NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1614-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYLEEK A. LEWIS,
Defendant-Appellant. _______________________
Submitted December 5, 2018 - Decided January 28, 2019 Remanded by the Supreme Court June 23, 2020 Resubmitted June 23, 2020 - Decided July 28, 2020
Before Judges Koblitz, Ostrer and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 14-08- 0877.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael James Confusione, Designated Counsel, on the brief).
Scott A. Coffina, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
PER CURIAM
Our Supreme Court in State v. Greene, ___ N.J. ___, ___ (2020) remanded
this matter on June 23, 2020 for our consideration of the following five issues
raised by defendant Tyleek A. Lewis through counsel:
POINT II: THE PROSECUTOR WENT BEYOND FAIR COMMENT ON THE EVIDENCE IN SUMMATION.
POINT III: THE TRIAL COURT ERRED IN ADMITTING THE WAWA VIDEOTAPE INTO EVIDENCE.
POINT IV: THE TRIAL COURT INFRINGED DEFENDANT'S RIGHT TO DISCOVERY AND CROSS-EXAMINATION.
POINT V: THE TRIAL COURT ERRED IN DENYING A POST-VERDICT INTERVIEW OF A COMPROMISED JUROR.
POINT VI: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
We also consider the single issue defendant argues in his pro se
supplemental brief: 1
POINT I: IT WAS REVERSIBLE ERROR FOR THE JUDGE TO FAIL TO INSTRUCT THE JURY ON ACCOMPLICE LIABILITY, ESPECIALLY IN
1 We corrected minor typographical errors. A-1614-15T1 2 LIGHT OF THE JURY'S QUESTION SIGNALING ITS CONFUSION.
We incorporate the facts as set forth by the Supreme Court. Greene, ___
N.J. at ___ (slip op. at 5-8). Defendant was convicted, after judicial merger, of
one count of felony murder by participating in the murder of Edward Baker
during the commission of a robbery and burglary, N.J.S.A. 2C:11-3(a)(3). He
was sentenced simultaneously with his co-defendant Carey R. Greene to thirty-
five years in prison with a thirty-year period of parole ineligibility subject to the
requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We
now affirm defendant's conviction and remand only to correct the judgment of
conviction.
I. Prosecutor's Summation.
Defendant argues that the assistant prosecutor's repeated statements to the
jury that a trial is a "search for the truth" deprived him of a fair trial. Defendant
also argues that the assistant prosecutor's incorrect statement during summation
that a pendant had been taken from the victim without an immediate curative
instruction constitutes reversible error. We disagree.
"The State's opening statement should be 'limited to the "facts [the
prosecutor] intends in good faith to prove by competent evidence." '" Greene,
___ N.J. at ___ (slip op. at 21) (alteration in original) (quoting State v.
A-1614-15T1 3 Wakefield, 190 N.J. 397, 442 (2007)). The opening statement is "intended to
serve as 'an outline' or a 'roadmap' or a 'general recital' of the case the State
intends to present." Ibid. (quoting State v. Walden, 370 N.J. Super. 549, 558
(App. Div. 2004)). "[T]he court must patrol the boundaries of propriety [of a
prosecutor's opening statement] to ensure that [a] defendant's right to a fair trial
is not compromised." Id. at ___ (slip op. at 22) (second and third alterations in
original) (quoting State v. Timmendequas, 161 N.J. 515, 577 (1999)).
During summation, a prosecutor is limited to "commenting upon the
evidence and the reasonable inferences to be drawn therefrom," however, the
presentation is allowed to be forceful and vigorous. State v. Pindale, 249 N.J.
Super. 266, 285 (App. Div. 1991). A prosecutor is given leeway, but comments
must be reasonably related to the evidence adduced at trial. State v. Frost, 158
N.J. 76, 82 (1999). A prosecutor can make inferences based upon the evidence
but cannot go beyond the facts of the case. State v. R.B., 183 N.J. 308, 330
(2005). "[A] determination as to whether a prosecutor's comments had the
capacity to deprive defendant of a fair trial must be made 'within the context of
the trial as a whole.'" State v. McNeil-Thomas, 238 N.J. 256, 276 (2019)
(quoting State v. Feaster, 156 N.J. 1, 64 (1998)).
During opening statements, the prosecutor stated:
A-1614-15T1 4 And I submit to you, ladies and gentlemen, that through the expanse of this evidence that's going to be presented to you over the course of the next few weeks, you are going to also see something else and it's what I call the thread of truth. You're going to see the thread of truth through each piece of evidence and each witness that you hear from. And this is very important because it has been said that a trial, the reason why we're here, is a search for the truth.
Defense counsel objected, citing to State v. Love, 245 N.J. Super. 195,
198-99 (App. Div. 1991) (analyzing whether the jury charge violated defendant's
due process rights because it diluted the State's burden of proof), but the
objection was overruled by the court. During the remainder of his opening
statement, the prosecutor referred to "truth" nine more times. At the conclusion
of his opening statement, he stated: "I just ask you, ladies and gentlemen, listen
carefully, search for that thread of truth throughout the entire State's case."
During summation, the assistant prosecutor again referred to "truth":
The reason why we are here, and I told you this in my opening, this trial is a search, and it's a search for the truth. And if you recall during my opening, I called it the thread of truth. And that's what I want to talk to you about. What is the truth?
Because ultimately, you as triers of these facts have to, have to make a decision on what is the truth. How do we get to that truth? How do we know what the truth is?
A-1614-15T1 5 He said "truth" many more times in his summation. However, he also
stated in summation: "And basically what you need to know before we look for
this search for the truth of what happened on that night, you need to know that
. . . the State is required to prove each of these elements beyond a reasonable
doubt."
After the prosecutor's summation, defense counsel renewed the objection
to the use of the word "truth," arguing it lessened the State's burden. He
requested a curative instruction. The trial court ruled that because the State
explained that it was required to prove beyond a reasonable doubt all elements
of the crimes, a curative instruction was not needed. It held that the assistant
prosecutor's reference to "truth" did not dilute the State's burden and that the
jury would be given full instructions.
Pursuant to the model jury charges, the court instructed the jury that the
State must prove each element of every crime charged beyond a reasonable
doubt. See Model Jury Charges (Criminal), "Felony Murder – Non-Slayer
Participant (N.J.S.A. 2C:11-3(a)(3))" (rev. Mar. 22, 2004); Model Jury Charges
(Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-1)" (rev. May 10,
2010); Model Jury Charges (Criminal), "Burglary in the Second Degree
(N.J.S.A. 2C:18-2(b))" (rev. Apr. 12, 2010).
A-1614-15T1 6 In cases where there have been references to the "truth" by the trial court,
our Supreme Court has not reversed. For example, in State v. Purnell, 126 N.J.
518, 544 (1992), the trial court advised the jury to "search for the truth" as part
of the jury instructions. It also informed the jury of the State's burden to prove
its case beyond a reasonable doubt. Ibid. While the Court was concerned
regarding the court's use of the term "search for truth" because it could dilute
the State's burden of proof, the Court affirmed because the jury was correctly
instructed about the presumption of innocence and the State's burden of proof.
Id. at 545.
In Love, we rejected an argument by the defendant that the court's
comment during jury instructions that it was tasked with ascertaining "the truth
on the evidence" was improper. Love, 245 N.J. Super. at 198-99; see also State
v. Medina, 147 N.J. 43, 54 (1996) (rejecting defendant's argument that the
State's burden was diluted because the court instructed the jury to "search for
truth"). In State v. Hunt, 115 N.J. 330, 372-73 (1989), the Court rejected the
defendant's argument, similar to the argument made here, that the State's burden
was diluted because the prosecutor told the jury that it had a duty to determine
"where the truth rests." Although the prosecutor repeated the "search for truth"
A-1614-15T1 7 phrase many times, the trial court corrected any misunderstanding by clearly
instructing the jury about the burden of proof.
Defendant also argues that the prosecutor misled the jury during
summation by claiming that a pendant had been taken from the victim, and that
the court failed to issue a timely curative instruction.
During summation the assistant prosecutor stated:
Let's talk about this Jesus pendant. What's the significance of that? In and of itself, not really too much significance. But it's the broken clasp, it's the broken clasp that has the significance here. Doesn't it? Isn't that indicative of some sort of struggle?
[Counsel for defendant] tried to bring out on his cross- examination well, maybe it was the EMS guys cutting, cutting open [the victim's] shirt. But the chain, where's the chain that that pendant hung on? I'll tell you where it's not, it's not in the house. It's gone.
Defendant's counsel requested a curative instruction and asked that the
instruction be provided on the same day that the false statement was made. The
court provided the instruction the next time the jury convened, two days later.
During the jury charge, the court gave a remedial instruction:
Further, the prosecutor during summations referenced the Jesus pendant and clasp found at the crime scene. The prosecutor asked "where's the chain" and further stated that the chain was "not in the house." Any inference that the chain was stolen by the defendants must be ignored by you in your deliberations. The
A-1614-15T1 8 chain was recovered from the body at the autopsy and is in the possession of the prosecutor's office.
During summation, a prosecutor should not make inaccurate legal or
factual assertions and is duty-bound to confine remarks to the facts adduced at
trial. Frost, 158 N.J. at 85. When evaluating a claim of prosecutorial
misconduct, a reviewing court should first determine if the prosecutor
committed misconduct and then evaluate whether the misconduct requires a new
trial. Wakefield, 190 N.J. at 446.
The assistant prosecutor misstated a fact when he said that the chain was
missing. The comment was inaccurate, but did not have the effect of diverting
the jury's attention from the facts before it or inflaming the jury. The court
provided a complete and effective curative instruction regarding the prosecutor's
misstatement. The court clearly informed the jury that the chain was in fact
recovered from the victim's body and was in the possession of the prosecutor's
office. We assume that jurors follow instructions. State v. Miller, 205 N.J. 109,
126 (2011).
The assistant prosecutor made the incorrect statement at the end of the day
on Wednesday and the court provided the curative instruction the next time that
the court met with the jury, on Friday. It is true that curative instructions should
A-1614-15T1 9 be provided "without delay," State v. Vallejo, 198 N.J. 122, 134 (2009), but we
do not view the instruction as unduly delayed.
Prosecutorial misconduct "does not warrant reversal unless it is 'so
egregious that it deprived the defendant of a fair trial.'" State v. Jackson, 211
N.J. 394, 409 (2012). Reversible error occurs when a prosecutor makes a
comment so prejudicial that it deprives a defendant of his or her right to a fair
trial. Id. at 437. The inaccurate statement here was not egregious. "A defendant
is entitled to a fair trial, but not a perfect one." Wakefield, 190 N.J. at 537
(quoting Lutwak v. United States, 344 U.S. 604, 619 (1953)).
II. Videotape.
Defendant contends the court erred when it admitted the Wawa
surveillance videotape into evidence. He claims the State failed to demonstrate
that the date and time stamp on the video were accurate and, also, failed to
explain who provided the video to the police and when.
The court conducted an authentication hearing outside the presence of the
jury. Heather Hearn, a senior security advisor at Wawa, testified that in 2010
Wawa recorded security footage on a VCR. At that time, the cameras and
equipment included a date stamp on the video. The store manager was
responsible for ensuring the date stamp was accurate and, aside from the store
A-1614-15T1 10 manager, no other employees could alter the date stamp. Hearn recognized the
video in the present case as a Wawa security video based on the color labels and
the information on the video.
Zachary Knauss, a shift manager at Wawa, testified that he worked at the
Westampton store in July 2010. He provided the surveillance video to
Westampton Township Police Officer Andrew Brewer at 3:39 a.m. on July 17,
2010. Brewer testified that he obtained the July 16, 2010 surveillance video
from the Wawa and turned it over to Detective Sergeant Roger Rogers at
headquarters.
The tape received from Brewer was placed into the Westampton Township
evidence depository. Only Rogers and one other detective had access to it. On
July 27, 2010, Rogers took the video from the evidence locker and gave it to
Patrolman Thomas Polite at police headquarters. Polite took the video and
secured it in his office. Polite testified that he reviewed the Wawa tape looking
for the hat and shoe recovered at the crime scene. He located individuals in the
Wawa video wearing those items.
Detective Timothy Horne, an evidence management custodian with the
Burlington County Prosecutor's Office, testified that his office received a video
tape from a Westampton police department detective. The video had a sticker
A-1614-15T1 11 on it, stating it was a surveillance video from Wawa. He placed it with the rest
of the evidence for this case in the evidence storage vault, which could only be
accessed by members of the evidence management unit. Evidence must be
signed in and out, and the location is secure.
The trial court found that the video was a Wawa surveillance tape from
July 16, 2010, from approximately 9:40 p.m. to 10:00 p.m. The court was
satisfied that the chain of custody and time stamping of the video had been
established in accordance with N.J.R.E. 901 and was admissible.
N.J.R.E. 901 states: "To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must present evidence sufficient
to support a finding that the item is what its proponent claims." Authentication
occurs when the court conducts a screening process to decide whether a
sufficient basis exists, leaving to the jury the final assessment as to whether the
item is actually authentic. Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, cmt. 1 on N.J.R.E. 901 (2020). "The rule does not require absolute
certainty or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App.
Div. 1999).
Properly authenticated videotapes are admissible. State v. Loftin, 287
N.J. Super. 76, 98 (App. Div. 1996). "[A] trial court's evidentiary rulings are
A-1614-15T1 12 entitled to deference absent a showing of an abuse of discretion, i.e., there has
been a clear error of judgment." State v. Nantambu, 221 N.J. 390, 402 (2015)
(alteration in original) (quoting State v. Harris, 209 N.J. 431, 439 (2012)).
Here, the court properly determined that the video was authenticated
under N.J.R.E. 901. The court heard testimony from Wawa employees and the
police demonstrating the chain of custody. The court personally viewed the tape
to confirm that it depicted the evening of July 16, 2010, based on the time stamp.
Where a surveillance camera films a crime, or the events leading up to or
following a crime, the authenticity foundation can be laid circumstantially. See
Loftin, 287 N.J. Super. at 98-99. "All that is required for authenticity is proof
that the matter is what its proponent claims." Id. at 99. The court did not abuse
its discretion in allowing the Wawa video into evidence.
III. Discovery.
Defendant argues that the court infringed on his right to obtain discovery
and cross-examine witnesses when it rejected his argument that the assistant
prosecutor failed to produce all investigatory discovery about the victim, Baker.
He contends that the assistant prosecutor did not provide discovery related to an
investigation of a drug dealer named Durrell Whitmore and drug activity at
Baker's home.
A-1614-15T1 13 The court independently reviewed the discovery that defendant requested
and found it unconnected to the murder. One reference in the Whitmore reports
referred to Baker's nickname "Dough Boy" and indicated that Baker was a friend
of Whitmore. Also, a reference was made to surveillance conducted at Baker's
home for a particular car. The court explained that these references were an
insufficient basis to justify turning over information connected to an
investigation of Whitmore.
A court's denial of a discovery request is reviewed under an abuse of
discretion standard. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010).
Defendant offers no support for his allegations that a third party was responsible
for Baker's death or that exculpatory evidence was presented in the reports.
Defendant's argument is based solely on conjecture. "[A]lthough defendants are
entitled to broad discovery under Rule 3:13-3, they are not entitled to turn the
discovery process into a fishing expedition." State v. Broom-Smith, 406 N.J.
Super. 228, 239 (App. Div. 2009). The court did not abuse its discretion in
denying defendant access to the Whitmore investigation.
IV. Post-Verdict Juror Interview.
Defendant argues that the court erred when it declined to grant his co-
defendant Greene's request for a post-verdict interview of a juror, necessitating
A-1614-15T1 14 a new trial. Greene's mother returned home after the verdict was rendered,
looked out her window, and saw juror six talking with the person who lived
across the street. She also believed that she may have observed the neighbor
dropping juror six off at the courthouse. Greene filed a motion to interview
juror six to determine why she did not disclose her relationship with Greene's
mother's neighbor.
Greene's attorney hired a private investigator who confirmed with the
neighbor that she was a close friend of juror six and did drive her to the
courthouse. Greene's attorney alleged that juror six's failure to disclose her
friendship affected whether counsel would have exercised a preemptory
challenge during jury selection. Greene was concerned that because his father
was "killed under untoward circumstances" and his mother had an arrest record,
the juror could have been exposed to this prejudicial information because
"people talk."
Greene's counsel conceded that she lacked any specific information that
the juror knew that Greene's mother lived in the same neighborhood. Greene's
investigator's report stated that the neighbor did not know any details about juror
six's case, the neighbor did not know the case involved her neighbor's son, and
the juror never discussed the case with her. In fact, according to the report, it
A-1614-15T1 15 was only after the verdict was rendered that the neighbor heard that Greene 's
mother was related to one of the men found guilty.
The court denied Greene's request for a post-verdict hearing regarding
juror six. It explained that granting such a request is an extraordinary measure.
The connections were "too speculative and too tangential for the [c]ourt to grant
an interview."
A criminal defendant is entitled to an impartial jury. State v. Papasavvas,
163 N.J. 565, 584 (2000). Asking a juror to return to court for an interview after
a verdict has been rendered and he or she has been discharged is an
"extraordinary procedure which should be invoked only upon a strong showing
that a litigant may have been harmed by jury misconduct." State v. Harris, 181
N.J. 391, 503 (2004) (quoting State v. Athorn, 46 N.J. 247, 250 (1966)).
"[I]t is virtually impossible to shield jurors from every contact or influence
that might theoretically affect their vote." Smith v. Phillips, 455 U.S. 209, 217
(1982). Instead, a defendant receives due process when a jury is capable and
willing to decide the case based solely upon the evidence presented at trial. Ibid.
A high bar is placed on a party seeking to interview a juror after the jury
has been discharged. State v. DiFrisco, 174 N.J. 195, 241 (2002). The high
standard is required to "prevent juror harassment and avoid chilling jury
A-1614-15T1 16 deliberations." Ibid. The trial court appropriately chose not to call back juror
six for an interview based on the evidence that Greene's mother's neighbor was
a friend, especially given that the juror was apparently unaware of the
connection until after the verdict was rendered. Significantly, defendant was
not involved with the application to interview the juror, nor implicated in any
information juror six might have had.
V. Sentence.
We review a sentence using the abuse of discretion standard of review.
State v. Roth, 95 N.J. 334, 363-64 (1984). The sentencing court is required to
qualitatively weigh the aggravating and mitigating factors. State v. Case, 220
N.J. 49, 65 (2014). The weight given to each is a "function of its gravity in
relation to the severity of the offense." Roth, 95 N.J. at 368.
A reviewing court is limited to determining: if the sentencing guidelines
were followed; if there was competent credible evidence to support the findings
that were the basis for the sentence; and if the trial court came to an unreasonable
conclusion. State v. Natale, 184 N.J. 458, 489 (2005). It can vacate the sentence
if it "shocks the judicial conscience." State v. Cassady, 198 N.J. 165, 181
(2009). The sentencing court is given wide discretion if the sentence imposed
is within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005).
A-1614-15T1 17 On September 21, 2015, the court sentenced defendant during the same
hearing and at the same time as Greene. The court allowed Baker's family and
Greene's mother to speak. Defendant's mother spoke on his behalf. Defendant
maintained he did not kill Baker. The court reviewed the essential facts of the
case while addressing both Greene and defendant simultaneously.
The court analyzed the mitigating and aggravating factors for both
defendant and Greene at the same time. As to defendant, the court applied
aggravating factors three, the risk of re-offense, and nine, the need for
deterrence, giving those factors substantial weight. N.J.S.A. 2C:44-1(a)(3) and
(9). As to factor three, the court concluded that both men failed to take
responsibility for their conduct. As to factor nine, the court explained that there
is a need to deter both defendants and others from engaging in similar conduct
and that the seriousness of the killing showed there was a need to deter both
defendants from similar conduct in the future.
The court applied mitigating factor six because defendant was directed to
pay restitution. N.J.S.A. 2C:44-1(b)(6). The court orally concluded that it
would apply mitigating factor eleven to defendant, but his judgment of
conviction does not reflect this finding. N.J.S.A. 2C:44-1(b)(11). We order
mitigating factor eleven to be reflected on the judgment of conviction, as
A-1614-15T1 18 consented to by the State. We also direct that the judgment be corrected to
reflect that this was not a negotiated plea but a jury trial and that the final charge
was count one, felony murder, only. The court merged the other counts into
count one. The court did not abuse its discretion in sentencing defendant to
thirty-five years in prison, thirty without parole. 2
The court sentenced defendant and Greene simultaneously rather than
individually, a procedure not in line with the sentencing requirement that
aggravating and mitigating circumstances be considered for every defendant
individually. "[E]ach '[d]efendant is entitled to [an] individualized
consideration during sentencing.'" State v. Jaffe, 220 N.J. 114, 122 (2014)
(second and third alterations in original) (quoting State v. Randolph, 210 N.J.
330, 349 (2012)); see also N.J.S.A. 2C:1-2(b)(6); State v McFarlane, 224 N.J.
458, 469 (2016) (remanding for resentencing after sentencing judge stated in an
unrelated proceeding that "a judge 'always' sentences defendants convicted of
first-degree murder to sixty years in prison"); State v. McDuffie, 450 N.J. Super.
554, 577 (App. Div. 2017) (noting that a "'one size fits all analysis' falls short
2 The court added an eighty-five percent parole ineligibility provision and a five-year period of parole supervision under NERA to the sentence. The parole ineligibility does not appear to have any practical ramifications because the thirty-year mandatory parole ineligibility is greater than eighty-five percent of thirty-five years. A-1614-15T1 19 of the specific findings required when imposing sentencing"). Defendant did
not object to this unusual sentencing process at the hearing or on appeal, and we
think the court sufficiently discriminated between defendants when imposing
sentencing. However, it is not an approved procedure and could easily lead to
confusion and mistake.
VI. Accomplice Liability Charge.
Defendant contends as plain error in his pro se supplemental brief that the
court erred by failing to instruct the jury on accomplice liability because the jury
indicated that it was confused during deliberations. Defendant argues that had
the jury been properly instructed, it may have returned a guilty verdict for
robbery, but not for felony murder. He also argues that the jury was not
instructed on lesser-included offenses.
The court and counsel held a lengthy charge conference during which the
entire charge was discussed. The court observed on the record that none of the
parties requested an accomplice liability charge during the charge conference.
During the jury charge, the court provided instructions regarding the four
offenses charged in the indictment. As part of the instructions for robbery felony
murder the court stated:
Under this law, it does not matter which of the defendants who had participated in the robbery actually
A-1614-15T1 20 shot and killed Edward Baker. Nor does it generally matter that the act which caused the death was committed recklessly or unintentionally or accidentally. Each participant in the crime of robbery, whether the participant himself caused the death or not, would be guilty of felony murder.
Similarly, as part of the charge for burglary felony murder, it stated:
Under this law, it does not matter which of the defendants who had participated in the burglary actually shot and killed Edward Baker. Nor does it generally matter that the act which caused the death was committed recklessly, or unintentionally or accidentally. Each participant in the crime of burglary, whether the participant himself caused the death or not, would be guilty of felony murder.
After the charge, Greene's counsel reminded the court in a side-bar that the
counsels for defendants did not want the jury charged on the lesser-included
offenses and that lesser-included offenses were not included on the verdict sheet.
Nevertheless, Greene's counsel was concerned that the jury instructions
could be interpreted to convict defendants of lesser-included offenses. To
alleviate any concerns by defendants that the jury would mistakenly believe that
defendants could be found guilty of lesser-included offenses, the court explained
to the jury that defendants were not indicted for the lesser-included offenses of
second-degree robbery or third-degree burglary.
A-1614-15T1 21 On the second day of deliberations, the jury submitted a note to the court,
which stated:
We understand that to be guilty of felony murder robbery, you do not have to be the person who actually shot the person but can be found guilty by association. Is the same true for felony murder burglary or does each person have to enter the residence?
In response, the court re-read the relevant jury instructions. The court also
reminded the jury that a separate verdict should be rendered for each defendant
and that each case should be decided individually.
The jury's question caused the defense to request additional jury
instructions. Greene's counsel wanted an instruction about how there cannot be
"guilt by association" for any of the charges. The State suggested providing an
accomplice liability charge. Initially, Greene's counsel agreed with the State
and defendant's counsel seemingly joined in that request at that time, but later
Greene's counsel opposed an accomplice liability charge. The court observed
that no one brought up an accomplice liability charge during the charge
conference. Ultimately, the court did not provide the accomplice liability
charge, but rather instructed the jury further about "guilt by association" by
stating:
In reference to this note, the [c]ourt recharged you on the principles of multiple charges where there is more
A-1614-15T1 22 than one defendant and felony murder burglary. The [c]ourt now takes this opportunity to further respond to the statement guilt by association. There is no guilt by association. In your determination of whether the State has proven beyond a reasonable doubt each and every element of the offenses charged, defendants are entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based on the law as I have given it to you.
You must also return separate verdicts for each defendant as to each of the charges being tried. In other words, you will have to decide each case individually. Whether the verdict as to each defendants [sic] are the same depends on the evidence and your determination as judges of the facts.
Neither defendant objected to this charge.
"It is a well-settled principle that appropriate and proper jury charges are
essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). A jury
charge sets up a "road map to guide the jury" and must explain the law to the
jury in the context of the material facts of the case. Ibid. (quoting State v.
Martin, 119 N.J. 2, 15 (1990)). A jury charge must be reviewed in its entirety
to determine the overall effect. Ibid. If a defendant fails to object to the jury
charge, the court may hold, pursuant to Rule 1:7-2, that he or she waived the
right to challenge the jury instruction on appeal. State v. Afanador, 151 N.J. 41,
54 (1997).
A-1614-15T1 23 Because this issue was not raised below, defendant must show plain error
"clearly capable of producing an unjust result." Ibid.; R. 2:10-2. In the context
of a jury charge, plain error has been defined as "[l]egal impropriety . . .
prejudicially affecting the substantial rights of the defendant sufficiently
grievous to justify notice by the reviewing court and to convince the court that
of itself the error possessed a clear capacity to bring about an unjust result."
Ibid. (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
Errors in criminal jury instructions are "excusable only if they are harmless
beyond a reasonable doubt." State v. Vick, 117 N.J. 288, 292 (1989).
Defense counsel did not complain that the court failed to charge the jury
with accomplice liability and did not file a motion seeking a new trial on the
basis that the court should have provided an accomplice liability charge.
Moreover, counsel did not object to the charge that the court provided to the jury
about "guilt by association." The court provided the jury with clear and
comprehensive instructions that satisfied the concerns of the defendants
regarding the jury's use of the term "guilty by association" in its note.
"Only if the record clearly indicates a lesser-included charge—that is, if
the evidence is jumping off the page—must the court give the required
instruction." State v. Funderburg, 225 N.J. 66, 81-82 (2016) (quoting State v.
A-1614-15T1 24 Denofa, 187 N.J. 24, 42 (2006)). Defendant strategically asked the court not to
charge lesser-included offenses. As a result, defendant's argument on appeal
that the court should have nevertheless advised the jury on lesser-included
offenses is rejected. Defendant "cannot beseech and request the trial court to
take a certain course of action, and upon adoption by the court, take his chance
on the outcome of the trial, and if unfavorable, then condemn the very procedure
he sought and urged, claiming it to be error and prejudicial." State v. Jenkins,
178 N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)).
"[W]hen a defendant asks the court to take his proffered approach and the court
does so, [the Court has] held that relief will not be forthcoming on a claim of
error by that defendant." Ibid.
We affirm the convictions and remand only to correct the judgment of
conviction by adding mitigating factor eleven, eliminating the statement that it
was a negotiated plea and reflecting the merger decision that defendant is guilty
of one count of felony murder only. We do not retain jurisdiction.
A-1614-15T1 25