State v. ArriagasState v. Arriagas
Appellant and a co-defendant, Francisco Ruiz, were indicted for the murder and first degree robbery of Raymond Torres. The murder count charged the defendants with knowingly causing Torres‘s death “and/or” causing his death in the course of a rоbbery. The robbery count charged that the defendants were armed with a knife. Ruiz was never apprehended. A jury found appellant guilty of felony murder and first degree robbery. Pursuant to the trial judge‘s instructions, the jury, having found appellant guilty of felony murder, did not consider whether he was also guilty of purposely or knowingly killing Torres.1 The judge imposed consecutive prison
We agree with appellant that it was plain error for the judge to have sentenced him for armed robbery. That offense necessarily merged with felony murder. See State v. Rodriguez, 97 N.J. 263 (1984); State v. Hubbard, 123 N.J. Super. 345, 352 (App.Div. 1973), certif. den., 63 N.J. 325 (1973). By keeping the jury from finding appellant guilty of purposeful or knowing murder, the judge lost the opportunity of imposing a separate sentence for robbery.
The operative facts as presented by the State differed fundamentally from those presented by appellant. According to the State, Torres left a neighborhood tavern when it closed at 3:00 a.m. He was inebriаted but able to make his way home on foot. Along the way he was set upon by the defendants who assaulted and robbed him. They left Torres when Nicholas Santana Castro (Santana) came by. Torres, who was on the ground disabled by the beating, tоld Santana he had just been robbed. Santana crossed the street to a public telephone and called the police. Meanwhile, the defendants returned to Torres and stabbed him to death so that he could not identify them.
Aрpellant testified that he had been visiting Ruiz, Ruiz‘s brother, and three other Mexican men who lived in an apartment overlooking the place where Torres was killed. Shortly after leaving the apartment to walk together to appellant‘s home, appellant and Ruiz were accosted by Torres. Torres shouted ethnic slurs and obscenities at them and kicked appellant. Appellant responded by knocking Torres to the ground. Torres got up but before the fight could resume, Ruiz pushed appellant aside and stabbed Torres to death. Appellant claimed he was unaware that Ruiz had been carrying a knife. This
If the jury accepted all the State‘s evidence, they could have found appellant guilty of first degree armed robbery and purposeful murder committed after the robbery to silence the victim. On the other hand, if the jury accepted all of appellant‘s evidence, they could have fоund him guilty of at most a simple assault. As the trial judge viewed it, if the jury found that appellant committed the robbery and participated in the homicide he would be guilty of robbery and felony murder and his guilt of purposeful or knowing murder would be superfluous; if thе jury found that he did not commit robbery but did participate in the homicide, he would be guilty only of purposeful or knowing murder. He therefore instructed the jury to consider purposeful or knowing murder only if they found appellant not guilty of robbery.
Like many other crimes, murder is defined in the Code by alternative sets of elements. A homicide is a murder when caused purposely, when caused knowingly, or “when the actor ... is engaged in the commission of ... or flight after committing ... [any of several crimеs including robbery], and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants....”
When evidence of more than one set of elements could support a guilty verdict for the same crime, the trial judge
It would also have been a mistake, however, to instruct the jury not to consider felony murder if they found appellant guilty of purposeful murder. As will appear hereafter, had the jury not found appellant guilty of felony murder, we would have had to order a new trial because of an error associated only with the purposeful murder charge.
Thus, the safest course for a trial judge to take where there is evidence to prove a crime by more than one set of elements is to have the jury return a verdict on eaсh set.2 That way the judge maximizes his sentencing options where there may be guilty verdicts of related crimes, and minimizes the chance of reversal where there is trial error relating to only one of a number of sets of elements that could define the crime.
A second point raised by appellant requires some discussion. He contends that the judge erred in refusing to charge manslaughter. A “[c]riminal homicide constitutes manslaughter
When requested to do so, a trial judge must charge manslaughter in a murder case “if there is evidence which, if believed by the jury, would reduce the crime to voluntary manslaughter.” State v. Powell, 84 N.J. 305, 317 (1980); see State v. Choice, 98 N.J. 295, 298 (1985). In Powell the defense was alibi. Powell therefore did not offer evidence of the mitigating elements of provocation/passion manslaughter nor, as a practical matter, could his attorney comfortably ask the jury to accept alternatively a manslaughter scenario. Powell was not thereby barred, however, from requesting a manslaughter charge and, when he did, the judge was required to deliver the charge because there was a plausible manslаughter scenario in the evidence.3 State v. Powell, 84 N.J. at 317-318. Appellant was in much the same position as Powell. His posture before the jury was that Ruiz, acting alone, killed
The error, however, was harmless. By its verdict thе jury found that the homicide was murder because it was committed in the course of a robbery. The “intent” necessary to commit this felony murder was a purpose to deprive Torres of his property.
Appellant‘s remaining two points are clearly without merit. He complains for the first time on appeal that the аssistant prosecutor‘s attack in his summation on the credibility of the Mexican witnesses was based on a supposed fact not supported by evidence in the record. The assistant prosecutor suggested that these witnesses departed from their earlier statements and conformed their testimony to appellant‘s with the aid of an individual who was seated in the court room during the trial. There was evidence, however, that that person chauffeured at leаst two of these witnesses to court and was in a position to recount the content of trial testimony to each of them.
The murder conviction is affirmed. The sentence, however, is vacated and the matter is remanded for resentencing after merging the first degree robbery with the murdеr. The new sentence may not exceed the aggregate sentence originally imposed for these crimes. State v. Rodriguez, 97 N.J. 263, 277 (1984).