendant] walked away from the alleged criminal offenses and under the law making a statement "I don't want to be part of this anymore" might be misunderstood . . . to mean that he . . . renounced his participation . . . . So I think in fairness to the State and in fairness to the jury . . ., that it is appropriate to . . . advise the jury as to the general principles of renunciation . . . .
The court, however, modified the model renunciation charge, and declined to instruct the jury that defendant (1) raised or was relying on renunciation as a defense; and (2) had the burden of proving renunciation.
During the August 5, 2010, deliberations, at the jury's request, the court recharged the jury on renunciation. Later that day, the jury found defendant guilty of the second count, as an accomplice to the January 14, 2009, PNC robbery. The jury acquitted defendant of the First Atlantic robbery charged in the third count, and also conspiracy to rob either bank, as charged in count one.
Citing State v. Alston, 311 N.J.Super. 113, 121 (App. Div. 1998), defendant argues that, in deciding whether to grant a request for a renunciation charge, the trial judge must first determine whether upon an examination of all the evidence, a rational basis exists for the jury to conclude that the affirmative defense was demonstrated. Here, neither side presented any evidence that defendant took further affirmative steps that prevented the commission of the PNC robbery. Hence, defendant submits, since there was no rational basis for the jury to conclude that the affirmative defense was demonstrated, the renunciation charge should not have been given. Further, defendant argues that charging the jury on renunciation was devastating to his defense that he never intended to assist Fairley, and that he never wanted any part of a bank robbery. See State v. Hughes, 215 N.J.Super. 295, 298 (App. Div.) ("Renunciation, after all, posits prior participation, and defendant could not renounce a conspiracy he had not joined."), certif. denied, 107 N.J. 55 (1986).
The State responds that defendant's argument ignores the trial court's rationale for giving the renunciation charge, which was to provide the jury with appropriate guidance regarding how to evaluate the evidence of defendant's withdrawal from participation in the robbery, rather than leaving the jury to speculate on the correct legal standard. The State further argues that the trial court's renunciation charge in no way prejudiced defendant. As noted, the court modified the model charge to reflect that defendant neither raised the renunciation defense, nor had any burden to prove it. Moreover, the court explicitly instructed the jury that it could consider the evidence that defendant "did not want to be part of a robbery or wanted nothing to do with a robbery" for any purpose that it deemed fit, including whether or not defendant conspired or was an accomplice.
Appropriate and proper charges to a jury are essential for a fair trial. State v. Savage, 172 N.J. 374, 387 (2002). [E]rroneous [jury] instructions on material issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359 (2002). The trial judge has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004) (citing State v. Thompson, 59 N.J. 396, 411 (1971)); see also State v. Fair, 45 N.J. 77, 93 (1965) (finding that "in the factual context of th[e] case that the trial court's failure to charge the jury on [a specific] issue sua sponte was nothing less than plain error requiring a reversal").
The most critical part of any jury instruction is an explanation of the applicable law, which, in a criminal trial, includes "an explanation of the elements of the offenses with which the defendant is charged, any applicable defenses and the State's burden of proving the defendant's guilt beyond a reasonable doubt." State v. Walker, 322 N.J.Super. 535, 546 (App. Div.), certif. denied, 162 N.J. 487 (1999). As the charge constitutes "a road map to guide the jury, . . . without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990).
[State v. R.T., 411 N.J.Super. 35, 46 (App. Div. 2009), aff'd, 205 N.J. 493 (2011).]
If the prosecution or defense presents a theory of accomplice liability, the "court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J.Super. 520, 527 (App. Div. 1993); State v. Maloney, __ N.J. __, __ (2013) (slip op. at 18). In such a case, a "jury must be instructed that defendant '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. Oliver, 316 N.J.Super. 592, 596 (App. Div. 1998) (quoting Bielkiewicz, supra, 267 N.J.Super. at 528), aff'd, 162 N.J. 580 (2000); see also State v. Whitaker, 200 N.J. 444, 458 (2009) (emphasis omitted) ("An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal.").
Renunciation is an affirmative defense to conspiracy, N.J.S.A. 2C:5-2e, and to accomplice liability, N.J.S.A. 2C:2-6e(3) and 2C:5-1d. The latter statute directly addresses renunciation of criminal purpose.
The question of whether to charge the affirmative defense of renunciation under the facts presented here is a close one. In affirming the trial court's decision to give the modified renunciation charge, over defendant's objection, we are mindful of the admonition that "[t]rial courts must carefully refrain from preempting defense counsel's strategic and tactical decisions and possibly prejudicing defendant's chance of acquittal." R.T., supra, 411 N.J.Super. at 52 (quoting State v. Perry, 124 N.J. 128, 162-63 (1991)).
Here, defendant did not testify. However, his recorded statement was played to the jury. Defense counsel, in his questioning of witnesses and argument to the jury, sought to emphasize that aspect of defendant's statement that he never intended to assist Fairley, and wanted no part of robbing any bank. In reading the jury charge in its entirety, as we must, we conclude that there was nothing in the charge that foreclosed a jury determination that defendant unwaveringly refused to become involved in the PNC robbery. Rather, the court underscored that the jury could consider defendant's alleged refusal for any purpose, related or unrelated to renunciation. The judge instructed:
There's evidence in this case that Mr. Daniels said at a point or at different points in time that he did not want to be part of a robbery or wanted nothing to do with a robbery. Again, your recollection of the evidence controls and you must find the facts based upon your recollection in weighing that evidence and any other evidence that you deem appropriate. Such evidence may be considered by you for any purpose you deem fit, including whether or not Mr. Daniels committed or did not commit the crime of conspiracy, and whether or not he was an accomplice as I have defined the applicable principles of law with regard to both.
