NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5154-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCUS K. PERKINS,
Defendant-Appellant. ______________________________
Argued January 7, 2018 – Decided January 25, 2019
Before Judges Sabatino and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-08-2926.
Michael T. Denny, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Michael T. Denny, of counsel and on the brief).
Jason Magid, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Jason Magid, of counsel and on the brief).
PER CURIAM This direct appeal from a criminal conviction stems from the prosecution
of defendant Marcus Perkins for felony murder, murder, robbery, and various
other crimes. The case was previously described briefly in our 2017 published
opinion addressing procedural issues. See State v. Perkins, 449 N.J. Super. 309
(App. Div. 2017). That earlier appeal involved the trial court's denial of
defendant's petition for post-conviction relief ("PCR") based on his former
counsel's failure to file a timely direct appeal from his judgment of conviction.
With the State's acquiescence, we reversed the PCR denial and granted
defendant an opportunity to file as within time a direct appeal. Id. at 312-13.
That anticipated direct appeal is now before us.
Defendant raises these two points in his brief on appeal:
POINT I
THE JUDGE ERRED IN GIVING COPIES TO THE JURY OF THE LISTENING AIDS OF DEFENDANT'S POLICE INTERROGATIONS DURING DELIBERATIONS, GIVING THE JURY LICENSE TO PURUSE [SIC] TESTIMONIAL NON- EVIDENTIARY MATERIAL AT THEIR LEISURE, OUTSIDE THE PRESENCE OF COUNSEL, AND WITHOUT THE SUPERVISION OF THE COURT.
A. The listening aids are not exhibits received in evidence and should not have been given to the jury.
A-5154-16T1 2 B. Allowing the jury to take the listening aids into the jury room violated Perkins' constitutional right to a fair trial.
POINT II
THE TRIAL COURT'S CHARGE ON FELONY MURDER WAS INCORRECT, AND ITS CHARGES ON MURDER, AGGRAVATED MANSLAUGHTER, RECKLESS MANSLAUGHTER, AND THE ATTENDANT THEORIES OF ACCOMPLICE AND VICARIOUS LIABILITY AS APPLIED TO THOSE CRIMES AS WELL AS FELONY MURDER AND ROBBERY WAS MANIFESTLY CONFUSING, AND IMPROPERLY INSTRUCTED THE JURY THAT IT COULD CONVICT PERKINS WITHOUT UNANIMITY AMONG COUNTS. (not raised below)
A. The court's instruction on felony murder was incorrect, and invited the jury to find Perkins guilty of that crime only if they first found him guilty of murder, aggravated manslaughter, or reckless manslaughter.
B. The augmented unanimity charge was confusing, and comingled the consideration of guilt on three separate counts with the three different theories of liability advanced by the State.
Having carefully considered these points, we affirm the judgment of
conviction for the reasons we shall amplify in this opinion. In essence, although
we agree with defendant that, preferably, (1) the "listening aid" transcripts of
defendant's statements should not have been supplied to the deliberating jurors,
A-5154-16T1 3 and (2) aspects of the jury charge could have been clearer, those shortcomings
do not rise to a level "clearly capable of producing an unjust result." R. 2:10-2.
I.
The State's proofs at trial, including testimony from eleven witnesses,
established the following sequence of key events:
On Friday, December 2, 2005, around 11:00 a.m., Vincent Latta
("Vincent") was reported missing by his wife, April Latta ("April"), 1 who
subsequently became the codefendant in this case. Law enforcement personnel
responded to the Lattas' home in the City of Camden.
Police Officer Gabriel Camacho of the City's police department testified
that he spoke with April upon his arrival. She told him Vincent had left around
8:45 a.m. that morning to cash a check, withdraw money from the bank, and
pick up a breakfast sausage at a local supermarket. According to Officer
Camacho, April told him that, around 10:45 a.m., she had looked outside the
window and saw the garage door open.
April showed Officer Camacho the garage. The garage door was ajar, and
there was a supermarket bag containing a breakfast sausage roll and a receipt
1 We shall use the Lattas' first names to distinguish them from each other. We intend no disrespect in doing so.
A-5154-16T1 4 showing the roll had been purchased that day at 9:26 a.m. Officer Camacho
noticed the garage had some items in disarray, particularly two refrigerators
which were out of position. He also noted droplets of blood on lawn tools, and
marks of blood on the garage door and on the garage floor.
Between 4:15 and 4:30 p.m. that same day, police officers found Vincent's
car parked at South 9th Street and Liberty Street in Camden. Officers found the
dead body of Vincent in the trunk of the car, along with a bloodstained rope.
Based on these discoveries, the investigation changed from a missing person's
investigation to a homicide investigation.
The State's case at trial primarily rested on incriminating statements given
by three persons: defendant, codefendant April, and defendant's girlfriend.
There was no physical evidence specifically linking defendant with the crime.
April's Narrative
April testified at trial as a State witness, pursuant to a plea agreement in
which she pled guilty to first-degree aggravated manslaughter and first-degree
robbery, exposing her to a maximum twenty-two-year sentence. April testified
that she and defendant planned to rob Vincent, specifically agreeing for
defendant to be present in the garage when Vincent returned from his errands.
According to April, their plan was that defendant would knock Vincent out, take
A-5154-16T1 5 his money, put Vincent in his car, and park it somewhere so when Vincent woke
up he would be robbed, and "that was it." April did not acknowledge she was
present when Vincent was killed.
The Girlfriend's Narrative
Defendant's girlfriend's testimony for the State described his movements
on the day of Vincent's death. She also recounted that defendant told her on
Saturday, December 3, 2005, about having robbed Vincent and about Vincent's
death.
Impeachment
The defense tried to undermine the credibility of both April and
defendant's girlfriend. As to April, the defense's cross-examination included
questions about: her prior convictions for welfare fraud and petty larceny, her
guilty plea to aggravated manslaughter and robbery predicated on testifying
truthfully at defendant's trial, and a letter that April wrote to defendant on
February 11, 2006, stating that she was the one who had killed Vincent. As to
defendant's girlfriend, the defense's cross-examination included questions
about: whether she knew defendant was cheating on her, letters she had written
to defendant while he was in jail, and whether she thought she was a suspect.
A-5154-16T1 6 Defendant gave two recorded statements 2 to the police during their
investigation: the first on December 3, 2005, and the second on December 5,
2005. In his first statement, defendant denied being present when the victim
was robbed and killed and denied taking part in the robbery. In his second
statement, defendant admitted to taking part in a robbery of Vincent, but denied
killing him, claiming that April had strangled Vincent to death without his
assistance.
Defendant's First Recorded Statement
More specifically, in defendant's first recorded audio statement to police,
he described the events as follows. Defendant met April and Vincent in the
spring of 2004 when they moved into the same complex where defendant's
mother resided. The Lattas thereafter moved to a house in Camden near
defendant's residence. April's son and his girlfriend lived there as well.
Defendant purchased large amounts of crack cocaine for the Lattas. He
became friends with Vincent. He also developed a sexual relationship with
April.
2 Defendant does not contest on appeal the police's compliance with Miranda v. Arizona, 384 U.S. 436 (1966), or the admission of the recorded statements. A-5154-16T1 7 According to defendant, April confided in him about how Vincent, as well
as April's son, were controlling her and that she "wanted out." April told
defendant she had removed cash from Vincent's account, and that Vincent
physically abused her for doing so. She also claimed Vincent had accused her
of trying to rob him. At one point, April reported Vincent's conduct to the police
and obtained a restraining order. Vincent moved in temporarily with his
daughter, but returned after a judge dismissed the restraining order. 3
Defendant told the police he would go over to April's place for coffee, and
his girlfriend would occasionally go there as well. Defendant kept clothes and
other things in the attic space above the Lattas' garage, but he did not have a
key.
According to defendant, about a month and a half before the victim's
death, April approached him, at first "jokingly," about killing her husband. She
asked defendant questions, put "extra stuff" in Vincent's insulin needle, and tried
to make him overdose on drugs. Defendant told the police April wanted him to
"do it," but he allegedly turned her down numerous times. April stepped up this
pressure on defendant about a week before the victim's death. According to
3 Because these details of the previous domestic violence allegations emerged at the public criminal jury trial, we have no need to omit them from the facts or to seal the appellate record. A-5154-16T1 8 defendant, she threatened to tell defendant's mother about his drug use and to
tell defendant's wife, who lived in California, about his extramarital affairs.
On Thursday, the day before Vincent's death, April told defendant that
Vincent would be carrying between $1,750 and $2,000, because he had
withdrawn money from the bank for rent and other bills, as well as having
received money from April's son's girlfriend for rent.
Defendant initially told the police that on Friday, the day of Vincent's
death, he awoke between 9:00 and 9:30 a.m., and took his puppies for a walk
around 9:30 a.m. Defendant's girlfriend was sleeping when he left the house.
When he returned from walking the puppies, his girlfriend was gone.
Defendant stated he went to April's house around 10:33 a.m. April, her
son's girlfriend, and defendant's girlfriend were at the home when he got there.
While alone with April in the kitchen, April told defendant she was waiting for
Vincent, who had gone to the bank and then to get a breakfast sausage.
Defendant then walked his girlfriend partway to her place of work.
Defendant claimed he then took his puppies to get vaccinated. While returning,
defendant saw police at April's home and talked to April's son's girlfriend about
what was happening. Defendant left and went to babysit his nieces and nephews.
A-5154-16T1 9 That evening, defendant went to various places, "trying to get [his] thoughts
together."
After allegedly wandering around all night, defendant ended up back at
his girlfriend's house and then went over the April's house the morning of
Saturday, December 3. Defendant spoke with April's son, who took him into
the garage. According to defendant, the son stated that April had confessed that
she had arranged for someone to kill Vincent. The son told him that Vincent's
body was found in a trunk, and that he "might have been shot or strangled or
something."
Defendant claimed he was angry at himself because he could have
prevented Vincent's death if he had reported April's plans. He maintained in his
first police statement that he was not there when Vincent was killed, and only
knew of possible individuals who could have done it. He also claimed April did
not ask him to rob Vincent.
Defendant's Second Recorded Statement
In defendant's second audio-recorded statement to the police, he
substantially revised his narrative. This time, defendant admitted that he took
part in robbing, but not killing, Vincent.
A-5154-16T1 10 Defendant reiterated to the police that April had been joking about
different ways of killing Vincent for a "couple of months." A month before
Vincent's death, April obtained a restraining order, which kept Vincent away
from the house, but a judge dismissed the order and he returned.
According to defendant's second police statement, he and another
unidentified person were supposed to take the money from Vincent, but the other
person backed out. Defendant said he thought this was his "way out" of robbing
Vincent, but he claimed April was "relentless" in pursuing whatever she wanted.
According to defendant, April threatened, among other things, to tell his mother
about his drug use.
Defendant's second statement markedly differed from his first one in
describing the events that occurred on the day of Vincent's death. As recounted
by defendant in this revised narrative, April came to his residence on the
morning of the killing, and told him Vincent had gone to the bank. Around 9:00
a.m., defendant went to the Lattas' house. He waited for Vincent outside the
garage. When defendant heard the garage door open, a car pull in, and the garage
door close, he went into the garage and startled Vincent. Vincent fell back into
the refrigerator. As defendant tried to grab Vincent, Vincent turned to run,
grabbed his chest, and fell head-first into the garage door.
A-5154-16T1 11 Defendant could see some blood "squirting" from the area around
Vincent's head and face when Vincent hit the door. While defendant was leaving
the garage, April came out of the house. She asked what happened and if
Vincent was dead. April stated Vincent "has to die," and she then went into the
garage.
According to defendant, when he went back into the garage, he saw that
April had a rope looped around Vincent's neck. He heard Vincent saying,
"you're killing me." Defendant admitted he did not leave. He explained, "I
guess it was still the fact of the money." Defendant claimed he "basically tuned
out" but heard gurgling and a hissing sound, as when a last breath leaves a
person's body. Defendant saw April take money from Vincent. Defendant
helped her load Vincent's body in the trunk of the car, and parked the car o n
South 9th Street and Liberty Street.
Defendant admitted he had gloves on during the incident. He claimed he
threw them away while he was walking back from dropping off the car.
Defendant then went looking for his girlfriend, who was at April's place.
Once there, defendant asked April for juice in order to get a chance to confront
her alone and see what had happened with the money. According to defendant,
A-5154-16T1 12 April tried to give him $700 to obtain drugs. He did not take the money and
left. He claimed he went on to do the things he normally would do that day.
Defendant stated that he thought his "days were numbered" when he saw
the police, because he knew April would tell the police about him.
Defendant claimed he did not tell anyone else about the crime. His
girlfriend asked him about it, and he responded he did not want to talk about it.
The Indictment, Trial, and The Jury Verdict
The indictment charged defendant and April with first-degree murder,
N.J.S.A. 2C:11-3(a)(1), -3(a)(2) (count one); first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1
(count three); third-degree possession of a weapon for unlawful purpose,
N.J.S.A. 2C:39-4(d) (count four); fourth-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(d) (count five); third-degree hindering apprehension
or prosecution, N.J.S.A. 2C:29-3(b)(1) (count six); and conspiracy, N.J.S.A.
2C:5-2 (count seven).
The case was tried over six days in October 2008. Defendant did not
testify, and he did not present any witnesses. As part of the State's proofs, the
jury heard both of defendant's recorded statements to the police. They were
A-5154-16T1 13 supplied to the jurors in the courtroom with transcripts of the recorded
statements when those statements were played.
Following their deliberations, the jurors found defendant not guilty of
first-degree murder on count one, but did find him guilty on that count of the
lesser-included offense of first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a). The jury also found defendant guilty on count two of first-degree
felony murder. On count three, the jury found defendant guilty of robbery,
although their verdict form reflects they found the State had not proven that
during the course of the robbery defendant had been armed with, used, or
threatened the immediate use of a deadly weapon. 4 The jury found defendant
not guilty on count four, possession of a weapon for an unlawful purpose, but
guilty on the remaining counts five, six and seven. On count seven, the jury
clarified on the verdict form that its conspiracy finding was based on a
conspiracy to commit robbery, rather than to commit murder or felony murder.
4 Given the nature of the trial proofs and the structure of the verdict form, this specific finding on the form signifies that defendant was only found guilty of second-degree, not first-degree, robbery. The judgment of conviction, however, incorrectly reflects a disposition on this count as first-degree robbery. During oral argument on the appeal, the State agreed that the judgment of conviction should be amended on the robbery count to be consistent with the verdict. That change is of little practical consequence, since the robbery conviction merged at sentencing, and either first-degree or second-degree robbery can support a felony murder offense when, as here, the robbery victim is killed. A-5154-16T1 14 The trial court imposed upon defendant an aggregate sentence of thirty-
nine years. For count two, felony murder, defendant was sentenced to serve a
custodial term of thirty-five years, subject to the parole ineligibility terms of the
No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, with a five-year parole
supervision period upon parole. For count five, unlawful possession of a
weapon, defendant was sentenced to a custodial term of eighteen months, nine
months to be served without parole, to run concurrent to count two. For count
six, hindering apprehension or prosecution, defendant was sentenced to four
years, twenty-four months without parole, to run consecutive to the sentences
for count two and five. Counts one, three, and seven merged with count two for
the purposes of sentencing. 5
II.
A.
Defendant's first argument is that the trial court committed reversible error
when it supplied the jurors, at their request and over his trial attorney's objection,
with so-called "listening aids" in the jury room. The aids consisted of transcripts
of the audiotapes of defendant's two statements to the police.
5 Defendant does not challenge his sentence on appeal. A-5154-16T1 15 Defendant maintains it was unduly prejudicial to him for the jurors to have
in their possession the two transcripts, which were not exhibits in evidence. He
speculates the jurors' ready access to the transcripts might have caused them to
afford too much weight to his self-incriminating statements. We are
unpersuaded this requires reversal and a new trial.
We acknowledge Rule 1:8-8(a) states that the jury "may take into the jury
room the exhibits received in evidence[.]" (Emphasis added). "[I]nadmissible
materials submitted to the jury by the court may result in error." Pressler &
Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 1:8-8 (2019); see Dunn v.
Praiss, 256 N.J. Super. 180, 199 (App. Div. 1992). However, our courts have
recognized the provision of such non-admitted materials does not necessarily
constitute error. Pressler & Verniero, cmt. 1.1 on R. 1:8-8 (citing State v. W.B.,
205 N.J. 588, 622-23 (2011) (finding the playback, in open court, of a videotape
not admitted into evidence did not constitute an abuse of discretion, and noting
that defense counsel may have invited the error)); State v. Watson, 261 N.J.
Super. 169, 181 (App. Div. 1992) (finding the presence of a dictionary in the
jury room, which the judge removed once she became aware of it and instructed
the jury not to refer to it but to rely instead on her charge, was incapable of
producing an unjust result).
A-5154-16T1 16 The admission of the non-evidential materials into the jury room in this
case therefore is not automatic reversible error. We must instead consider
whether the error was "clearly capable of producing an unjust result." R. 2:10-
2.
It is significant that for many years before this case was tried in October
2008, case law permitted tape recordings of conversations, and transcripts of
those conversations, to be supplied to jurors to listen to in the jury room during
their deliberations. See State v. DeBellis, 174 N.J. Super. 195, 199-200 (App.
Div. 1980) (noting that trial judges have the discretion to allow jurors to access
such transcripts "as an aid for understanding a tape recording"). In June 2008,
the Supreme Court in State v. Burr, 195 N.J. 119 (2008), changed the
permissible procedures. To avoid the risk of undue prejudice, Burr now
prescribes that any playback of videotaped out-of-court statements must occur
in open court and not in the jury room. Id. at 134-35. Juries also cannot have
unfettered access to audio-recorded statements. State v. A.R., 213 N.J. 542, 561
(2013) ("[U]nder no circumstances shall the jury have unfettered access to
audio- or video-recorded statements in the jury room during deliberations.").
We do not fault the trial judge in this case for not adhering to the Supreme
Court's very recent change of practice announced only a few months earlier in
A-5154-16T1 17 Burr. There is no indication in the record that either trial attorney called the
judge's attention to the recent Burr opinion.
Moreover, defendant's trial attorney did not oppose the jurors' use of the
recordings in the jury room. In fact, defense counsel in her closing argument
urged the jurors to listen to certain parts of the recorded statements. There is
also no claim that the transcripts are inaccurate.
The judge issued a careful limiting instruction explaining to the jurors that
the transcripts were not evidence, and that their own perceptions of the actual
recording should control. We presume that instruction was heeded. State v.
Burns, 192 N.J. 312, 335 (2007).
Given these circumstances, we detect no reversible error stemming from
the trial court's decision to accede to the jurors' request and provide them with
the listening aids. The error was not clearly capable of producing an unjust
result.
B.
The other issue raised by defendant concerns the wording of portions of
the jury charge. In particular, defendant points out the charge issued on felony
murder contained a passage erroneously indicating that the jury would need to
find him guilty of murder, aggravated manslaughter, or reckless manslaught er
A-5154-16T1 18 (i.e., homicide offenses) in order to find him guilty of felony murder. Defendant
further argues that the court provided erroneous and confusing instructions on
accomplice and vicarious liability, both initially and later when the deliberating
jurors requested clarification of those concepts.
None of these alleged errors in the jury instructions were objected to by
defendant's trial counsel. Consequently, we consider these arguments under the
"plain error" standard of appellate review. R. 2:10-2; see State v. Macon, 57
N.J. 325, 336 (1971).
To be sure, we recognize that "[a]ppropriate and proper charges to a jury
are essential for a fair trial," State v. Green, 86 N.J. 281, 287 (1981), and that
the trial court has an "independent duty . . . to ensure that the jurors receive
accurate instructions on the law as it pertains to the facts and issues of each
case[.]" State v. Reddish, 181 N.J. 553, 613 (2004). Even so, we are
unpersuaded that these unobjected-to flaws in the jury charges, identified for the
first time in defendant's appellate brief, warrant reversal and a new trial.
The flaw in the charge concerning the elements of felony murder does not
reflect material prejudice likely to have harmed defendant in the jury
deliberations. If anything, the charge's mistaken statement that the jury would
need to find defendant guilty of murder or manslaughter in order to find him
A-5154-16T1 19 guilty of felony murder imposed, in effect, a greater burden on the prosecution.
The crime of robbery alternatively can supply the predicate offense to support a
felony murder conviction. N.J.S.A. 2C:11-3(a)(3); State v. Gonzalez, 318 N.J.
Super. 527, 536 (App. Div. 1999).
The State's proofs strongly established that defendant took part in a
robbery of the victim. Indeed, defendant's second statement to the police
admitted as much. There also is considerable evidence, in addition to
defendant's own words, that the victim died during the course of that robbery.
Despite the court's mistaken explanation, the verdict form question on
count two (felony murder) clearly asked the jurors – not about a predicate
offense of homicide – but whether defendant, acting either alone or with another
person, caused the death of the victim while engaged in the commission or
attempted commission, or flight from, the "crime of [r]obbery." The jury found
defendant guilty of felony murder on this express basis and also found him guilty
of robbery in count three.
It is sheer speculation to believe, as defendant now argues, that the jurors
may have improperly found him guilty of aggravated manslaughter simply to
support a felony murder conviction. Looking, as we must, at the charge and
verdict form the judge reviewed with the jurors during the charge as a whole,
A-5154-16T1 20 see State v. Simon, 161 N.J. 416, 477 (1999), there is no doubt that the jurors
understood that robbery was the predicate offense upon which their verdict's
felony murder conviction rested.
We likewise find no basis for relief in defendant's separate claim that the
jury charges on vicarious liability and accomplice liability were confusing and
must have produced an unsound verdict. Although we recognize the deliberating
jurors submitted notes to the court expressing some confusion about these
concepts, and were accordingly re-instructed, we do not regard the court's
explanations of the concepts to be materially deficient. Defendant claims that
the charges invited the jurors to rest their verdicts on non-unanimous grounds.
We disagree.
The court ultimately explained the conceptual differences between
liability for personal conduct, accomplice liability, and vicarious liability
sufficiently, and emphasized that "all" of the jurors had to agree on which one
of these three alternative theories, if any, supported defendant's guilt in order to
convict him. Although perhaps portions of the charge could have been more
clearly or consistently expressed, the flaws do not rise to reversible error.
A-5154-16T1 21 The balance of defendant's criticisms of the jury instructions, to the extent
we have not already discussed them, lack sufficient merit to warrant discussion.
R. 2:11-3(e)(2).
Affirmed.
A-5154-16T1 22