Opinion
DOCKET NO. A-3334-13T1
10-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. COREY BRISBON, a/k/a COREY PICKETT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura C. Sunyak, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a supplemental pro se brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Maven. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-04-0517. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura C. Sunyak, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a supplemental pro se brief. PER CURIAM
A Mercer County Grand Jury returned a multi-count indictment charging defendant, Corey Brisbon with second-degree burglary, N.J.S.A. 2C:18-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count three). Following a five-day trial, the jury convicted defendant of second-degree burglary, N.J.S.A. 2C:18-2 (count one) and first-degree robbery, N.J.S.A. 2C:15-1 (count two). He was acquitted of third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count three).
Defendant was sentenced to twelve years imprisonment on the robbery charge, with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent eight-year term of incarceration on the burglary charge. The judge also imposed mandatory fines and penalties.
On appeal, defendant contends the trial court's failure to render appropriate jury instructions constitutes plain error. For the reasons that follow, we disagree, and affirm.
I.
We briefly summarize the procedural history and the facts based on the evidence presented at trial.
Francisco Quijada testified that around 1:30 a.m. on December 4, 2012, he awoke to find defendant breaking into his work van through a broken window while another man stood by on a bicycle. He woke his paramour and told her to call the police. He then called out to his brother, Berardo, who was asleep in another part of the house, and the two ran outside together to confront defendant and his accomplice. On his way out, Francisco grabbed a metal pipe.
Because the brothers share the same last name, we will refer to them by their first names in the interest of clarity.
As Francisco and Berardo approached the van, they saw defendant rummaging through Francisco's tools. The bicyclist fled. Defendant jumped out of the van and ran away while the brothers chased him. As the defendant ran he yelled at the brothers not to follow him, and that he had a gun. At some point, defendant stopped running and faced Francisco and Berardo. Defendant reached inside his jacket and said "don't follow me, I told you, I'm going to kill you, I have a gun." As defendant began to withdraw his hands, Francisco, fearing that defendant would produce a gun, struck defendant on the head with the pipe. Defendant tried to hit Francisco, then ran off while throwing garbage cans at him. Defendant continued to warn the brothers to stop following him. Francisco caught and grabbed defendant, and the two began to wrestle. Berardo joined the struggle. When Francisco tried to calm defendant, he scratched Francisco and bit Berardo. In response, Francisco hit defendant twice with the pipe, causing defendant to cry out for help. When the police arrived, the brothers were standing next to defendant, who was bloodied and moaning. Francisco admitted to striking defendant.
During the altercation, Francisco suffered scratches to his chest and face, while Berardo sustained scratches on his back and face, a bite wound to his hand, and an injury to his foot. The brothers declined medical treatment. Nothing was taken from the van.
Trenton Police Officers Jose Acosta and Anthony Cerrone each testified that when they arrived on the scene they observed the Quijada brothers standing over defendant who was laying injured on the ground. Acosta learned that after defendant was seen breaking into Francisco's van, the brothers chased and detained him, and that one of them struck defendant with a metal pipe. Cerrone identified defendant as the man he saw on the ground. He stated that given the appearance of defendant's injuries, the men would have been arrested had the matter not involved a burglary.
Defendant did not testify or present witnesses on his own behalf. At the conclusion of the State's case, defendant moved for a judgment of acquittal on count two, the first-degree robbery charge, arguing that the State had failed to prove that he committed theft or that he threatened the Quijada brothers during the commission of a theft. The trial court denied the motion.
During the charge conference, defense counsel asked only for an instruction regarding prior contradictory statements and a complete reading of the elements of the burglary offense. The judge instructed the jury on second-degree burglary and the lesser-included offenses of third-degree burglary, N.J.S.A. 2C:18-2(a), and criminal trespass, N.J.S.A. 2C:18-3(a). The judge also charged the jury on the elements of first-degree robbery and the lesser-included offenses of second-degree robbery, N.J.S.A. 2C:15-1, and criminal mischief, N.J.S.A. 2C:17-3(a)(1). Defendant did not object to the court's instructions. The jury found defendant guilty of burglary and robbery as charged in the indictment.
Defendant appeals from his convictions, raising the following issues:
POINT I: THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF SELF-DEFENSE WAS PLAIN ERROR BECAUSE THE CENTRAL FACTUAL DISPUTES IN THIS CASE WERE OVER WHO WAS THE AGGRESSOR IN THE FIGHT BETWEEN DEFENDANT AND QUIJADA AND WHO ACTED REASONABLY. U.S. Const. Amend. XIV; N.J. Const. Art. I, ¶ 1. (Not Raised Below).
POINT II: THE TRIAL JUDGE'S FAILURE TO CHARGE ATTEMPTED THEFT AS A LESSER-INCLUDED OFFENSE OF ROBBERY WAS PLAIN ERROR BECAUSE ATTEMPTED THEFT WAS CLEARLY INDICATED BY THE
EVIDENCE. U.S. Const. Amend. XIV; N.J. Const. Art. I, ¶ 1. (Not Raised Below).
POINT III: THE TRIAL JUDGE'S FAILURE TO DEFINE ATTEMPT IN THE ROBBERY INSTRUCTION WAS PLAIN ERROR BECAUSE ATTEMPTED THEFT WAS THE BASIS FOR THE ROBBERY. U.S. Const. Amend. XIV; N.J. Const. Art. I, ¶ 1. (Not Raised Below).
In his pro se supplemental brief, defendant raises an additional point:
THE DEFENDANT WAS WRONGFULLY CHARGED WITH ROBBERY WHERE EVIDENCE CLEARLY SHOWS BURGLARY.
II.
Defendant contends for the first time on appeal that the court failed to provide the jury with proper jury instructions. We disagree.
"[A]ppropriate and proper charges to a jury are essential for a fair trial." State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)).
In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the errorAn "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate [ ] for rehabilitation' under the plain error theory." Id. at 341 (quoting Jordan, supra, 147 N.J. at 422). Nevertheless, any such error is to be considered "in light of the totality of the entire charge, not in isolation." Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (1997)). Moreover, "any alleged error also must be evaluated in light of the overall strength of the State's case." Ibid. (citation and internal quotation marks omitted).
possessed a clear capacity to bring about an unjust result."
[Id. at 341 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
A.
We first address defendant's argument that the trial judge erred by failing to instruct the jury on the law of self-defense. Defendant now contends that he reacted in self-defense to being struck by Francisco with the metal pipe. The State argues that defendant never asserted self-defense during trial and that the claim is contrary to defendant's trial strategy, that no robbery or burglary occurred because he was not the individual who broke into Francisco's van. Additionally, the State contends that a charge on the use of force in self-defense was not warranted, even if it had been requested, because defendant was the initial aggressor.
N.J.S.A. 2C:3-4 provides in relevant part:
a. Use of force justifiable for protection of the person. Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
b. Limitations on justifying necessity for use of force.
(1) The use of force is not justifiable under this section:
. . . .
(b) to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
. . . .
(iii) The actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.
(2) The use of force is not justifiable under this section . . . if:
(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter[.]
A trial court must instruct a jury sua sponte on self-defense only where "there exists evidence . . . sufficient to provide a rational basis for its applicability [and which] clearly indicate[s] such a defense." State v. Galicia, 210 N.J. 364, 390 (2012) (citations and internal quotation marks omitted). "The right to self-defense is only available to one who is without fault." State v. Rivers, 252 N.J. Super. 142, 149 (App. Div. 1991); see also State v. Moore, 158 N.J. 292, 312 (1999) ("Defendant cannot claim self-defense when he was the aggressor.")
Defendant contends that he acted reasonably in response to Francisco's use of excessive force against him. Relying on State v. Villanueva, 373 N.J. Super. 588 (App. Div. 2004), defendant argues that he was entitled to a self-defense instruction. Defendant's reliance on Villanueva is misplaced.
Although that case also involved a physical altercation between a would-be thief and a property-owner, there the property owner struck defendant first when he discovered the defendant trying to steal a radio from his car. Id. at 591-92. Defendant then kicked his legs through the broken window and hit the owner when he attempted to flee from the car. Id. at 592. We held that "the jury could have viewed [the] defendant's conduct after he was discovered in [the owner's] car as causally unrelated to the theft," id. at 595, and that "upon a suitable factual showing, self-defense may be asserted as a defense to a charge of second-degree robbery," id. at 597.
Here, the asserted defense lacks such a factual basis. The uncontroverted evidence establishes that defendant initiated the use of force during his flight from the commission of the burglary, when he threatened to kill the Quijada brothers with a gun. Defendant's repeated threats and additional gesture, taking his hand from his pocket as if he had a gun, prompted Francisco to strike him with the metal pipe. Only then did defendant retaliate by hitting Francisco. However, by that time, he had already provoked the use of force against him. Under these circumstances, the evidence does not "clearly indicate" self-defense. Galicia, supra, 210 N.J. at 390. Accordingly, we do not consider the trial court's failure to instruct the jury on self-defense as plain error possessing a "clear capacity to bring about an unjust result." See Chapland, supra, 187 N.J. at 289; see also State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010) (quoting State v. Adam, 194 N.J. 186, 206-07 (2008)) (internal quotation marks omitted), certif. denied, 205 N.J. 81 (2011).
B.
Next, defendant argues, for the first time on appeal, that the trial court erred in failing to instruct the jury on attempted theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:5-1, as a lesser-included offense of robbery. Defendant again points to Villanueva, supra, in which we concluded that the court's failure to charge attempted theft was plain error requiring reversal. We disagree because the factual circumstances of this case warrant a different result.
Lesser-included offense instructions are intended to avoid "the possibility of an all-or-nothing verdict." State v. Muniz, 118 N.J. 319, 332 (1990); see State v. Short, 131 N.J. 47, 54 (1993) (explaining that a jury "may be tempted to find defendant guilty of a crime he or she did not commit simply because it prefers to convict on some crime rather than no crime at all"). N.J.S.A. 2C:1-8(e) directs that a trial court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." Our Supreme Court has long interpreted the statute's directive as requiring satisfaction of a two-part test: "(1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." State v. Thomas, 187 N.J. 119, 131 (2006).
In the absence of a request by defense counsel, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004) (citing State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204, (2004)). Conversely, a trial "court ha[s] no duty to instruct the jury sua sponte on [an included offense charge if] the evidence [does] not clearly indicate or warrant such a charge." State v. Savage, 172 N.J. 374, 401 (2002) (citations omitted). See State v. Denofa, 187 N.J. 24, 41-42 (2006) (summarizing standards for lesser-included offense instructions). The trial court is not required to "meticulously sift through" every trial record, just in case an unquestioned charge might be supported. Thomas, supra, 187 N.J. at 134 (quoting State v. Choice, 98 N.J. 295, 299 (1985)).
N.J.S.A. 20-3, theft by unlawful taking, provides that "[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over, moveable property of another with purpose to deprive him thereof." The crime of robbery includes theft. See State v. Lopez, 187 N.J. 91, 99 (2006) ("N.J.S.A. 2C:15-1(a) . . . reaches acts committed during an escape from the theft or attempted theft.") A person commits robbery if "in the course of committing a theft" the person inflicts bodily injury or uses force upon another, threatens another with or purposely puts the other in fear of immediate bodily injury, or commits or threatens immediately to commit a crime of the first- or second-degree. N.J.S.A. 2C:15-1(a)(1)-(3). An act is "deemed . . . included . . . 'in the course of committing a theft' if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission." N.J.S.A. 2C:15-1(a)(3).
The attempt statute provides that:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
. . . .
Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
[N.J.S.A. 2C:5-1(a)(3) (emphasis added).]
In the present case, the trial court properly discharged its duty to instruct on lesser-included offenses to the first-degree robbery charge, and thereby avoided the possibility of an all-or-nothing verdict. First, the court instructed the jury on first-degree robbery in accordance with the Model Jury Charges, and in doing so defined theft, on two occasions. The court also instructed the jury on two lesser-included offenses of robbery, namely, second-degree robbery, N.J.S.A. 2C:15-1(b), and criminal mischief, N.J.S.A. 2C:17-3.
Unlike in Villanueva, in this case the jury was given several options. The jury apparently found that the robbery was completed upon defendant's direct threats to the Quijada brothers, made during his immediate flight from the van. For that reason, we do not consider the trial court's failure to charge the jury with the lesser-included offense of attempted theft as plain error that possessed "a clear capacity to bring about an unjust result." See R. 2:10-2; State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Burns, 192 N.J. 312, 341 (2007)) (internal quotation marks omitted).
C.
Defendant further argues that the trial judge should have instructed the jury on the law of attempt because his attempted theft of Francisco's tools was the basis for the robbery conviction.
In its final instruction to the jury, the court stated:
As I have said[,] the State must prove beyond a reasonable doubt that the defendant was in the course of committing a theft. In this connection you are advised that 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 the theft itself or in immediate flight after the attempt or commission. Theft is defined as the unlawful taking or exercise of unlawful control over property of another with purpose to deprive him thereof.The judge continued to define attempt in the context of bodily injury, stating: "A person is guilty of an attempt to inflict bodily injury if he . . . purposely commits an act which constitutes a substantial step towards the commission of the infliction of the bodily injury." (Emphasis added). After receiving these instructions the jury convicted defendant of robbery, which required it to find that during the commission of the theft itself or in immediate flight after the attempt, defendant threatened another with, or purposely puts the other in fear of, immediate bodily injury.
The court's instructions tracked the Model Jury charges for robbery. Model Jury Charge (Criminal), "Robbery In the First Degree" (2012). --------
While the court did not provide the jury the verbatim definition of attempt, it provided the critical element, namely, that the act must constitute "a substantial step" toward the commission of the offense. We are satisfied that viewing the instructions as a whole, the court adequately charged the jury regarding attempt. Moreover, we have no doubt that the jury understood the instructions. E.g., State v. Smith, 322 N.J. Super. 385, 400 (App. Div.) ("Given [defendant's] testimony, coupled with the overwhelming evidence of defendant's guilt, and the appearance elsewhere in the jury instructions of a proper charge on attempt, we have no doubt that the failure to define attempt in the robbery charge did not prejudice defendant's rights."), certif. denied, 162 N.J. 489 (1999).
D.
Lastly, in defendant's uncounseled supplemental brief, he admits that he "burglarized a vehicle with the intent to steal valuables stored inside" and that the owners gave chase as he fled. Defendant further concedes that, "[i]n an attempt to get the owner to stop chasing him, [he] yelled; [sic] 'stop chasing me I have a gun!'" Nevertheless, defendant argues that while the evidence supports the burglary conviction, because he broke into the vehicle with the intent to commit an offense, there is no evidence to support the robbery conviction. We consider this argument so meritless that it does not warrant discussion. R. 2:11-3(e)(2). It suffices to say that the substantial and uncontroverted evidence adduced at trial establishes that defendant threatened physical violence with a deadly weapon in his immediate flight from the commission of a burglary and attempted theft, which constitutes first-degree robbery. N.J.S.A. 2C:5-1.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION