Opinion
DOCKET NO. A-3172-11T3 DOCKET NO. A-3173-11T3
03-05-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. WILLIAM WRIGHT, Defendant-Respondent. STATE OF NEW JERSEY, Plaintiff-Appellant, v. MARCUS LEE, Defendant-Respondent.
Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief). Joseph M. Mazraani argued the cause for respondent Marcus Lee (Mazraani & Liguori, LLP, attorneys; Mr. Mazraani, of counsel; Laura J. Neville, on the brief). Respondent William Wright has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-02-0263.
Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, of counsel and on the brief).
Joseph M. Mazraani argued the cause for respondent Marcus Lee (Mazraani & Liguori, LLP, attorneys; Mr. Mazraani, of counsel; Laura J. Neville, on the brief).
Respondent William Wright has not filed a brief. PER CURIAM
In these back-to-back appeals, which we now consolidate, co-defendants William Wright and Marcus Lee were charged with second-degree conspiracy to rob a taxicab driver, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second-degree attempted armed robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-1 (count three); and third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four). Prior to trial, the court sua sponte dismissed count three of the indictment and granted defendants' motion to preclude the State from referring to the taxicab driver as a victim.
The joint trial commenced on December 12, 2011, and ended in a mistrial on December 20, 2011, when the jury reported it could not reach a verdict. The court memorialized its pretrial decisions and various trial rulings against the State in a January 6, 2012 order, which states that the court's rulings are "the law of the case" in the event of a retrial. We granted the State's motion for leave to appeal on March 6, 2012.
The State contends the trial court erred by: (1) dismissing count three of the indictment; (2) prohibiting the prosecutor from referring to Ruben Martinez, the driver of the taxicab, as a victim; (3) prohibiting the State from introducing evidence to rebut Lee's explanation for running from the taxicab; (4) refusing to charge lesser-included offenses supported by the evidence; (5) refusing to charge joint and constructive possession as part of the armed robbery and possession of a weapon charges; and (6) refusing to charge co-conspirator liability. For the reasons that follow, we reverse.
The facts are relatively straightforward. On November 8, 2010, Martinez was working as a driver for the Woodbridge Checker Cab Company. At about 11:30 p.m., he was parked at the Woodbridge Train Station when defendant Lee approached him and asked for a ride to Florida Grove Road. Martinez asked if Lee meant the CrossRoads Gardens apartment complex, and Lee said, "Yes."
Martinez called the dispatcher who advised him the cost of the fare was $7.50. When Martinez told Lee the price, Lee said he had just been robbed in Elizabeth so he did not have any money. However, Lee said his mother would pay the fare "on the other side." Martinez then contacted his dispatcher, who told him it was okay to proceed with the trip.
Martinez testified that during the two-to-three minute ride, Lee kept asking how long the trip would take, and Lee appeared to be texting on his cell phone. Martinez found the questions unusual, so he watched Lee "as much as possible" in his rearview mirror while he drove.
As they approached Florida Grove Road, Lee appeared to get more and more nervous. When Martinez started to turn and drive into the apartment complex, Lee said "no, no, don't go there, don't go there. Keep going straight." Martinez responded "that's not where the apartments are," but Lee insisted "that's not where I want to go, go further." Martinez followed Lee's directions away from the apartment complex, until Lee told him to pull into the driveway of a house near the intersection of Florida Grove Road and Edward Place.
Because Martinez was suspicious, he did not pull into the driveway. Instead, he pulled his cab to the side of the road in front of the house a short distance from a tree. Martinez testified that "some guy," later identified as defendant Wright, "came out from behind the tree" and waved at him, directing him to drive around the corner. Martinez said he was "really worried," but he rolled his window down to see if the man had money to pay the fare. As the man approached the cab, Martinez saw he had a knife with a four-to-five-inch blade in his right hand. According to Martinez, the man was holding the knife near his chest, as if he were "trying to disguise it."
Martinez said he had a clear view of the person who approached his cab because they were only "about a foot apart." Martinez also testified there were streetlights in the area, he had his high beams on, and the house he pulled up to "was all lit up."
When Martinez saw the knife he yelled, "Oh my God he's got a knife," and took off with Lee still in the backseat. As Martinez sped off, Lee said, "I didn't know he had a knife in his hand." Martinez responded, "You guys are trying to set me up. That's what you're doing. You're trying to set me up."
Martinez drove to a nearby 7-Eleven gas station, where he felt he would be safe. On the way, he called his dispatcher to let him know what had happened and to have him call the police.
At the gas station, Martinez jumped out of the cab, told the station attendant he was being robbed, and asked him to call the police. Lee also got out of the cab and Martinez told him, "You and your friend tried to set me up," and "I'm calling the police, you're going [to] jail, it's not right." According to Martinez, Lee responded "you do that and you're going to regret it." When Martinez said he was calling the police anyway, Lee started running.
As Lee ran off, Martinez got back into the cab and followed him. Lee returned to the house on Florida Grove Road where the incident occurred, and Martinez observed somebody open the door and let him in.
The police arrived within a minute or two, and Martinez explained what had happened. He described his fare, Lee, as "a black gentleman," "a skinny fellow," who was wearing a brown jacket. Martinez described the man with the knife outside the car, Wright, as "a black gentleman" with dreadlocks, wearing a black jacket, a black wool hat, and jeans.
Officer Gilberto Simao from the Perth Amboy Police Department established a perimeter around the home with Woodbridge officers who were already on the scene. Sergeant Carmello Jimenez, Jr., also from the Perth Amboy Police Department, approached the house with two other officers and knocked on the front door. Thomas Wright, the homeowner and defendant Wright's brother, answered the door and allowed the officers inside.
After entering the house, the officers found Lee in a bedroom on the second floor with an open door. He was lying on a bed with two children, a boy and girl, who appeared to be between five and seven years old. All three were awake, and Lee was wearing a tan jacket. On a nightstand across from the bed, Jimenez observed a black ski hat and a knife. The homeowner stated that Lee "did not live there" and "did not belong there." The officers then removed Lee and secured the weapon.
The officers found defendant Wright with a woman in another bedroom on the second floor. He was wearing a tank top and shorts, but the police observed a black jacket sticking out from under a mattress. The police told Wright to get dressed, and they seized the jacket before removing him from the home. When Lee and Wright were brought out of the house, Martinez identified them as the men who tried to rob him. He also identified the knife Wright had been holding and the jackets defendants were wearing.
At trial, Martinez was unable to differentiate between the two defendants, However, he had been able to do so on November 8, 2010, and at a pretrial hearing on September 1, 2011.
Wright's appearance had changed substantially since the night in question.
THE DISMISSAL OF COUNT THREE
CHARGING ATTEMPTED ARMED ROBBERY
Prior to jury selection, the court sua sponte dismissed count three of the indictment that charged both defendants with attempted armed robbery. The court stated: "The circumstances that exist here, do not support an attempted theft." The State argues there was no basis to dismiss the attempted robbery charge and the charge should be reinstated.
Preliminarily, we note there was no motion by either of the defendants to dismiss count three. No testimony had been taken, and the State was not afforded an adequate opportunity to fully and fairly address the issue. Despite these procedural deficiencies, we have considered the dismissal on the merits and reverse.
"Robbery is an aggravated form of theft." State v. Schenck, 186 N.J. Super. 236, 240 (Law Div. 1982). Pursuant to N.J.S.A. 2C:15-1(a), 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.
"A prerequisite for a robbery conviction is a theft or attempted theft." State v. Farrad, 164 N.J. 247, 257 (2000). N.J.S.A. 2C:5-1(a) provides in pertinent part:
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:The "substantial step" requirement of the statute is satisfied when a defendant acts in a way that is "strongly corroborative" of his or her alleged criminal purpose. Farrad, supra, 164 N.J. at 258.
. . . .
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.
In this case, the State contends "Lee was the ploy" to get Martinez to a predetermined location, so that Wright could rob him at knifepoint. Additionally, the State maintains defendants, acting in concert, took substantial steps to commit a robbery, but Martinez sped off before "Wright could use the knife to force money from him or use it to threaten bodily injury."
Based on our review of the record, we are satisfied the State's proofs were sufficient to support a charge of attempted armed robbery, and count three of the indictment must be reinstated. See State v. Samuels, 189 N.J. 236, 250 (2007) ("Attempted robbery occurs where the actor intends a theft but is interrupted before he actually harms anyone or even threatens harm.").
THE RULING THAT MARTINEZ COULD NOT BE
REFERRED TO AS "A VICTIM"
The State also contends the court abused its discretion by ruling that Martinez could not be referred to "as a victim during the course of the trial." It maintains that Martinez fits the definition of a "victim" as defined by the New Jersey Constitution and various state statutes, as well as the common meaning of that term.
During a pretrial hearing on December 12, 2011, the court stated:
Listen, the bottom line here is, you shouldn't refer to him as the victim. If somebody inadvertently says "victim"; if a cop says "victim", I don't think it's grounds for a mistrial. I mean . . . it's not the most egregious reference, particularly when there's an allegation that somebody was robbed.
But on the other hand, we should avoid referring to the purported victim as the victim; until a jury determines that indeed . . . the defendants [are] guilty of robbery; right?
Criminal defendants are entitled to a presumption of innocence as to all charges unless and until the State proves their guilt beyond a reasonable doubt. Delo v. Lashley, 507 U.S. 272, 278, 113 S. Ct. 1222, 1225, 122 L. Ed. 2d 620, 628 (1993); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072-73, 25 L. Ed. 2d 368, 375 (1970); State v. Hill, 199 N.J. 545, 558-59 (2009); N.J.S.A. 2C:1-13. They also have the right to a fair trial before an impartial jury, with their guilt or innocence determined solely upon the evidence introduced at trial. State v. Artwell, 177 N.J. 526, 533-34 (2003).
Trial courts may make such rulings as they deem necessary to protect those rights. See State v. Kuchera, 198 N.J. 482, 494-502 (2009) (addressing the issue of a prosecution witness appearing in restraints and prison garb); Artwell, supra, 177 N.J. at 534-39 (addressing the issue of a defense witness appearing in handcuffs and prison clothing); State v. Maisonet, 166 N.J. 9, 16-23 (2001) (addressing the issue of a defendant appearing in dirty and unkempt state due to denial of basic necessities in jail). Trial judges must also control the courtroom "and prevent conduct which may improperly impact on the trial process." State v. Castoran, 325 N.J. Super. 280, 285 (App. Div. 1999) (defendant wearing t-shirt that was testimonial in nature), certif. denied, 163 N.J. 78 (2000). The court's rulings on such matters are reviewed for an abuse of discretion. Kuchera, supra, 198 N.J. at 496-97, 501; Castoran, supra, 325 N.J. Super. at 285.
As the trial court recognized, if a prosecutor is allowed to repeatedly refer to a complaining witness as "a victim," instead of using a more neutral term, such as "the alleged victim," or "complainant," it is conceivable that the presumption of innocence accorded to defendants could be diminished. In this case, however, defendants failed to establish a need for a pretrial order because there was no showing that the prosecutor planned to portray Martinez as "a victim" in an effort to gain an unfair advantage or to undermine defendants' rights to a fair trial. Because there was no demonstrated need for the pretrial ruling, the better practice, in our view, would have been for the court to resolve any specific objections raised by defendants during the trial. Accordingly, the part of the January 6, 2012 order that prohibited "the State from referring to the victim, Ruben Martinez, as a victim during the course of the trial," is reversed.
REBUTTAL EVIDENCE
In its next point, the State contends the trial court erred by prohibiting it from introducing evidence that would have rebutted Lee's explanation for running from the taxicab at the 7-Eleven gas station. We agree and reverse.
At trial, Lee's attorney claimed Lee left the 7-Eleven gas station before the police arrived because he had failed to pay a fine for a traffic offense, and a warrant had been issued for his arrest. Lee's attorney asked the court to take judicial notice of the warrant, but the State objected because the warrant was sent to an address in Newark—while defendant was residing in Perth Amboy—and the State argued that Lee may not have known there was an outstanding warrant for his arrest when he ran from the taxicab.
The court ruled that it would take judicial notice of the warrant, and it instructed the jury that the Perth Amboy Municipal Court issued the warrant for Lee's arrest on October 1, 2010, because he owed $201.50 for a motor vehicle offense. However, the court was unwilling to take judicial notice of the address where the arrest warrant was sent, and the court denied the State's request to present rebuttal evidence.
In his summation, defense counsel emphasized that Lee ran from the taxicab because "he had a warrant. He had a warrant for 200 bucks. You know what happens when you got a warrant? They arrest you. They take you to jail; until you post the money, you sit in jail."
Under N.J.R.E. 201(b)(4), courts may take judicial notice of "records of the court in which the action is pending and of any other court of this state or federal court sitting for this state." Under N.J.R.E. 201(d), "[a] court shall take judicial notice if requested by a party on notice to all other parties and if supplied with the necessary information." N.J.R.E. 201(e) requires that parties be given an opportunity to be heard on the question of judicial notice. And finally, under N.J.R.E. 201(f), "[i]n determining the propriety of taking judicial notice of a matter . . . the rules of evidence shall not apply except Rule 403 or a valid claim of privilege."
In this case, the court was entitled to take judicial notice of the October 1, 2010 warrant for defendant's arrest, including the address information contained in the warrant. Moreover, the address information was proper rebuttal evidence to show that defendant may not have known there was an outstanding warrant for his arrest. We therefore reverse the part of the January 6, 2012 order that prohibits the State from presenting rebuttal evidence, in the event of a retrial, regarding Lee's claim that he fled from the taxicab because of the arrest warrant.
LESSER-INCLUDED OFFENSES
In its next point, the State contends it was error for the court not to charge lesser-included offenses that were supported by the evidence adduced at trial. Specifically, the State claims there was a rational basis for charging second-degree robbery and conspiracy to commit robbery. Again, we agree.
With regard to lesser-included offenses, the Criminal Code provides:
A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
[N.J.S.A. 2C:1-8(d).]
The Criminal Code further provides: "The 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." N.J.S.A. 2C:1-8(e). The statute has been construed to require "not only a rational basis in the evidence for a jury to convict the defendant of the included offense" but also "a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense." State v. Brent, 137 N.J. 107, 113-14 (1994) (emphasis omitted).
Moreover, as the Court has noted, "[t]he prosecutor has the primary charging responsibility, and the role of the court, within constitutional limitations, is to implement the statutory pattern of the Code for charging and prosecuting criminal offenses." State v. Sloane, 111 N.J. 293, 302 (1988). It is of no consequence whether a defendant, for strategic reasons, wants to forego a charge on lesser-included offenses. State v. Garron, 177 N.J. 147, 179-80 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). A trial court is obligated to properly instruct a jury "on the law and on all clearly indicated lesser-included offenses, even if at odds with the strategic considerations of counsel. . . . [T]he integrity of the justice system and the fact-finding process is not subordinate to the singular interests of the parties." Id. at 180; accord State v. Muhammad, 182 N.J. 551, 577 (2005); State v. Jenkins, 178 N.J. 347, 361 (2004).
An "agreement to commit a specific crime is at the heart of a conspiracy charge." Samuels, supra, 189 N.J. at 245. N.J.S.A. 2C:5-2(a) provides:
A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
Thus, conspiracy to commit robbery is a lesser-included offense of conspiracy to commit armed robbery (count one) because it "is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8(d)(1). The only element that differs is that, with conspiracy to commit robbery, there is no agreement that one or both of the defendants will be armed. See Samuels, supra, 189 N.J. at 247 (noting that a conspiracy to commit an armed robbery requires that one or both of the defendants "be armed with, use or threaten the immediate use of a deadly weapon").
Moreover, there was a rational basis for charging conspiracy to commit robbery because Martinez testified that Lee said he "didn't know [Wright] had a knife." Based on that testimony, and other evidence, which suggested that Lee was texting Wright while he was riding in the taxicab, a jury could reasonably infer that Lee and Wright conspired to rob Martinez, but Lee did not know that Wright would threaten Martinez with a weapon. Accordingly, the court erred by failing to charge conspiracy to commit second-degree robbery as a lesser-included offense of conspiracy to commit armed robbery.
Based on our examination of the record and the applicable law, we reach the same conclusion regarding the State's request to charge second-degree robbery and attempted robbery. Accordingly, the part of the January 6, 2012 order denying the State's request for lesser-included charges is reversed.
JOINT AND CONSTRUCTIVE POSSESSION
The trial court denied the State's request to charge joint and constructive possession with regard to count two (armed robbery) and count four (possession of a weapon for an unlawful purpose). The court reasoned there was no evidence of joint or constructive possession of the knife because "Mr. Wright is the one who had the knife. Mr. Wright had the knife." Nevertheless, "constructive possession exists when a person intentionally obtains a measure of control or dominion" over an item. State v. McCoy, 116 N.J. 293, 299 (1989). In this case, the police recovered the knife from a nightstand in the same room where Lee was found. Thus, the evidence was sufficient to warrant a jury instruction on joint and constructive possession.
CO-CONSPIRATOR LIABILITY
In its final point, the State argues the trial court erred by not charging co-conspirator liability in addition to accomplice liability. We agree that both theories of vicarious liability should have been presented to the jury. See State v. Roach, 146 N.J. 208, 223 (noting that "the jury should be instructed about both possibilities" when a defendant may be found guilty either as a principal or an accomplice), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Roldan, 314 N.J. Super. 173, 189 (App. Div. 1998) (noting the differences between the theories of accomplice liability and conspiratorial liability). Accordingly, in the event of a retrial, the jury should be instructed on both theories of vicarious liability.
In view of the foregoing, the January 6, 2012 order is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION