708 A.2d 731 | N.J. Super. Ct. App. Div. | 1998
The opinion of the court was delivered by
Following a lengthy jury trial, defendant was found guilty of purposeful or knowing murder (N.J.S.A 2C:ll-3a(l) and (2)), felony murder (N.J.S.A. 2C:ll-3a(3)), first degree robbery
I.
In the early evening hours of January 12, 1994, Richard Harry was walking home from work when he was accosted by four men and stabbed in the chest. Approximately one-half hour later, Rudolfo Llórente was approached by the same men and was stabbed and robbed. Harry recovered from his near-fatal wound. Llórente did not.
The prosecution’s evidence against defendant consisted primarily of the testimony of his alleged confederates — Anthony Ramirez, Greg Hickman and Jimmy Torres. These individuals were each granted immunity and testified that it was defendant who stabbed Harry and Llórente. They also recounted that defendant attempted to rob another person, Alberto Garcia Espado, some time between the two stabbings. Espado testified at trial and confirmed that defendant had attempted to rob him. However, Harry identified Hickman as the individual who had stabbed him.
Torres, for example, testified that he did not see defendant stab Harry. He claimed, instead, that he heard defendant ask Harry for a quarter. Shortly thereafter, defendant exclaimed he had “just stabbed” the victim and displayed a six or seven inch steak knife to his confederates. Torres further claimed that he and Hickman did not participate in the robbery and killing of Llórente. Torres stated that he and Hickman merely watched impassively as defendant stabbed the victim and Ramirez rifled through the victim’s pockets. Torres admitted that Hickman then approached Llorente’s lifeless body and picked him up and shook him while defendant cleaned his bloody knife in the snow. Although Hickman’s testimony deviated from that of Torres in many details, he agreed that defendant and Ramirez were the principal culprits in the robbery and murder of Llórente.
Ramirez testified that defendant had shown him a steak knife while the two men were walking toward the downtown area to meet Hickman and Torres. According to Ramirez, he did not see defendant stab Harry, having stopped to urinate in a nearby alley. Ramirez claimed that when he caught up to the other three men, Hickman told him that defendant had stabbed the victim. In his trial testimony, Ramirez asserted that defendant said, “he wanted to stick up somebody,” as the four men noticed Llórente crossing the street. Ramirez testified that defendant walked up to Llórente and “push[ed] him [in] the chest area.” Llórente immediately fell to the ground. Defendant, Torres and Ramirez then fled the scene. Ramirez testified that Hickman remained behind. Later, Hickman met the other three men and, while washing the blood from his hands with snow, exclaimed that he had “got[ten] paid.” Ramirez claimed that, while in prison after their arrest, defendant had ordered him to falsely implicate Hickman in the killing of Llórente.
It is against this factual backdrop that we consider defendant’s arguments.
II.
Initially, we are obliged to reverse defendant’s convictions for purposeful or knowing murder, first degree robbery and second degree aggravated assault. These convictions were tainted by the trial court’s faulty instructions on accomplice liability.
Defendant neither submitted a request to charge nor interposed a timely objection. We have consistently held, however, that the failure of a trial court to properly charge a jury is grounds for reversal, even though defense counsel failed to object at the appropriate time. State v. Weeks 107 N.J. 396, 410, 526 A.2d 1077 (1987). “So critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error.” State v. Martin, 119 N.J. 2, 15, 573 A.2d 1359 (1990); see State v. Weeks, 107 N.J. at 410, 526 A.2d 1077; State v. Grunow, 102 N.J. 133, 148, 506 A.2d 708 (1986). We have recently reiterated the point that “ ‘[c]lear and correct jury charges are essential for a fair trial.’ ” State v. Cook, 300 N.J.Super. 476, 488, 693 A.2d 483 (App.Div.1996) (quoting State v. Brown, 138 N.J. 481, 522, 651 A.2d 19 (1994)). The Supreme Court has said that incorrect instructions of law “are poor candidates for rehabilitation under the harmless error theory.” State v. Weeks, 107 N.J. at 410, 526 A.2d 1077 (citing State v. Warren, 104 N.J. 571, 518 A.2d 218 (1986)).
The trial court’s instructions fell afoul of these principles by inextricably linking the criminal liability of the accomplice with the criminal liability of the principal. The trial court charged the jury that it could not find defendant guilty as an accomplice unless it found that he harbored the same state of mind as the actual perpetrator. The jury was told that if defendant purposely solicited or aided “someone else in the commission of the crimes alleged in the indictment, then [it] must consider it as if he committed those crimes himself.” Although the trial court gave thorough instructions on all lesser-included offenses, it did not make specific reference to those offenses in the context of its charge on accomplice liability. See State v. Williams, 298 N.J.Super. 430, 440-41, 689 A.2d 821 (App.Div.), certif. denied, 150 N.J. 27, 695 A.2d 669 (1997); State v. Bielkiewicz, 267 N.J.Super. at
The faulty instructions on accomplice liability also tainted defendant’s conviction for first degree robbery. In this case, defendant was found guilty of robbery which was elevated to the first degree under N.J.S.A 2C:15-lb because “in the course of committing the theft the [principal] [was] ... armed with ... a deadly weapon.” Our Supreme Court has recognized that “[i]t is possible for an accomplice to be guilty of robbery and for his compatriot to be guilty of armed robbery.” State v. White, 98 N.J. 122, 130, 484 A.2d 691 (1984). The court’s instructions must be carefully crafted to apprise the jury of this principle. Here, the jury was never instructed that it could find defendant guilty as an accomplice of second degree robbery even though the principal was guilty of armed robbery.
Our examination of the record convinces us that these errors had the capacity to lead to an unjust result. We recognize that the trial court told the jury to consider each charge separately and distinctly, and that accomplice liability may be applicable to some offenses and not to others. But we are convinced that this oblique and cryptic reference did not sufficiently explain liability where differing culpable mental states were possible. See State v. Jackmon, 305 N.J.Super. at 288, 702 A.2d 489. Moreover, as we have noted, other parts of the trial court’s instructions tended to indicate that accomplice liability must be predicated upon a finding that the accomplice had the same intent as the principal. See State v. Bielkiewicz, 267 N.J.Super. at 532, 632 A.2d 277.
We also acknowledge that defendant was tried alone. The jurors were not charged with the task of determining the codefendants’ guilt. Under somewhat similar circumstances, our Supreme Court in State v. Norman, 151 N.J. 5, 697 A.2d 511 (1997), said that “it [was], at best, a remote possibility that [the jury was] distracted from [its] task by a conclusion that the principal had possessed a more culpable intent than the accomplice.” Id. at 39, 697 A.2d 511. However, the Court’s observation must be taken
In contrast, while strong evidence of defendant’s guilt was presented in this case, reasonable persons could differ in their perceptions concerning his exact role and level of participation in the criminal events. Ramirez, Torres and Hickman were not stellar witnesses wholly indifferent to the outcome of the trial. With appropriate instructions, the jury could reasonably have found that defendant did not commit the homicidal act and that his state of mind and level of participation warranted conviction of a lesser crime than that committed by one or more of his compatriots. Distinguishable on this basis are State v. Eure, 304 N.J.Super. 469, 472-73, 701 A.2d 464 (App.Div.), certif. denied, 152 N.J. 193, 704 A.2d 23 (1997); State v. Scherzer, 301 N.J.Super. 363, 472-75, 694 A.2d 196 (App.Div.), certif. denied, 151 N.J. 466, 700 A.2d 878 (1997); State v. Williams, 298 N.J.Super. at 440-42, 689 A.2d 821; and State v. Rue, 296 N.J.Super. 108,114-116, 686 A.2d 348 (App.Div.1996), certif. denied, 148 N.J. 463, 690 A.2d 611 (1997).
III.
The State urges us to reinstate defendant’s conviction for felony murder. Where an appellate court reverses a conviction for a crime into which a lesser offense has been merged, the prosecution may elect not to retry the defendant but instead request reinstatement of the merged count. See State v. Penning
At the close of the evidence, the trial court conducted a conference with respect to its proposed jury instructions. In the ensuing colloquy, the prosecutor asked the trial court whether it intended to charge the jury on the “non-slayer” affirmative defense set forth in N.J.S.A 2C:ll-3a(3). That section exonerates a defendant from felony murder if he (1) did not commit or assist in the commission of the homicidal act, (2) was not armed with a deadly weapon, (3) had no reasonable ground to believe that any other participant was armed with such a weapon, and (4) had no reasonable ground to believe that another participant intended to engage in conduct likely to result in death or serious physical injury. Ibid. Defendant’s attorney appeared to be unfamiliar with the defense when asked for his position. Although the defense had not provided the prosecutor with written notice of its intent to rely upon the affirmative defense as required by R. 3:12, defendant’s attorney, after briefly reviewing N.J.S.A 2C:ll-3a(3), asked the court to so instruct the jury.
Defense counsel devoted most of his summation to arguing that Hickman, and not defendant, murdered Llórente. We come then to the perplexing manner in which the attorney confronted the felony murder doctrine. Curiously, defense counsel expressly “eoneede[d] that [defendant was] guilty of [the underlying] robbery.” The attorney added that defendant’s participation in the robbery of Llórente was “the only part of Mr. Ramirez’s testimony that ma[de] sense.” Counsel repeated for emphasis that “[defendant], Ramirez, and Hickman went down to roust a man for [twenty-five] cents.” While emphasizing that Hickman possessed the knife and committed the fatal stabbing, the attorney also stressed that defendant was a willing participant in the robbery. Later in his comments pertaining to the felony murder doctrine,
Defendant argues that he was deprived of the effective assistance of counsel by reason of his trial attorney’s highly damaging concession. We agree. By admitting defendant’s guilt of robbery, defense counsel assured his conviction for felony murder. Had defendant been charged with capital murder, his attorney’s concession could perhaps be viewed as a reasonable strategy designed to avoid the death penalty. While it is true that by conceding his guilt of felony murder, defendant could avoid imposition of a separate, consecutive twenty year sentence on the merged robbery count, nothing in the record suggests that this was a deliberate tactical or strategic decision. We do not believe that defendant suffered this error for tactical or strategic advantage. More likely, counsel’s concession constituted an unthinking blunder. While we have considered remanding the matter for a hearing to determine what motivated defense counsel in admitting defendant’s guilt of the underlying robbery, we do not deem it a palliative to explore testimonially the thoughts of trial counsel or his pertinent conversations with his now unhappy client. Our experience in that area “suggests such inquiries demean the attorney-client relationship with no compensating gain.” State v. Macon, 57 N.J. 325, 333, 273 A.2d 1 (1971). Beyond this, to ask counsel and defendant to reconstruct their conversations and decisions now from the vantage point of twenty-twenty hindsight would be a near impossible task in light of their competing interests.
We have also considered whether defendant’s attorney was attempting to advance the non-slayer affirmative defense we described previously. If defense counsel intended to argue that the
The law with respect to claims of ineffective assistance of counsel is both clear and well-settled. Our federal and State Constitutions grant a criminal defendant the right to assistance of counsel. U.S. Const, amend. VI; N.J. Const, art. I, 1110. “The benchmark for judging any claim for ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a fair result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-93 (1984). The Strickland Court set forth a two-prong test to determine whether “counsel’s assistance was so defective as to require reversal of a [defendant’s] conviction.” Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657, 667 (1984) (“Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.”); State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987). “First, the defendant must show that counsel’s performance was deficient.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Second, the defendant must show that the performance probably prejudiced the defense. Ibid.
In light of our disposition of these issues, we need not address defendant’s remaining arguments.
The judgment of conviction is reversed, and the matter is remanded for a new trial.