Opinion
DOCKET NO. A-3221-08T4
05-13-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRANKLIN PRATHER, Defendant-Appellant.
Jane M. Personette argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel; Ms. Personette, of counsel and on the brief). Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Ostrer and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-10-1015.
Jane M. Personette argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel; Ms. Personette, of counsel and on the brief).
Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In the late evening hours of Monday, July 3, 2006, the lifeless body of Paul Capers, Sr., a locally well-known paving and construction contractor, was found in his basement apartment on Valley Street in the Vauxhall section of Union Township. Capers operated his business from the same address. He had been shot once in the chest. Defendant Franklin Prather, Jr. and Maurice Knighton were indicted for the murder and other related crimes. Pursuant to a plea bargain reached with the State before trial, Knighton pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a, and subsequently testified at defendant's trial.
The jury convicted defendant of first-degree robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3a(3); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. After appropriate mergers, the judge sentenced defendant to an aggregate forty-year term of imprisonment, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant raises the following issues for our consideration:
POINT IHaving considered these arguments in light of the record and applicable legal standards, we affirm.
[DEFENDANT'S] RIGHT TO DUE PROCESS WAS VIOLATED WHEN THE COURT BELOW PRECLUDED DEFENSE COUNSEL FROM CROSS-EXAMINING MAURICE KNIGHTON REGARDING HIS CONCERNS OVER BEING A POTENTIAL SUSPECT IN A HOMICIDE IN FLORIDA, THUS VIOLATING THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES[]
CONSTITUTION AS WELL AS ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION
POINT II
VARIOUS ERRORS IN THE COURT'S JURY CHARGE REQUIRE THAT DEFENDANT'S CONVICTION BE REVERSED (not raised below)
a. Errors in the [c]ourt's charge on accomplice liability warrant reversal. (not raised below)
i. The example given by the [c]ourt during its charge was both unnecessary and unduly prejudicial[.]
ii. The [c]ourt erroneously gave the charge for accomplice liability intended for situations where there are no lesser-included offenses, rather than the charge where there is a lesser[-]included offense[.]
iii. The Court failed to instruct the jury to consider the accomplice charge separately as to each charge[.]
b. The verdict sheet provided to the jury was defective and the defectiveness was aggravated by the fact that the court provided no instruction whatsoever to the jury regarding the verdict sheet. (not raised below)
c. Both the [c]ourt's failure to discuss with Defense counsel and the assistant prosecutor the appropriate response to a jury note sent out after deliberations had begun, and the inadequate response actually given by the [c]ourt to the jury, warrant reversal. (not raised below)
POINT III
THE COURT BELOW ERRED IN FAILING TO DECLARE A MISTRIAL AFTER THE JURY WAS IMPANELED, BUT BEFORE IT WAS SWORN
POINT IV
THE COURT BELOW ERRED IN FAILING TO SUPPRESS DEFENDANT'S STATEMENT WHICH WAS OBTAINED IN VIOLATION OF MIRANDA V. ARIZONA
POINT V
NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL (not raised below)
POINT VI
THE TRIAL COURT ERRED IN FAILING TO CONSIDER AND APPLY THE APPLICABLE MITIGATING FACTORS AND IN FAILING TO SENTENCE DEFENDANT CONSISTENT WITH A CONVICTION FOR A CRIME ONE DEGREE LOWER THAN THAT FOR WHICH HE WAS CONVICTED (not raised below)
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
I
Detective William Fuentes of the Union Township Police Department was the sole witness produced at a pre-trial N.J.R.E. 104(c) hearing to determine the admissibility of defendant's statements to law enforcement. Fuentes was assigned to investigate the murder and worked closely with Detective Patricia Gusmano of the Union County Prosecutor's Office.
Fuentes described Vauxhall as "like Mayberry. Everyone knows each other." Fuentes knew both Knighton and defendant, and, on July 4, 2006, he interviewed Knighton based upon "chatter in the neighborhood." Fuentes observed what appeared to be blood on Knighton's clothing and cuts or scratches on his arms. After the interview, Knighton was arrested on an outstanding warrant for an unrelated matter.
On July 6, Fuentes interviewed defendant's cousin, Larry Prather (Larry). While in the detective's car, Larry received a phone call from defendant. Larry told defendant that he was with Fuentes en route to the police station and asked if defendant wanted to speak with Fuentes. Defendant hung up. Later that day, Fuentes learned that defendant was in the lobby of police headquarters waiting for him.
To avoid confusion, we refer to members of defendant's family by their first names. We intend no disrespect by this informality.
Fuentes and Gusmano interviewed defendant on July 6, from 4:39 p.m. to 6:25 p.m. Prior to the interview, they advised defendant of his Miranda rights using a written form. Defendant read the waiver form out loud and wrote "yes" and his initials after each line. Defendant then reviewed the waiver portion of the form and signed it, agreeing to speak with Fuentes and Gusmano.
During the interview, defendant did not appear to be under the influence of alcohol or narcotics, his speech was coherent, and he responded to, and seemed to understand, the waiver form. Defendant never invoked his right to remain silent, refused to answer any question, nor indicated that he wanted to speak to an attorney. The entire interview was recorded on a DVD and played for the judge.
We have been supplied the DVD recordings and transcripts of both statements defendant made to the police.
The detectives interviewed Knighton again at 9:05 p.m. on July 6. Knighton confessed to shooting Capers and claimed defendant was there at the time because they planned to rob Capers. Fuentes left headquarters to go next door to purchase some cigarettes at Knighton's request. Although Fuentes had told defendant he "could go home" after his interview, defendant approached Fuentes in the lobby of police headquarters and began questioning him about the investigation. Defendant was in the company of his father, Franklin Prather, Sr. (Franklin Sr.), from whom Fuentes had already secured a statement.
Fuentes acknowledged speaking to Knighton again. Defendant followed Fuentes as he purchased cigarettes for Knighton and returned to headquarters, persistently asking him questions about the case. Fuentes refused to provide defendant with much information.
Fuentes again left police headquarters to have a judge execute arrest warrants charging Knighton and defendant with Capers's murder. Defendant was again in the lobby of headquarters when Fuentes returned. Fuentes arrested defendant, took him to the same interrogation room used previously and handed defendant another Miranda waiver form identical to the one used earlier. He "asked [defendant] to read it[] again." Defendant answered the questions by writing "yes" next to each one and then signed the form.
Defendant's second interview began at 12:46 a.m. on July 7 and ended at 2:26 a.m. Fuentes thought defendant "was[] probably[] a little more agitated than the first time" because he had just been arrested. But, he appeared to fully understand the form and was not under the influence of drugs or alcohol. Once again, defendant never invoked his right to remain silent, refused to answer any question nor indicated that he wanted to speak to an attorney. The DVD of the second interview was played for the judge.
The judge denied defendant's motion to suppress, finding defendant knowingly and voluntarily waived his rights. Specifically regarding the second statement, the judge said:
The [Miranda ] form . . . was given to the defendant . . . . You could, clearly, see that on the DVD. You could, clearly, see the defendant reading the rights on the form. He read them out loud hours earlier. You could see him reading them, and you could see him writing yes next to the appropriate place next to each right where it says, "Do you understand this[?]"Defendant argues that "the administration of the Miranda warnings [the second time] was [in]sufficient" to ensure a knowing and voluntary waiver.
. . . [Defendant], clearly, understood [the waiver form] earlier. He understood it during the second interview. He read it and he wrote in[] yes, that he understood it. He signed the waiver.
Generally, "if the trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to [the trial court's] findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified." State v. Diaz-Bridges, 208 N.J. 544, 565 (2011). However, "[w]hen the trial court's factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court's interpretation is not required." Id . at 566.
"The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005). "In determining the voluntariness of a defendant's confession, we traditionally look to the totality of the circumstances to assess whether the waiver of rights was the product of a free will or police coercion." State v. Nyhammer, 197 N.J. 383, 402 (2007). Having thoroughly reviewed the record and viewed the DVDs, we are convinced that neither of defendant's arguments has sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Prior to the first interrogation, defendant read aloud from the Miranda rights form, answered the questions in writing, initialed those answers and signed the form. The judge considered Fuentes's testimony and observed the entire interrogation process, including defendant's reading of the Miranda waiver form. The evidence supports the conclusion that defendant's waiver was knowing and voluntary. See, e.g., State v. Messino, 378 N.J. Super. 559, 573, 577 (App. Div.) (affirming denial of the defendant's motion to suppress where defendant read aloud from the rights form), certif. denied, 185 N.J. 297 (2005).
Defendant continued to initiate contact with Fuentes until, a few hours later, he was arrested, placed in the same interrogation room and provided an identical rights form to read. It is clear that defendant actually read the form a second time and answered the questions anew. The motion to suppress was properly denied.
II
After the jury was impaneled but before it was sworn, the judge and the attorneys discussed, outside the jury's presence, an article about the case that appeared in the Sunday Star Ledger and on the newspaper's website. At defense counsel's request, the judge asked if any juror had "seen anything in the media . . . about this case since you were last in [c]ourt?" Every juror who responded affirmatively was interviewed at sidebar.
Based upon those discussions, the attorneys requested that the judge interview each juror individually, and he did. After conducting an extensive, individual voir dire and with the agreement of counsel, the judge excused one juror, to whom others attributed numerous statements, including an opinion that it was "an open and shut case."
Defense counsel also moved for a mistrial, arguing that the juror's comments were "very damning" and tainted the entire jury. In denying defendant's motion, the judge noted his "very extensive . . . questioning" and found the jurors "were all very candid, and honest." Only three jurors heard any part of the dismissed juror's comments, and all indicated that the comments would not prevent them from being fair and impartial.
Defendant contends that the judge erred by not granting his motion for a mistrial based on jury misconduct. We again disagree.
Because the judge interviewed all the jurors and made factual findings thereafter, our review is limited. See State v. Wakefield, 190 N.J. 397, 495 (2007) (holding in similar circumstances that "[t]he aim . . . is . . . to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record") (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). In addressing the nature, extent and impact of a juror's exposure to extraneous information,
[t]he court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby. The trial court must then determine whether the trial may proceed after excusing the taintedSee also Wakefield, supra, 190 N.J. at 496 (extending this procedure "to allegations of taint in the pre-trial jury selection process"). Ultimately, "the overarching relevant inquiry is not whether the trial court committed error, but whether it abused its discretion." Ibid. (citation omitted).
juror or jurors, or whether a mistrial is necessary.
[State v. R.D., 169 N.J. 551, 558 (2001) (citations omitted).]
Here, the judge followed the procedure dictated by the Court in R.D., supra. He extensively interviewed each juror, excused one and concluded the remaining jurors had not been tainted by the news story or the removed juror's remarks. We find no mistaken exercise of the judge's discretion in denying defendant's motion to strike the panel and declare a mistrial.
III
Before considering the remainder of defendant's arguments, we summarize the testimony at trial. Sandra Dean lived in a first-floor apartment in Capers's building on Valley Street. Sometime between 11:00 and 11:30 p.m. on the evening of July 3, 2006, she heard a loud noise from the downstairs apartment and called 9-1-1. Dean left her apartment, knocked on a small window in Capers's apartment while calling out his name, but received no response. Shortly thereafter, police officers and firefighters responded to the scene.
Between 10:30 and 11:00 p.m., Geiner Fernandez, Dean's next door neighbor, was on his front porch drinking beers with a friend. An African-American man in a white t-shirt approached and asked for permission to walk across the sidewalk. The man seemed nervous, and Fernandez thought his request was quite unusual. Fernandez also saw another African-American male in dark clothing a short time later. When Dean came out of her house and told him there was a problem, Fernandez urged her to call 9-1-1. Fuentes subsequently showed Fernandez some photographs in an attempt to identify the two men he had seen. Fernandez was "70 percent" sure that one of the pictures was of a man who had spoken to him. It was a photo of Knighton.
Union Township police officer Peter Simon and his partner entered Capers's basement apartment through the broken window. There was glass "all over the place," and the bedroom looked "disheveled." Capers was lying face down in the kitchen area, and the officers were unable to detect a pulse.
Dr. Zhongzue Hua, the Union County medical examiner, concluded that Capers had died as a result of a single gunshot wound to the chest. A bullet was extracted from the victim's body and turned over to detectives.
James D. Draper, an Essex County corrections officer, testified that, on August 5, 2006, while in Weequahic Park in Newark, a young African-American male approached and asked if he (Draper) was a police officer; Draper responded that he was not, but that he was in law enforcement. The young man told Draper that he had bought a gun from a friend, who in turn bought it from someone in Vauxhall. He found out that it was used in a robbery that "went bad." The young man was scared and told Draper that he was going to throw the gun into the lake, but then saw Draper "was so close."
After speaking with Draper, he handed Draper a brown T-shirt that was wrapped around something; Draper knew it was a weapon. He took the package to the Union Township Police Department without unwrapping it. Inside was a .38-caliber revolver with a black handle. Ballistics tests revealed it was the murder weapon.
Dolores Coniglio, from the DNA unit of the New Jersey State Police, analyzed various items retrieved from the murder scene, as well as a swab of blood from the window sill at Capers's apartment and Knighton's t-shirt and tank top. The DNA on several items matched control samples from Knighton and Capers, but Coniglio found no DNA match with defendant.
Fuentes testified consistently with his testimony at the N.J.R.E. 104(c) hearing. The DVD recordings of both statements defendant gave were played for the jury. Defendant never admitted his involvement, although the State argued defendant made several statements that were inconsistent with the testimony of Knighton, other State witnesses and the evidence in general.
Knighton testified, having already pled guilty to aggravated manslaughter and been sentenced to a prison term of twenty-three years, eighty-five percent to be served without parole. Under the terms of the plea bargain, he was not required to testify against defendant.
Knighton had grown up in Vauxhall and went to school with defendant. He was living in Florida but returned to New Jersey in mid-June 2006. Knighton admitted to using cocaine regularly prior to the shooting. Knighton and defendant spent much time together at Hawk's Tavern in Vauxhall. Each confided to the other that they needed money, and during one of the conversations, they discussed committing a robbery. Defendant agreed to get his gun from his father's house, and the two men settled on Capers as the victim, believing there "[w]ouldn't be a fight."
Knighton claimed that Larry was in the car with them on several occasions when they discussed robbing Capers; he even participated in the conversation "a little bit." While Knighton and Larry were in the car, defendant called his father and arranged to retrieve his gun. Defendant later told Knighton he "got the gun." Together with Larry, defendant and Knighton went to a CVS drugstore and purchased stockings to use as masks; Knighton and defendant went back alone to purchase duct tape to bind Capers.
The State introduced surveillance tapes from the store, along with records that timed transactions shown on the tape. It suffices to say that Knighton's version of these events was corroborated by the CVS store records.
Knighton testified that the plan was to "scare" Capers into giving them money by using defendant's gun. On the afternoon of July 3, 2006, defendant called Knighton and told him that the robbery was "a go." They spotted Capers's car in the parking lot of a Dunkin' Donuts shop and decided to arrive at his house before he did and surprise him as he exited his car. On the way to Capers's house, however, Knighton saw a girl, Tanisha Jones, whom he knew. He and defendant spoke to her for a few minutes before proceeding to Capers's home. Jones testified and corroborated Knighton's testimony in this regard.
Knighton explained that when they arrived, Capers's truck was already parked in the rear of the house. Defendant parked the car a half block away, and the two men got out and walked, defendant ahead of Knighton. Knighton had a brief conversation with "[t]wo Spanish guys" next door to Capers's house.
Defendant handed him the gun, picked up a "big piece of concrete" and threw it through the window. Knighton, wearing a stocking cap, climbed through the window feet first. He was startled when he saw Capers standing in the bedroom doorway holding a hammer. He fired the gun, and Capers fell to the floor. Knighton heard a noise coming from the apartment above, so he climbed back through the bedroom window without taking anything.
Knighton and defendant met back at defendant's car and drove away. They returned to defendant's father's house and then to Knighton's house, where Knighton changed his clothes and noticed a cut on his right arm. Knighton and defendant then went to Hawk's Tavern. Later that evening, Knighton sold defendant's gun to someone he knew only as "Jamal," for $200, drugs and cash.
Larry testified that, on Saturday or Sunday before the murder, he drove with defendant and Knighton in defendant's car to CVS. Defendant purchased, among other things, stockings. The next night, while riding again in defendant's car with defendant and Knighton, Larry heard the two men talk about robbing somebody to get some money. Capers's name came up as a possible target because he operated a business out of his house and "always had money on him."
Larry was also present when defendant got his gun from his father. Larry had seen the gun before and described it as a ".38[-]Special with [a] black handle." When they arrived at Franklin Sr.'s house, defendant went in while Larry and Knighton waited in the car. Defendant returned with a brown paper bag that he gave to Knighton; although Larry could not see what was in the bag, defendant said it was a gun. Larry did not want to be involved so he told defendant to drive him home, and he did.
At approximately 11:15 to 11:30 p.m. on July 3, defendant came to a house on Ohio Street in Maplewood, which Larry described as a place frequented by drug users, looking for Larry. Defendant looked nervous and was sweating a little. Later, Larry saw Knighton using drugs at the house on Ohio Street; he had blood on his white t-shirt.
Franklin Sr. reluctantly testified against his son. He had previously seen two guns in the garage of the property on Augustine Place in Vauxhall that his family owned and from which he was vacating during the weeks leading up to July 3, 2006. He knew defendant "had a weapon." One of the guns Franklin Sr. saw was a revolver, but it was smaller than his own .357 Magnum revolver.
Defendant called him several nights in a row immediately before the murder, asking about things that Franklin Sr. had moved from the house on Augustine Place. Defendant asked for his gun and bullets. On Friday or Saturday before the murder, defendant called Franklin Sr., angry because he could not find some of the things he wanted. That night, Franklin Sr. gave defendant some brown bags and some boxes taken from Augustine Place house. Although he had previously admitted to detectives that he knew defendant's gun was in one of the brown bags, Franklin Sr. testified at trial that he was not sure.
Debra Anderson resided in a home on Ohio Street. During the evening hours of July 3, 2006, defendant and Knighton came to her house looking for Larry, who was staying with her. She told defendant that Larry was not there, but he was "very persistent and wanted to come in and look . . . through [the] house to see . . . ." After midnight, Knighton returned by himself. He asked for a bandage claiming he had cut his arm on a fence.
IV
Before Knighton testified, defense counsel indicated his intention to cross-examine regarding an unrelated homicide investigation in Florida, claiming Knighton was a suspect and may have implicated defendant in Capers's murder to curry favor with the Florida authorities. See State v. Holmes, 290 N.J. Super. 302, 312-13 (App. Div. 1996) (characterizing the relevancy of such impeachment evidence as: "There may exist no express agreement at all that the witness will benefit from testifying favorably for the State, or, alternatively, that the witness will suffer because of failing to do so. All that matters is that the witness subjectively regards himself as vulnerable to government pressure."). The State objected, and the judge conducted a N.J.R.E. 104 hearing outside the presence of the jury.
Knighton testified that he came to New Jersey from Florida shortly before his arrest so he could see his sick mother. He acknowledged telling defendant that he was a suspect in a murder investigation in Florida. However, Knighton claimed he was never in custody when questioned about the Florida homicide and denied any involvement. After his arrest in New Jersey, Knighton was transported from the county jail to the prosecutor's office to speak to the Florida detectives who had earlier questioned him in that state. He refused to speak with them. Knighton never discussed the Florida case with Fuentes or Gusmano.
Knighton claimed that, in 2007, his sister told him that he was not being charged with murder in Florida because someone else, who Knighton knew, had confessed.
Gusmano testified that on July 24, 2006, she contacted Florida authorities because she had information that Knighton might be involved in a homicide in that state, telling them that several of Knighton's friends in New Jersey said he was "running from a body in Florida." Gusmano, however, never had a conversation with Knighton about the Florida matter, and Knighton never indicated concern about being a suspect in Florida.
The judge determined that any evidence regarding Knighton's status as a suspect in the Florida homicide was not relevant and would be "very prejudicial" and "confusing" to the jury. He concluded there was no evidence that Knighton confessed to shooting Capers or implicated defendant in return for favorable treatment in Florida.
Defendant argues that his due process rights were violated because the judge refused to permit cross-examination of Knighton regarding the Florida homicide investigation. We disagree.
"Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). While cross-examination "is an essential element of" "a criminal defendant's right to confront witnesses[,]" "[t]he scope of cross-examination . . . rests within the sound discretion of the trial court." State v. Harvey, 151 N.J. 117, 188 (1997). "[T]he court may limit defense cross-examination that otherwise would result in harassment, prejudice, confusion of the issues, irrelevancy, or would jeopardize witness safety." State v. P.H., 178 N.J. 378, 389-90 (2004) (citing State v. Budis, 125 N.J. 519, 532 (1991)).
Here, the trial judge heard the testimony regarding Knighton's alleged involvement in a homicide in Florida, as well as the contact he had with Gusmano and others about the investigation. The judge concluded that the evidence did not support the claim that Knighton implicated defendant to curry favorable treatment. He determined that the proffered cross-examination was irrelevant, purely speculative, and would unduly prejudice or confuse the jury. See N.J.R.E. 401; N.J.R.E. 403. We agree.
V
In Point II of his brief, defendant contends that various errors in the jury instructions, the verdict sheet and the judge's response to a jury question require reversal. Because the issues were not raised before the trial court, we review them employing the plain error standard. See R. 2:10-2 (permitting an appellate court to "in the interests of justice, notice plain error" when "it is of such a nature as to have been clearly capable of producing an unjust result").
(A)
"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . 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 error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised here was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
Defendant contends the judge erred by omitting a specific portion of the model charge regarding accomplice liability. Defendant was indicted for first-degree robbery, i.e., committing the robbery while "armed with, or [having] use[d] or threaten[ed] the immediate use of a deadly weapon." The judge charged the jury as to both first- and second-degree robbery, and he also charged the jury pursuant to Model Jury Charge (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6) Accomplice," Charge #One (May 22, 1995). However, defendant contends the judge erred because he "should have, but did not give," the following charge:
Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of [second degree robbery]. . . .While it may have been preferable for the judge to give this instruction, there was no objection, the omission did not amount to plain error, and even if it did, that error would have no effect upon defendant's conviction for felony murder.
In considering whether the defendant is guilty or not guilty as an accomplice 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 on his/her own state of mind and no one else's.
[Model Jury Charge (Criminal), "Liability for Another's Conduct (N.J.S.A. 2C:2-6) Accomplice," Charge #Two (May 22, 1995).]
"[A] jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that 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. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v. Fair, 45 N.J. 77, 95 (1965)). "In addition, when an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Ibid. (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).
In State v. Ingram, 196 N.J. 23, 29-32 (2008), the defendant was alleged to be an accomplice in an armed robbery and murder. He was convicted of conspiracy, robbery, felony murder and theft. Id. at 36. The jury was provided with the accomplice charge, and instructed as to the elements of robbery and theft, but the judge failed to provide the additional language from Charge #Two cited above. Id. at 37.
The Court first concluded that the omission had no effect on the defendant's convictions for conspiracy or felony murder. See id. at 39 (because "proof of either conspiracy to commit robbery or felony murder . . . would not have been sufficient to prove any lesser-included offense . . ., the logic of Bielkiewicz is inapplicable"). In declining to find "reversible error" stemming from the failure to give Charge #Two, the court explained:
[W]here the indictment substantively charged defendant with both the greater and lesser-included offenses, and the trial court properly instructed the jury in respect of each, the evil Bielkiewicz seeks to guard against -- that is, that the jury could have found that one or more of the defendants were guilty of robbery while also finding that one or more of the defendants were guilty only of the lesser-included offense of theft -- does not pose the same risk.
[Id. at 40]
Here, the jury was charged as to both first- and second-degree robbery. It was also provided instructions on accomplice liability, including that portion of the model charge defining "the elements of accomplice liability" to include "that . . . defendant possessed the criminal state of mind that is required to be proven against the person who actually committed the criminal act." Additionally, the jury was asked to answer separate interrogatories regarding defendant's guilt as to robbery in the first- and second-degree. We are firmly convinced that, under all those circumstances, the jury was not misled or confused.
We find the balance of the points raised by defendant regarding claimed errors in the charge or verdict sheet lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
(B)
Defendant contends that the judge erred by failing to discuss with counsel how to respond to the jury's request for transcripts of various witnesses' testimonies and by responding improperly. We agree that the judge should have discussed the request with counsel before responding, but the response given by the judge was appropriate.
The matter arose in the following context. After approximately ninety minutes of deliberations, the jury sent out a note. The court brought the jury into the courtroom, asked the jurors to "line up against the back wall" and stated:
Just so everybody knows, all these people here have nothing to do with your case. This is just my regular Monday morning calendar. So there's nothing to do with what you're doing. I'm just working some other cases around this case.Defense counsel lodged no objection to these instructions or the procedure employed by the judge. The jury resumed deliberations, and, approximately three hours later, without further communications, reached its verdict.
. . . .
[Your note] says transcript of Franklin Prather, Sr., Maurice Knighton, Tanisha and sequence of event[s] of the night of the murder.
Now, we don't have transcripts of the testimony. We don't have booklets of what their testimony is. We have the Court Reporter's notes of the testimony.
So if there are all or portions of the testimony that you want to hear, then you need to send out a note and tell me what you want to hear from any particular witness.
Keep in mind, if you say everything, you know we're talking about hours of playback.
If you want to hear everything, then you just send out a note telling me that you want to hear everything.
If you want to hear a specific portion of it, then you tell me that.
. . . .
Now, as far as the sequence of events of the night of the murder, I can't give you that. That's what you have to do, basically, based on the testimony and the exhibits that you have.
That's my response to you. So if you want portions of the testimony read back to you, you tell me what, all, or what parts of what witness'[s] testimony that you want, and send me out a note.
Be as specific as possible as to what you want to hear.
Recently, in State v. Miller, 205 N.J. 109, 119-20 (2011), the Court explained:
Juries routinely ask to review trial testimony when they deliberate. Absent "some unusual circumstance," those requests should be granted. The requests are a clear sign that the evidence sought is important to the deliberative process. They also reflect the reality that jurors cannot be expected to have perfect recall of every bit of evidence introduced during a trial. As a result, the "true administration of justice" requires that judges typically accede to jury requests to review testimony."Counsel must be consulted before the [trial] court responds to a question from the jury." State v. Morgan, 423 N.J. Super. 453, 469 (App. Div. 2011), certif. granted, in part, 210 N.J. 477 (2012). "A court's failure to include counsel, however, does not automatically warrant the reversal of a defendant's conviction. Counsel's exclusion must be considered in the context of the question posed by the jury." Ibid.
Ibid. (citations omitted).
Defendant concedes "[t]he [c]ourt correctly sought to clarify precisely what it was that the jury was seeking in it's [sic] note." During oral argument before us, defendant's counsel acknowledged there was no error in the substance of the judge's instructions. While it would have been preferable for the court to solicit comments from the attorneys before responding to the jury's note, we are confident that the manner and substance of the judge's response did not bring about an unjust result. R. 2:10-2.
We affirm defendant's conviction.
In light of our discussion, we reject defendant's additional claim that the cumulative effect of the trial court's errors warrant reversal.
VI
Defendant contends that, because the judge misapplied aggravating factor seven, N.J.S.A. 2C:44-1a(7), failed to consider and apply applicable mitigating factors, and failed to balance the aggravating and mitigating factors, the sentence imposed was excessive. Defendant also argues that he should have been sentenced as if convicted of aggravated manslaughter, since Knighton, who actually shot Capers, was sentenced to a term of twenty-three years. We disagree and affirm the sentence imposed.
N.J.S.A. 2C:44-1a(7) provides: "The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself."
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The court found aggravating factors three, six, nine and twelve. See N.J.S.A. 2C:44-1a(3) ("[t]he risk that the defendant will commit another offense"); 2C:44-1a(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); 2C:44-1a(9) ("[t]he need for deterring the defendant and others from violating the law"); and 2C:44-1a(12) ("[t]he defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled"). The judge also found mitigating factor seven. See N.J.S.A. 2C:44-1b(7) ("[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense"). He determined the aggravating factors "substantially outweighed" the mitigating factors.
"Appellate review of the length of a sentence is limited." Miller, supra, 205 N.J. at 127. We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Initially, defendant's claim that the judge erred in finding aggravating factor seven is without merit because it is clear that the judge never found that factor; indeed, the judgment of conviction does not contain such a finding. Defendant's argument that the judge did not engage in a balancing of aggravating and mitigating factors is similarly belied by the record.
Defendant next argues that the court should have found mitigating factors two, eight, nine, and eleven. See N.J.S.A. 2C:44-1b(2) ("defendant did not contemplate that his conduct would cause or threaten serious harm"); 2C:44-1b(8) ("defendant's conduct was the result of circumstances unlikely to recur"); 2C:44-1b(9) ("[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense"); and 2C:44-1b(11) ("[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents").
At sentencing, defense counsel urged the judge to consider all these mitigating factors, save the last. The judge adequately addressed the inapplicability of all, and we agree with his assessment. Defendant cites to no support in the record regarding factor eleven.
Lastly, we reject defendant's claim that the disparity between his sentence and Knighton's requires reversal. "Disparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). However, "[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." Ibid. (citation and quotation marks omitted). "The question . . . is whether the disparity is justifiable or unjustifiable." Id. at 233.
In this case, the judge fully explained why, despite the fact that Knighton shot Capers, the different sentences were justified:
If [defendant] didn't go get that gun from [Franklin Sr.] and those bullets[,] there would have been no gun in [Knighton's] hand to shoot Mr. Capers. [Defendant] went to somebody that [he] knew was a drug addict and in need and that [he] could manipulate[,] and [he] put the gun in his hand.We note also that cooperation with law enforcement authorities may be a factor that justifies a disparity in sentences between defendants. State v. Gonzalez, 223 N.J. Super. 377, 393 (App. Div.), certif. denied, 111 N.J. 589 (1988). Most significantly, Knighton was convicted of aggravated manslaughter, not felony murder.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION