Opinion
DOCKET NO. A-0509-11T1
07-19-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NELSON GARCIA, a/k/a LEBRON NELSON GARCIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-07-1220.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Nelson Garcia appeals from the May 16, 2011 judgment of conviction of robbery, N.J.S.A. 2C:15-1, and hindering his own apprehension by giving false information to the police, N.J.S.A. 2C:29-3(b)(4). Because of errors in the charge to the jury, we reverse and remand for a new trial.
Hudson County Indictment No. 10-07-1220 charged defendant with second-degree armed robbery (count one), fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count two) and third-degree hindering apprehension (count three). The second count was dismissed prior to trial at the request of the State.
Defendant did not testify or present any witnesses at trial. The State's witnesses presented the following facts. Henry Melendez was working as a shift supervisor at a West New York CVS drugstore at 3:30 in the afternoon when he saw defendant placing chewing gum inside his jacket. Melendez went up to defendant and asked him to hand over the gum and said that if he did, Melendez would let him go. Instead, defendant "tried to push through [Melendez] while he was holding on to the merchandise[]" with one hand. Melendez grabbed defendant and defendant pushed Melendez into a glass wall that cracked and then defendant fell. During this encounter, defendant spilled the gum he was carrying all over the floor. Defendant then got up and grabbed Melendez's arms, trying to push through him, causing Melendez pain. Eventually, Melendez captured defendant and brought him to the back of the store where defendant waited for the police to arrive. The retail value of the fifty-two packages of gum taken by defendant was $157.68. Melendez testified that, although he had no bruises, his back was sore and he "had burns on [his] arm from where [defendant] was twisting to try to get my hands off of him when [Melendez] was holding on to [defendant]." Melendez, the only eye-witness who testified, acknowledged that the store videotape, which captured the physical confrontation between the two men, had not been preserved. When the police arrived, defendant gave them a false name.
Melendez did not state whether he spoke in Spanish or English to defendant, who spoke only Spanish.
Defendant was sentenced pursuant to N.J.S.A. 2C:44-3 to a discretionary extended term of fifteen years with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:4 3-7.2, on the robbery charge and a concurrent five-year term on the charge of hindering apprehension.
At the sentencing hearing, defense counsel noted that defendant had been offered a plea agreement, which called for him to plead guilty to third-degree theft from the person and receive a prison sentence without a period of parole ineligibility. Defendant did not ask the judge to charge theft from the person, nor does he raise an issue concerning that lesser included offense on appeal. We therefore do not consider that issue.
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Defendant raises the following issues on appeal:
POINT I: THE INSTRUCTIONS FAILED TO DEFINE "ATTEMPT," AN ESSENTIAL ELEMENT OF THE
CHARGED OFFENSE OF ROBBERY. (Not Raised Below).
POINT II: THE INSTRUCTIONS IMPROPERLY PRECLUDED THE JURY FROM CONSIDERING WHETHER DEFENDANT ACTED IN SELF-DEFENSE.
POINT III: THE COURT INSTRUCTED ON A CRIME FOR WHICH DEFENDANT WAS NOT INDICTED. (Not Raised Below).
POINT IV: THE INSTRUCTIONS DISPARAGED THE SIGNIFICANCE OF THE LESSER OFFENSES. (Not Raised Below).
POINT V: THE EXTENDED TERM OF 15 YEARS, 12 YEARS AND [9] MONTHS WITHOUT PAROLE, IS EXCESSIVE FOR THIS OFFENSE AND THIS DEFENDANT.
Defendant's first four points relate to the jury charge given by the judge. We recognize that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are at the heart of the proper execution of the jury function in a criminal trial." State v. Afanador, 151 N.J. 41, 54 (1997) (citations and internal quotation marks omitted). It is essential to the right to a fair trial that jury charges be accurate and appropriate, particularly in criminal cases. State v. Green, 86 N.J. 281, 289 (1981). Our courts "have always placed an extraordinarily high value on the importance of appropriate and proper jury charges to the right to trial by jury. Erroneous instructions on matters or issues material to the jurors' deliberations are presumed to be reversible error." State v. Grunow, 102 N.J. 133, 148 (1986) (citing State v. Collier, 90 N.J. 117, 122-23 (1982)). That is, erroneous instructions are viewed as "'poor candidates for rehabilitation under the harmless error philosophy.'" State v. Belliard, 415 N.J. Super. 51, 70 (App. Div. 2 010) (quoting State v. Feaster, 156 N.J. 1, 45 (1998)), cert. denied sub. nom., Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
In assessing the propriety of a jury charge, an appellate court should examine the entire charge to see whether it was ambiguous or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005) (citation omitted).
In evaluating whether claimed defects in the jury instructions rise to the level of reversible error, we must consider those defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999) (citations omitted). 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) (citation omitted). If, upon reviewing the charge as a whole, 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.) (citations omitted), certif. denied, 94 N.J. 531 (1983).
Three out of four of defendant's jury charge issues are raised for the first time on appeal. As defense counsel did not object when the charge was given, we review these arguments pursuant to the plain error standard. R. 2:10-2; see also State v. Macon, 57 N.J. 325, 333 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (alteration in original) (citations and internal quotation marks omitted).
Applying this standard, two of these three issues are without merit. The evidence did not support an attempt charge, as a theft is completed if an individual hides merchandise so as to avoid having to pay. Defendant was indicted for robbery by using force during a theft. Theft charges are consolidated, so "that regardless of the method of stealing, all theft [is] conceptually one offense." Cannel, New Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:20-2(a); State v. Talley, 94 N.J. 385, 390 (1983). The theft here was shoplifting, N.J.S.A. 2C:20-11(b)(2), which is completed by the act of concealment to avoid payment. See N.J.S.A. 2C:20-11(a)(6) (defining the term "conceal" as not being "visible through ordinary observation"); State v. Evans, 340 N.J. Super. 244, 251 (App. Div. 2001) ("Placing an object in the pocket or wearing it while exiting the store is considered concealment."). The evidence did not require a jury instruction on attempt, as the theft offense of shoplifting is completed if an individual hides merchandise so as to avoid having to pay.
Another meritless jury instruction issue, raised for the first time on appeal, involves the judge's charge on the lesser included disorderly persons offense of shoplifting, N.J.S.A. 2C:20-11(c)(4). The judge followed the model jury charge when explaining what lesser included offenses are and specifically directed the jury that it "should consider" the lesser included offense. These charging decisions do not constitute plain error.
Defendant argues convincingly that the judge should have instructed the jury on self-defense. Defense counsel sought a self-defense charge pursuant to N.J.S.A. 2C:3-4, arguing that the jury could find that defendant acted in self-defense based on the evidence that Melendez used excessive force in subduing defendant. As our Supreme Court has held:
Because [the defendant] interposed self-defense as a justification for his conduct, we look only to the evidence that provides a rational basis for a self-defense charge.
See State v. Kelly, [97 N.J. 178, 200] (1984) (noting that "if any evidence raising the issue of self-defense is adduced, either in the State's or the defendant's case, then the jury must be instructed" on that defense); see also State v. Galloway, [133 N.J. 631, 648] (1993) (suggesting that when deciding whether defendant is entitled to specific defense, evidence must be "viewed in the light most favorable to the defendant").
[State v. Rodriguez, 195 N.J. 165, 170 (2008).]
We determined in a somewhat similar factual setting, concerning a second-degree robbery charge involving an interrupted theft of a car radio, that self-defense should have been charged to the jury. State v. Villanueva, 373 N.J. Super. 588, 597 (App. Div. 2004). In Villanueva, the defendant testified that the car owner hit him with a wooden bat while he was stealing the car radio. Id. at 594. The defendant suffered a head injury consistent with his version of events. Id. at 595. The victim of the crime testified that he did not use a bat, but merely fought with the defendant to subdue him. Id. at 592-93. The victim's father had joined in the fight and testified that he was injured by the defendant. Id. at 593-94.
Here, defendant did not testify and neither he nor Melendez sustained injuries. Nonetheless, on cross-examination defense counsel elicited testimony that the videotape of the incident was not preserved, suggesting that it would have reflected that Melendez was the aggressor. Counsel emphasized in cross-examination that defendant was protecting the stolen chewing gum with one hand and was merely seeking to leave the store. The trial judge should have charged self-defense in these circumstances, where such a charge was requested and the evidence produced raised a question as to whether the store manager used excessive force.
The judge, however, not only refused to charge self-defense, but he added language to the model jury instruction for robbery that was objected to by defense counsel and undercut the defense argument to the jury that defendant was guilty of shoplifting and not robbery because defendant did not engage in a knowing use of force. Defense counsel argued in summation that in fact Melendez grabbed defendant and pushed defendant back causing defendant to fall. Counsel argued that the lost videotape would have confirmed that Melendez wanted to stop defendant at all cost and that Melendez started the physical pushing. He argued that inconsistencies in Melendez' testimony and the police reports substantiated the defense version of events.
Defendant argues on appeal that the judge should not have instructed the jury that, "It does not matter in this case who initiated contact." Defense counsel objected to this sentence because it was not part of the standard robbery charge, and the instruction "gutted [his], a lot of [his] closing argument." Defense counsel also objected to this same instruction being repeated on the verdict sheet. Defense counsel argued to the jury, after self-defense was precluded by the judge, that defendant did not precipitate the violence, did not knowingly use force, and therefore should be acquitted of robbery. The State argued that defendant pushed Melendez first. When defense counsel objected to the addition of this language to the standard charge, the judge said:
The reason I did that was from the facts of this case I can see a question coming out whether -- whether defendant used force or not against the other person, the other person initiated it.
. . . .
What happens is I can see that jury question coming out and the appropriate thing is to charge them in a vein (phonetic) charge. You're not supposed to really add anything in addition. In a, in a recharge. That's what I did just to avoid any questions.
It is not the role of the judge to erase from the mind of the jury a question raised by the defense. Defense counsel argued that if Melendez had precipitated the violence, then defendant did not knowingly use force and was therefore guilty only of shoplifting. As the neutral controller of the court proceedings, the judge should have been more careful not to side with the State, but rather ensure defendant a fair trial. See State v. Taffaro, 195 N.J. 442, 453-54 (2008) (finding that the number of the trial court's questions, compounded by the length of the questioning, suggested to the jury that the judge doubted defendant's testimony); State v. Corbo, 32 N.J. 273, 276 (1960) (commenting that jurors are swayed by the judge's expressed views, which may be so erroneous or prejudicial as to render them resistant to curative jury instructions).
The judge also charged the jury that if defendant inflicted bodily injury when committing theft, he would be guilty of robbery. He defined bodily injury as "physical pain, illness or any impairment of a physical condition." The indictment did not include bodily injury, only stating "use of force" during a theft. Although both use of force and infliction of bodily injury appear in the same statute, N.J.S.A. 2C:15-1(a)(1), under these facts and circumstances defendant was entitled to advance warning if bodily injury was to be considered by the jury to elevate the theft to a robbery. Although some flexibility is allowed when an indictment does not explicitly spell out the theory of guilt charged by the judge, see State v. Branch, 155 N.J. 317, 324 (1998), here, the prosecutor's only theory of guilt was use of force. See ibid. (holding that an uncharged predicate offense of robbery could not be used as a basis for a felony-murder conviction). Melendez was evaluated by medical personnel at the scene, but he did not receive medical treatment nor did the prosecutor speak of bodily injury in his opening or summation. In his statements to the jury, the prosecutor repeated several times, "theft plus force equals robbery." Neither attorney anticipated that the jury charge would include the element of bodily injury.
Although this aspect of the charge is raised as plain error, when coupled with the added objected-to language concerning the lack of import of who initiated contact, and the judge's refusal to charge self-defense, as a whole the charge unfairly deprived defendant of a fair opportunity to convince the jury of his defense, that the State did not prove robbery beyond a reasonable doubt.
Reversed and remanded for a new trial. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION