Opinion
DOCKET NO. A-3340-12T4
08-31-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM E. SANBORN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ashley L. Behre, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-07-1307. Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ashley L. Behre, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant William Sanborn appeals his convictions for first degree armed robbery, third degree resisting arrest, and fourth degree unlawful possession of a weapon. We reverse the conviction for first degree armed robbery and affirm the remaining two convictions.
I
On July 13, 2011, defendant was indicted for first degree armed robbery, N.J.S.A. 2C:15-1 (count one); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); third degree possession of a weapon for an unlawful purpose N.J.S.A. 2C:39-4(d) (count three); and third degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count four).
On September 14, 2011, the court granted defendant's motion to represent himself, and appointed standby counsel. Following an evidentiary hearing, the court denied defendant's motion to suppress his confession. On October 2, 2012, a jury convicted defendant of first degree armed robbery, third degree resisting arrest, and fourth degree unlawful possession of a weapon.
On December 14, 2012, the court granted the State's motion for a mandatory extended-term sentence under New Jersey's Three Strikes Law, N.J.S.A. 2C:43-7.1(a) and, after merging the appropriate offenses, sentenced defendant to life in prison without parole.
In this appeal defendant argues, among other things, that the trial court erred when it denied his motion to suppress and improperly charged the jury on armed robbery.
At the suppression hearing, Detective Gabriel Carrasquillo of the Asbury Park Police Department testified that, on April 23, 2011, defendant was being held at the police station for an incident that occurred at approximately 11:00 p.m. the day before. At about 1:00 a.m., the detective asked defendant if he "wanted to speak." Defendant replied "Let me think about it." After processing some paperwork concerning defendant's case and taking his photograph, the detective again asked defendant if he wanted to speak and defendant replied that he did. At 1:17 a.m., the detective commenced his interview of defendant. The interview was video-recorded.
The video-recording of the interview, played during the suppression hearing, shows that the detective read defendant his Miranda rights before asking defendant any questions. Defendant was also given a written card containing the Miranda warnings and initialed each sentence on the card. Thereafter, defendant answered questions about what occurred during the incident for which he was being held.
Specifically, defendant stated that he owed a debt of ten dollars and sought to find or "take" money to satisfy his debt. He saw J.T. (victim) walking down a sidewalk in Asbury Park with a male companion. He rode by the couple on his bicycle and attempted to take J.T.'s purse by "pulling or snatching" it. J.T. resisted but because she would not let go of her purse, lost her balance and fell. When defendant saw the police approach the scene, he released the victim's purse. He pulled out a four-inch blade steak knife from his pocket and tossed the knife on the ground in the direction of the police. He then stepped away from the knife and got down on the ground.
Defendant also testified at the suppression hearing. He claims that after he was taken to the police station, the police asked him three times if he wanted to speak and each time he refused, stating he did not want to say anything because he did not want to incriminate himself. Defendant also claims he told the police that he might need a lawyer.
Defendant further testified that, at one point, he was taken into a room where he and the detective sat down at a desk. Defendant contends he gave a statement after being "pressured and threatened to admit to a crime I didn't commit," but also testified that before he gave his statement, the detective told him "don't sit here and bullshit me. If you're not going to give me an honest story, if you're not going to make a voluntary statement, don't waste my time."
Thereafter, defendant agreed to give a videotaped statement. Although he was not explicitly forced to give a confession, he contended he was implicitly coerced to make statements that were damaging to him. However, he also conceded he understood the Miranda warnings, had attended college for a period of time, and had studied the law in connection with representing himself at three previous trials.
After the suppression hearing, the trial court found the detective credible with respect to what transpired before defendant agreed to give a statement. In addition, having watched the videotape, the court also determined defendant gave his statement intelligently, knowingly and voluntarily, and further noted that the detective's demeanor during the interview was calm and non-coercive.
The relevant evidence adduced during the trial was as follows. The victim testified that she was walking down the sidewalk with a friend when defendant rode toward them on a bicycle and grabbed her left forearm. At the time, her purse was hanging from her left shoulder, tucked under her arm. The victim resisted defendant, but he continued to drag the victim along and then threw her to the ground, causing the victim to sustain a fractured nose and septum.
Police officer John Sarno testified he was driving down the street in an unmarked car in Asbury Park when he saw defendant approach the victim on his bicycle and grab the purse strap draped over her left shoulder. The victim screamed and Sarno ran from his car. He saw the victim fight with defendant but then she fell to the ground.
As he ran toward the scene Sarno yelled "Stop, police, get on the ground." Defendant started to flee, leaving the purse behind on the ground. Sarno caught up to defendant, who pulled out a knife from his waistband, held it out in front of him pointed upward, and started "shaking" it. Sarno reached for his gun and defendant dropped the knife. Defendant then got on the ground and was placed under arrest. Defendant apologized and said he owed a friend ten dollars. Defendant was thereafter transported to the police station. Defendant's videotaped confession was played during trial.
The trial court charged the jury on the elements of robbery, see N.J.S.A. 2C:15-1(a). On the issue of armed robbery, see N.J.S.A. 2C:15-1(b), the trial court charged the jury as follows:
[O]ur statute provides that robbery is also a crime if the actor is armed with or uses
or threatens the immediate use of a deadly weapon. In this case, the State must prove beyond a reasonable doubt that the defendant was armed with, used, or threatened the immediate use of a deadly weapon while in the course of committing the robbery.
Armed with a deadly weapon means that the defendant possessed or had immediate access to a deadly weapon. A deadly weapon is a firearm or other weapon, device, instrument, material, or substance, whether animate or inanimate which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.
. . . .
Here the State alleges that the defendant was armed with a knife. . . . [I]n order for you to find that the defendant was armed with a deadly weapon, the State must prove beyond a reasonable doubt not only that he possessed and had immediate access to the potential weapon, but also had the purpose to use it in a way that is capable of producing death or serious bodily injury.
[(emphasis added).]
While the court was delivering the charge, the jury viewed a copy of the verdict sheet. Four of the nine questions on the verdict sheet were as follows:
1. State your verdict with respect to Count 1 charging that William Sanborn committed the crime of robbery by using force of inflicting bodily injury on [the victim] during the course of committing a theft.
GUILTY___ NOT GUILTY___
If guilty to Question 1, go on to Question 1(a). . .
1(a). Do you find that in the course of committing that robbery of [the victim] either the attempt to commit a theft, the commission of the theft itself or in the immediate flight thereafter, the defendant was armed with or threatened the immediate use of a deadly weapon?
YES___ NO___
. . . .
1(c). State your verdict with respect to Count 1 charging that William Sanborn committed the crime of robbery by threatening Officer John Sarno with or purposely placing him in fear of immediate bodily injury during the course of committing a theft.
GUILTY___ NOT GUILTY___
If guilty, go on to Question 1(d). . .
1(d). Do you find that in the course of committing robbery either the attempt to commit a theft, the commission of the theft itself or in the immediate flight thereafter, that the defendant was armed with or threatened the immediate use of a deadly weapon against Officer Sarno?
YES___ NO___
[(emphasis added).]
Referencing the above questions, the court explained in its charge:
To summarize, under question 1 you must first decide whether the defendant was in
the course of committing the theft. Then you must consider whether if, in the course of committing the theft, he knowingly caused bodily injury to [the victim], or used force as I defined that term for you against her.
If you find that the State has proven all of these elements beyond a reasonable doubt, you should find defendant guilty of robbery under question 1.
If the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty under question 1.
Under question 1C, you must first determine if the defendant was in the course of committing a theft. Then you must consider if, in the course of committing the theft, he purposely threatened Officer Sarno with or purposely put him in fear of immediate bodily injury.
If you find the State has proven each of these elements beyond a reasonable doubt, you should find defendant guilty of robbery under question 1C.
If the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty on question 1C.
If you had found the defendant guilty of robbery under either question 1 or 1C, then you must go on to decide, if, in the course of committing that robbery, the defendant was armed with or used or threatened the immediate use of a deadly weapon. If the State has proven that additional element to you beyond a reasonable doubt, then you should answer yes to question 1A and/or question 1C.
If the State has failed to prove this additional element to you beyond a reasonable doubt, then you would answer no to question 1A and/or 1D.
[(emphasis added).]
In response to Question 1, the jury found defendant guilty, thus finding he robbed the victim by using force or inflicting bodily injury on her while committing a theft. The jury answered "yes" to Question 1(a), finding either that in the attempt to commit, during the course of committing, or in the immediate flight after committing the theft defendant was either armed with or threatened the immediate use of a deadly weapon. In response to Question 1(c), the jury did not find defendant guilty of committing the crime of robbery against Officer Sarno. The jury presumably concluded that defendant had not threatened Officer Sarno with or purposely placed him in fear of immediate bodily injury during the course of committing a theft.
II
Defendant's counsel raises the following arguments in support of defendant's appeal:
POINT I: THE JUDGE ERRED IN ADMITTING DEFENDANT'S STATEMENT AS HIS EXERCISE OF HIS RIGHT TO REMAIN SILENT WAS NOT SCRUPULOUSLY HONORED. CONTINUED QUESTIONING WAS IN VIOLATION OF NEW JERSEY'S COMMON LAW PROTECTIONS AND THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. DEFENDANT'S STATEMENT SHOULD BE SUPPRESSED.
POINT II: THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO INSTRUCT THE JURY ON "FALSE IN ONE, FALSE IN ALL," AS REQUESTED BY DEFENDANT. AS ONE OF THE STATE'S WITNESSES HAD CONCEDED AT TRIAL THAT HE LIED, THIS COURT SHOULD REVERSE DEFENDANT'S CONVICTIONS AND REMAND THE MATTER FOR A NEW TRIAL.
POINT III: THE JUDGE ERRED IN FAILING TO MAKE IT CLEAR TO THE JURY THAT THE SHOWING OF THE KNIFE MERELY TO DISPOSE OF IT DID NOT MAKE THE KNIFE A DEADLY WEAPON FOR PURPOSES OF ARMED ROBBERY.
In defendant's pro se supplemental brief, he raises the following points:
POINT I - THE TRIAL COURT ERRED IN ITS DETERMINATION THAT THE DEFENDANTS' STATEMENT WAS VOLUNTARY, WHERE THE FINDINGS WERE BASED ON BIASED CREDIBILITY CONSIDERATIONS, IN VIOLATION OF EQUAL PROTECTION AND DUE PROCESS RIGHTS, AS THERE IS A REASONABLE PROBABILITY THAT HAD THE TRIAL COURT BEEN AWARE OF DET. CARRASQUILLO'S PROPENSITY TO LIE UNDER OATH, THE OUTCOME OF THE MIRANDA HEARING WOULD HAVE BEEN DIFFERENT.
POINT II - THE INCONSISTENT VERDICT WITHIN THE ROBBERY COUNT, BEING IRRECONCILABLE WITH THE STATES' THEORY, CLEARLY DEMONSTRATE THAT THE JURY WAS MISLED BY THE JUDGE'S ERRORS IN THE INSTRUCTIONS ON THE FIRST DEGREE ROBBERY: AS A RESULT, DEFENDANT WAS DEPRIVED OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S CONST. AMEND XIV: N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT III - THE TRIAL COURT ERRED IN NOT SETTING ASIDE A VERDICT AND/OR NOT GRANTING A NEW TRIAL IN LIGHT OF A VERDICT THAT NOT SUPPORTED BY SUFFICIENT EVIDENCE.
POINT IV - THE TRIAL COURT ERRED IN ITS DETERMINATION TO NOT INSTRUCT ON THE LESSER-INCLUDED OFFENSE OF ASSAULT OR AGGRAVATED ASSAULT.
POINT V - THE STATE WITHELD EXCULPATORY DISCOVERY IT WAS REQUIRED TO DISCLOSE UNDER BRADY V. MARYLAND, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), PRIOR TO TRIAL.
In reviewing the denial of a defendant's motion to suppress evidence of a custodial statement, we defer to the judge's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted) (citations omitted). Deference is especially appropriate where the trial court's findings "'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336-37 (2010) (alteration in original) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
However, our review of a trial court's legal conclusions is plenary. State v. Vargas, 213 N.J. 301, 327 (2013). When considering a defendant's motion to suppress a statement given to the police, a court must determine if a defendant's right against self-incrimination has been violated. See State v. W.B., 205 N.J. 588, 604-05 (2011). "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) (citing State v. Galloway, 133 N.J. 631, 654 (1993)). To determine whether a statement was made voluntarily, "[a] court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation." Galloway, supra, 133 N.J. at 654.
Here, after hearing the detective's and defendant's testimony and watching the videotape of the interview, the court determined defendant had not invoked his right to remain silent prior to giving a statement. The court found credible the detective's testimony that defendant merely stated that he would "think about" whether he wanted to give a statement and, later, defendant advised the detective that he did want to give a statement. In the video, the detective can be seen and heard reading defendant his Miranda rights. The court determined defendant knew the implications of giving his statement from previous experience, yet voluntarily and intelligently waived his right to remain silent. The court's findings are supported by credible evidence in the record and are thus entitled to our deference. Elders, supra, 192 N.J. at 243-44. Accordingly, we affirm the trial court's decision to deny defendant's motion to suppress his confession.
We turn to the issues defendant raises about the jury charge on armed robbery. Because he did not object to the charge at trial, we review defendant's arguments under the plain error rule, see R. 2:10-2. Normally, "a defendant waives the right to contest an instruction on appeal if he does not object to the instructions[, but] . . . an appellate court may reverse on the basis of unchallenged error if the court finds that the error was 'clearly capable of producing an unjust result.'" State v. Adams, 194 N.J. 186, 206-07 (2008) (quoting R. 2:10-2).
N.J.S.A. 2C:15-1 provides:
a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
An act shall be deemed to be included in the phrase "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.
b. Grading. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.
[(emphasis added.)]
Here, the jury found defendant guilty of committing an act of robbery upon the victim pursuant to N.J.S.A. 2C:15-1(a)(1). The jury further found defendant committed first degree armed robbery upon the victim during the course of committing the theft, either because defendant was armed with or he threatened the immediate use of a deadly weapon. (The jury was not asked to consider whether defendant committed an act of robbery because he purposely inflicted serious bodily injury). The flaw here is that merely being armed with a knife does not constitute armed robbery. Given the content of the charge and verdict sheet, the jury may have found that defendant committed an act of first degree robbery merely because he was in possession of a knife at the time of the theft.
The words "armed with" are not defined in the statute but case law defines these words to mean possession of and immediate access to a deadly weapon. State v. Rolon, 199 N.J. 575, 581-82 (2009). "Deadly weapon" is defined in the statute. N.J.S.A. 2C:11-1(c). A deadly weapon means
any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.A "deadly weapon" always includes a firearm, but an object such as a steak knife is not a deadly weapon unless a defendant uses or intends to use such object as a deadly weapon. See State v. Riley, 306 N.J. Super. 141, 149-50 (App. Div. 1997).
[Ibid.]
To establish that defendant was armed with a deadly weapon during the commission of the theft, the State had to prove beyond a reasonable doubt that the defendant actually used or intended to use such knife as a deadly weapon. Rolon, supra, 199 N.J. at 583-85. Mere possession of the knife, even though it may have the capacity to cause death or serious bodily injury, is insufficient. Ibid. "[T]he use of or intent to use the item is pivotal to the determination of deadliness." Id. at 584.
Here, although the trial court stated in its charge that in order for the jury to find defendant was armed with a deadly weapon the State had to prove defendant possessed or had immediate access to a weapon and "the purpose to use it in a way that was capable of producing death or serious bodily injury," elsewhere in the charge the court indicated that to find defendant was armed, the jury merely had to find defendant was "armed with or used or threatened the immediate use of a deadly weapon." (emphasis added). This language, which conflicts with other language in the charge, had the capacity to lead the jury to believe that it need only find defendant was in possession of an object that could produce death or serious bodily injury to conclude that he was armed, regardless whether defendant used or intended to use the knife.
The same defective language appears in question 1(a) of the verdict sheet: "Do you find that in the course of committing that robbery of [the victim] either the attempt to commit a theft, the commission of the theft itself or in the immediate flight thereafter, the defendant was armed with or threatened the immediate use of a deadly weapon?" (emphasis added). The jury was given a choice and, as previously noted, could have answered this question in the affirmative merely because defendant had a knife in his possession. Because the language in the charge and verdict sheet had the capacity to produce an unjust result, we are constrained to reverse and remand for retrial the conviction of first degree armed robbery. We affirm the conviction of second degree unarmed robbery, unlawful possession of a weapon, and resisting arrest.
To the extent any arguments raised by either party have not been explicitly addressed in this opinion, it is because either our disposition of certain issues obviated that need or we were satisfied the arguments lacked sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part, and reversed and remanded in part. 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
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).