The jury was thus free to accept defendant's argument that he never had any involvement with the PNC robbery. In such event, the judge's charge clearly instructed the jury that it need not go on to consider renunciation:
If you find that [defendant] is not guilty of the crime of robbery as an accomplice, then you need not consider whether he renounced the crime of robbery as an accomplice because there would be no crime of robbery as an accomplice as found by you to renounce.
We presume that the jury faithfully followed the judge's instruction. See State v. Miller, 205 N.J. 109, 126 (2011).
While highlighting defendant's claimed lack of intention to get involved with Fairley in the commission of the robberies, defendant's argument ignores other key components of his recorded statement. Although he denied that he actually wrote the note, at a minimum defendant admitted giving Fairley the pen and paper to write it, and instructed him what to say in the note. Defendant was aware of Fairley's intent to rob PNC. Moreover, he admitted in his statement that he was originally going to join Fairley on a robbery, "but I changed my mind" and "when the next morning comes, I don't want to go." The jury was equally free to accept this as the more accurate version. Absent the judge's charge on renunciation, the jury would have been left to speculate, perhaps incorrectly, as to the effect of defendant's decision not to accompany Fairley.
Critical also to our analysis is the trial judge's determination to mold the model renunciation charge to avoid prejudicing defendant. "[F]ailure to tailor a jury charge to the given facts of a case constitutes reversible error where a different outcome might have prevailed had the jury been correctly charged." Reynolds v. Gonzalez, 172 N.J. 266, 289 (2002). Here, the trial judge, in order to ensure that the jury was not misled into believing the defense was renunciation, as opposed to denial, tailored the charge. Specifically, the judge declined to charge that defendant raised or was relying on renunciation as a defense, and further declined to charge the jury that defendant had the burden of proving renunciation.
It bears emphasizing that, in evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we must consider those supposed defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999). The alleged error must be "viewed in the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). Upon reviewing the charge as a whole, if the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J.Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983). We conclude that there is sufficient evidence in the record that defendant agreed to assist, then later withdrew his assistance, to raise the issue of renunciation and warrant an accurate legal charge on that issue. We further conclude that reversal is not warranted since the charge, when viewed in its totality, neither prejudiced defendant nor unfairly impinged upon his defense strategy.
Defendant next argues that the trial judge erred in admitting Fairley's prior inconsistent statement since it failed to meet the standards for reliability set forth in State v. Gross, supra. Defendant contends that the court, in performing its Gross analysis, drew incorrect inferences, misapplied the factors, and misconstrued the record.
N.J.R.E. 803(a)(1) establishes a hearsay exception for the admission of a prior inconsistent statement. "[W]hen the statement is offered by the party calling the witness, " that party must demonstrate that the statement was "made or signed by the witness in circumstances establishing its reliability." N.J.R.E. 803(a)(1)(A). The party offering the statement must prove its reliability by a preponderance of the evidence. Gross, supra, 121 N.J. at 15-16. The Supreme Court has identified fifteen non-exclusive factors that are relevant to a trial court's determination of reliability:
'(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence.'
[Gross, supra, 121 N.J. at 10 (quoting State v. Gross, 216 N.J.Super. 98, 109-110 (App. Div. 1987).]
Ultimately, the trial court must "determine from the proofs whether the prior statement was made or signed under circumstances establishing sufficient reliability that a factfinder may fairly consider it as substantive evidence." Gross, supra, 216 N.J.Super. at 109-10 (citations omitted).
Recently, our Supreme Court explained the appropriate standard of review:
We review the trial court's evidentiary ruling under a deferential standard; it should be upheld absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment. An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted.
[State v. J.A.C., 210 N.J. 281, 295 (2012) (internal citations and quotation marks omitted).]
Here, the trial court specifically weighed and considered the various Gross factors, and concluded, "based upon all the factors and the overwhelming weight of those factors, " that Fairley's prior statement was reliable and admissible. Having reviewed the record, we discern no abuse of discretion in the judge's decision.
In his supplemental brief, defendant argues that the jury verdict was against the weight of the evidence. We disagree.
Our task is to determine if a "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). "Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, 262 N.J.Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993).
Here, if believed, Fairley's prior statement established that defendant participated in the commission of the PNC robbery by writing the demand note, and that defendant shared in the robbery proceeds. At a minimum, defendant's own statement indicated that he provided Fairley with the pen and paper to write the note, told him what to say, including the use of the threat, and that he originally intended to accompany Fairley on a robbery but then the following morning "changed [his] mind." Additionally, Perry testified that Fairley gave defendant $500 from the robbery proceeds "[b]ecause [of] the note he  wrote the night before." We thus conclude that there was sufficient evidence in the record to support defendant's conviction as an accomplice to Fairley in the PNC robbery.
Finally, we reject as meritless defendant's argument that his conviction on the second count should be reversed because it is inconsistent with his acquittal on the first and third counts. Inconsistent verdicts are permissible in our criminal justice system. See State v. Grey, 147 N.J. 4, 11-12 (1996). An inconsistent verdict is sustainable "so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004). Such verdicts only become vulnerable when "an incomplete or misleading jury instruction causes an unfair trial." Id. at 55.
Generally, this Court must "accept [an] arguably inconsistent verdict, and decline to speculate on the reasons for the jury's determination. The only factual assessment required is to ensure that there was sufficient evidence to support the charge for which defendant was convicted." Id. at 56; see also State v. Muhammad, 182 N.J. 551, 578 (2005) (citing State v. Federico, 103 N.J. 169, 176-77 (1986)) ("In reviewing a jury finding, we do not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty.").
Here, since we have found no prejudicial error in the jury charge, and sufficient evidence to support defendant's conviction on count two, reversal of that conviction on the basis that the verdicts on the remaining counts are inconsistent is clearly unwarranted.