State v. WootersState v. Wooters
The defendant in this case pleaded guilty to three counts of burglary сontrary to
The six counts of the indictment to which defendant pleaded guilty charged that he and his accomplices had committed theft and burglary at each of three separate residences. Two of those counts charged that the property taken from one of those residences included a rifle and a shotgun. The State contended in the Law Division that the defendant‘s guilty pleas to those counts required that he be sentenced to a period of parole ineligibility pursuant to the Graves Act,
A hearing was held at which testimony was presented on the issue of the applicability of the Graves Act. The trial judge held that the statute was applicable. He sentenced the defendant to concurrent five year terms for all of the counts of the indictment to which the defendant had pleaded guilty. On the counts which charged the defendant with theft and burglary of a rifle and shotgun, the court imposed concurrent three-year terms of parole ineligibility pursuant to the Graves Act. This
In its brief to this сourt, the State concedes, correctly, that the imposition of Graves Act parole ineligibility on the count of the indictment charging defendant with theft in violation of
Defendant‘s guilty plea to the burglary count which charges a violation of
One of the theft counts to which the defendant pleaded guilty establishes that, either as a principal or as an accomplice, he “did unlawfully take the movable property of [the victim], that is, one rifle, shotgun....” At the Graves Act hearing, a State‘s witness testified that the defendant admitted to him that the defendant himself carried the rifle out of the victim‘s house. That testimony, if credited by the judge below, would be ample basis to support his conclusion that the defendant was subject to sentencing under the Graves Act. Insofar as pertinent, that statute reads:
“A person who has been convicted ... of a crime under any of [the enumerated statutory sections] . .. who while in the course of committing ... the crime, including the immediate flight therefrom . .. was in possession of a firearm ... shall be sentenced to a term of imprisоnment by the court. The term of
imprisonment shall include the imposition of a minimum term ... during which the defendant shall be ineligible for parole.” [Emphasis added] N.J.S.A. 2C:43-6c .
However, the judge below appears not to have relied upon the testimony presented at the Graves Act hearing. At the conclusion of that hearing, he noted that at the separate trial of one of the defendant‘s accomplices, he had heard testimony of an accomplice and of the defendant. Referring to the testimony at that separate trial, the court stated:
The court is satisfied by more than the preponderance of the evidence thаt the defendant was aware of the stealing of the weapons at the time of the burglary of the [victim‘s] residence. My recollection of the testimony is that [the defendant] said that he saw [an accomplice] carrying the weapons out, and [the accomplice] testified that he saw [defendant] carrying the weapons out.
Regardless of which it was, certainly [defendant] knew that this was part of the theft that was committed at the residence.
Again, the court is satisfied concerning that situation by more than the preponderance of the evidence, and the Court holds that [defendant] falls within the purview of the Graves Act....
If the trial judge was implying that if the defendant saw an accomplice carrying weapons out from the scene of their crime, that fact, without more, would constitute the element of “possession” necessary to subject the defendant to Graves Act liability, we disagree. That an accomplice took and removed firearms during the course of burglarizing a residence does not by itself establish that defendant is subject to the Graves Act. A defendant is subject to the Graves Act if in the course of commission of one of the enumerated offenses, including flight from the scene where that offense has been committed, he is in actual possession of a firearm (State v. Des Marets, 92 N.J. 62 (1982)), if he is in constructive possession, that is, able practically immediately to obtain actual possession (State v. Stewart, 96 N.J. 596 (1984)), or if he is an accomplice in an other‘s physical possession of a firearm (State v. White, 98 N.J. 122 (1984)).
In White, the Supreme Court said:
It is possible for an accomplice to be guilty of robbery and for his compatriot to be guilty оf armed robbery.... However, if the accomplice, though found guilty only of robbery, knew or had reason to know before the crime was committed that his partner would possess or use a firearm while the crime was
being committed, or during the immediate flight thereafter, the trial court should apply the Graves Act. If the accomplice did not know or have reason to know beforehand that his partner would possess or use a firearm during those periods, then the Graves Act would be inapplicable. The deterrent effect — the raison d‘etre — of the Graves Act is preserved. [Id. at 131.]
The weapons which figure in this case were unexpectedly found by the burglars at the scene of their crime. Therefore, if that language is applied literally, defendant in this case would not be subject to the Graves Act because he “did not know or have reason to know beforehand that his partner would possess ... a firearm....” However, for reasons which we shall explain, we do not think that the quoted language should be applied literally to the facts of this case.
In State v. Weeks, 107 N.J. 396 (1987), a case which explains the requisites of accomplice liability, the court reversed the armed robbery conviction of a defendant who was the “wheel man” in an armed robbery of a bakery. The jury was instructed as follows:
.... if you find beyond a reasonable doubt thаt the robber committed the crime of robbery and was armed with a deadly weapon or threatened the immediate use of a deadly weapon at the time of the commission of the robbery, then the defendant could be guilty of robbery in the first degree if you find beyond a reasonable doubt that he was an accоmplice or an aider or abettor in that robbery....
....
If you find that the defendant William Weeks willfully and knowingly aided, agreed to aid or attempted to aid another person in the commission of a robbery, then you must consider him a principal and equally guilty. [107 N.J. at 405]
Holding that those instructions were “plain error,” the court said, “... what we find troubling is thе fact that the jury may not have known that an essential element of the accomplice liability charged is that the accomplice share the purpose to commit an armed robbery.” [Ibid. Emphasis in the original.] The instruction was defective, the court held, because it “did not clearly require the jury to find that defendant had shared the purpose to cоmmit a robbery with a weapon.” [Ibid. Emphasis in the original.]
The drafters of the Model Penal Code (MPC) originally presented a tentative formulation of accomplice liability premised on the culpable mental state of knowledge [footnote omitted] as the sufficient predicate for establishing the liability of the accessory.... This tentative formulation was rejected, and the MPC now specifically requires that the accomplice have the ‘purpose of promoting or facilitating the commission of the offense’ of which the principal was convicted ... The language in
N.J.S.A. 2C:2-6c(1) [the accomplice liability provision of the N.J. statute] is identical. [Id. at 402]
In a footnote, the court provides the following elaboration:
Examples were given by the MPC commentators of situations where guilty knowledge was deemed insufficient to warrant congruent liability: Farm boy clears the ground for setting up a still, knowing that the venture is illicit; a landlord rents with knowledge that the premises will be used to establish a house of ill repute. [Id. at 402-403, fn.]
In the light of that emphasis on purpose in contradistinction to mere knowledge as a prerequisite of accomplice liability, we conclude that the court was saying only that an accomplice‘s purpose to promote or facilitate the commission of the substantive offense of armed robbery may be inferred as a fact from the accomplice‘s participation in the crime after he “knew or had reason to know before the crime was committed that his partner would possess or use a firearm while the crime was being committed....” Weeks, 107 N.J. at 400; White, 98 N.J. at 131.
What is the significance for the instant case of the statement in White that “If the accomplice did not know or have reason to know beforehand that his partner would possess or use a firearm during those periods, then the Graves Act would be inapplicable.“? [State v. White, supra. at p. 131. Emphasis added.] The offense of unarmed burglary to which defendant pleaded guilty wаs complete on his entry into the victim‘s house with the intent to commit theft.
In the factual context of this case, where “possession” of a firearm upon which Graves Act liability is based consists solely in the fact that the defendant‘s partner unexpectedly found a weapon in the house which they were burglarizing and carried it away, whether or not defendant is vicariously liable for having “possessed” a firearm depends upon whether he was “an accomplice” to the carrying away of the weapon which was unexpectedly found. In accordance with the teaching of White and Weeks, in order for the defendant to be an accomplice in that enterprise, he must be found to have had the purpose of promoting or facilitating the removal of the weapon. Proof of that purpose might include evidence that he knew once the weapon had been discovered that his partner intended to carry it away, but defendant‘s admission that he saw his confederate removing a weapon, without proof that he aided or fаcilitated the removal of the weapon, or shared his partner‘s purpose to do so, would not be sufficient.1
Moreover, although the finding of a requisite element of a Graves Act offense may be based upon proof which would not be admissible in evidence at the defendant‘s trial (State v. Stewart, 96 N.J. 596, 606 (1984)), such a finding may not be based upon testimony of a witness at a trial to which the Graves Act defendant was not a party and whom he had no opportunity to cross-examine.
The case is remanded to the trial court for resentencing. We do not retain jurisdiction.