From Casetext: Smarter Legal Research

State v. Jackson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Apr 3, 2013
DOCKET NO. A-5002-10T4 (App. Div. Apr. 3, 2013)

Opinion

DOCKET NO. A-5002-10T4

04-03-2013

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES JACKSON, Defendant-Appellant.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief). Raymond W. Hoffman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Hoffman, on the brief).


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Graves and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 08-03-0742; 09-09-2607; and 09-09-2608.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

Raymond W. Hoffman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Hoffman, on the brief). PER CURIAM

In a five-count indictment, defendant James Jackson was charged with second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) or (2) (count three); second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five). Following a jury trial, defendant was acquitted of count one, but he was convicted of the remaining counts. In a second trial, the same jury convicted defendant of second-degree possession of a handgun by a prohibited person, N.J.S.A. 2C:39-7(b).

When a defendant is charged with both unlawful possession of a weapon and possession of a weapon by a prohibited person, the two charges must be tried separately because proof that the defendant is a convicted felon "tends to prejudice the jury." State v. Ragland, 105 N.J. 189, 193 (1986).

At sentencing on January 18, 2011, the court identified three aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. After merging count two into count three, the court sentenced defendant to a twenty-year prison term, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court imposed a consecutive ten-year term with five years of parole ineligibility for the certain persons not to have weapons offense and concurrent sentences for the other charges, which included a violation of probation charge. Therefore, defendant was sentenced to an aggregate thirty-year term of imprisonment with a twenty-two-year period of parole ineligibility.

Defendant presents the following arguments on appeal:

POINT I
IT WAS REVERSIBLE ERROR FOR THE JUDGE TO FAIL TO INSTRUCT THE JURY ON ACCOMPLICE LIABILITY. (NOT RAISED BELOW).
POINT II
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE AND MERGER IS REQUIRED.
We conclude from our review of the record that defendant received a fair trial, and we affirm his convictions. However, we remand for resentencing.

The facts are relatively straightforward. On April 11, 2009, Robert Martinez, a member of the "Bloods" gang, was shot twice on Littleton Street in Newark. Martinez testified he was a heroin addict, and gang members who use drugs are put on "a death list." Martinez also testified that any member of the Bloods who kills a person on the death list "can move up in rank." According to Martinez, at some point his fellow gang members learned he was using drugs.

Defendant was a low-ranking member of the Bloods under Martinez's control. On the evening of the shooting, at around 9:30 p.m., Martinez was high on heroin and sitting on the porch of an abandoned house. Martinez noticed defendant nearby and called him over. Defendant sat down next to Martinez.

Following a brief conversation, defendant stood up to leave and Martinez felt as though he had been hit in the back of the head with "a baseball bat." Martinez did not realize he had been shot twice. As defendant walked away, Martinez noticed a second unidentified individual in the street with a gun pointed in his direction. Martinez "knew [he] was bleeding" and ran a short distance to University Hospital.

A security officer at the hospital observed that Martinez had been shot, and he was rushed to the emergency room. When Martinez's hooded jacket was removed, a bullet fell into his hand. Martinez testified the bullet went through his "chest and came out [through his] shoulder" and was in the sleeve of his jacket. That evening, a police officer collected the bullet from the hospital staff. Two days later, a second bullet was removed from Martinez's head and was recovered by the police.

Four days after the shooting, on April 15, 2009, Detective Mark Armstead interviewed Martinez at police headquarters. Martinez initially identified defendant as the shooter and signed a photograph of defendant. However, Martinez soon recanted his statement, telling Officer Armstead he did not know who shot him. At trial, Martinez explained he was "not entirely truthful" when he recanted his statement because he wanted to administer "street justice."

Martinez returned to the police station on April 16, 2009, "to give a supplemental statement" to Detective Armstead. In his supplemental statement Martinez again identified defendant as the shooter, and a warrant was issued for defendant's arrest. Defendant was taken into custody on April 18, 2009.

That same day, defendant was interviewed by Detective Armstead. After voluntarily waiving his Miranda rights, defendant provided an audiotaped statement, which was admitted into evidence at trial. In his statement, defendant maintained he had no involvement in the shooting.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
--------

At trial, Martinez testified he was shot by two people, but he was only able to identify defendant. Martinez said he was "one hundred percent positive" defendant shot him. In addition, Detective Frank Fareta, a ballistics expert, testified that both bullets recovered by the police "came from the same firearm." Defendant did not testify and did not present any witnesses.

Defense counsel emphasized in his summation that Martinez was not a credible witness:

[T]here's no question that there was a bullet in Mr. Martinez's . . . head and he was shot by the same gun, but we don't know if he was out robbing people, we don't know if those were police bullets, we don't know anything really from a proof point of view, beyond a reasonable doubt.
We know he takes between ten bags of heroin . . . [and] twenty-five a day. He admits that. We know that he's been a heroin addict since the age of thirteen. He admits that. . . . And he's the head guy of all these gangsters, but all of a sudden, because he's become a heroin addict, he now becomes a target, but he's been a heroin addict since he was thirteen. Okay.
And as a matter of fact, since this happened, he's only been arrested three times that we know. And he's still out and the case is pending, but no one is helping him stay out of jail when he's arrested three times since April 11, 2009. . . . So, no one's getting him out of jail, no one is downgrading his case, this is called get out of jail free card . . . heroin addicts sell their children, sell their bodies, they do anything. And they're good. And they're good liars. And he -- he's good.
In closing, the prosecutor agreed that the outcome of the trial depended "on the credibility of Robert Martinez."

During defendant's second trial, which immediately followed the first, defendant testified on his own behalf and denied shooting Martinez. Defendant also claimed he was not present at the time of the shooting, and he did not possess a gun.

Defendant first argues the trial court erred by failing to sua sponte instruct the jury on accomplice liability. Because defendant did not object to the charge, we consider it under the plain error standard, Rule 1:7-2, and disregard any error or omission by the trial court "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also State v. Hock, 54 N.J. 526, 538 (1969) (noting the "legal impropriety in the charge" must be "sufficiently grievous . . . to convince the court that of itself the error possessed a clear capacity to bring about an unjust result").

N.J.S.A. 2C:2-6 provides in pertinent part:

c. A person is an accomplice of another person in the commission of an offense if:
(1) With the purpose of promoting or facilitating the commission of the offense; he
(a) Solicits such other person to commit it; [or]
(b) Aids or agrees or attempts to aid such other person in planning or committing it[.]

When the State proceeds under a theory of accomplice liability, the "court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). In such a case, a "jury must be instructed that defendant '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. Oliver, 316 N.J. Super. 592, 596 (App. Div. 1998) (quoting Bielkiewicz, supra, 267 N.J. Super. at 528); see also State v. Whitaker, 200 N.J. 444, 458 (2009) ("An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal.") (emphasis omitted).

"[J]ury instructions on accomplice liability must include an instruction that a defendant can be found guilty as an accomplice of a lesser included offense even though the principal is found guilty of the more serious offense." State v. Norman, 151 N.J. 5, 37 (1997). Thus, "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.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (alteration in original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).

Nevertheless, the obligation to provide an accomplice liability instruction only arises "in situations where the evidence will support a conviction based on the theory that a defendant acted as an accomplice" and not a principal in the commission of a crime. State v. Crumb, 307 N.J. Super. 204, 221 (App. Div. 1997); see also State v. Rue, 296 N.J. Super. 108, 115 (App. Div. 1996) (finding no accomplice liability charge was warranted where the prosecution was based on "defendant's culpability . . . as a principal" and defendant maintained he "was not guilty of a crime at all"), certif. denied, 148 N.J. 463 (1997).

In this case, based on the evidence adduced at trial and defendant's claim that he was not involved in the shooting, defense counsel did not request an accomplice liability charge. Moreover, there was no rational basis for the jury to find defendant acted only as an accomplice. Consequently, the trial court did not commit plain error in failing to sua sponte give an accomplice liability instruction. See Norman, supra, 151 N.J. at 38 (stating that an accomplice liability charge was not warranted because the evidence did not permit the jury "to conclude that defendants fired the shots or aided in the firing of the shots with anything less than homicide in mind").

In his second point, defendant challenges his sentence. Defendant argues the court failed to address the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and failed to explain why consecutive sentences were warranted. We agree that a remand is necessary because the trial court failed to articulate its reasons for the imposition of consecutive sentences. See State v. Miller, 205 N.J. 109, 130 (2011) (remanding for resentencing because the record did not contain "a direct or indirect discussion of the basis for imposing consecutive sentences"). On remand, the sentencing judge should consider the Court's admonition that it is ordinarily "inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively, especially where the second offense did not pose an additional risk to the victim." State v. Miller, 108 N.J. 112, 122 (1987).

Defendant also contends the court should have merged his conviction for possession of a weapon with an unlawful purpose (count five) into his conviction for attempted murder (count three). The State concedes the point, and we agree. See State v. Diaz, 144 N.J. 628, 636 (1996) ("When the only unlawful purpose in possessing the gun is to use it to commit the substantive offense, merger is required.").

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

State v. Jackson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Apr 3, 2013
DOCKET NO. A-5002-10T4 (App. Div. Apr. 3, 2013)
Case details for

State v. Jackson

Case Details

Full title:STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES JACKSON…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Apr 3, 2013

Citations

DOCKET NO. A-5002-10T4 (App. Div. Apr. 3, 2013)