SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1302-01T4
STATE OF NEW JERSEY,
Plaintiff-Respondent/
Cross-Appellant,
v.
JOHN L. HARRIS,
Defendant-Appellant/
Cross-Respondent.
__________________________________
Argued January 7, 2003 - Decided February 25, 2003
Before Judges Skillman, Cuff and Lefelt.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
2847-09-00.
Stephen W. Kirsch, Deputy Public Defender,
argued the cause for appellant/cross-
respondent (Yvonne Smith Segars, Public
Defender, attorney; Mr. Kirsch, on the
brief).
Jack L. Weinberg, Acting Assistant
Prosecutor, argued the cause for
respondent/cross-appellant (Vincent P.
Sarubbi, Camden County Prosecutor, attorney;
Mr. Weinberg, of counsel and on the brief).
The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
This appeal requires us to consider the correct form of jury
instruction when a defendant is charged with armed robbery based
on simulated possession of a deadly weapon.
A jury found defendant guilty of third-degree burglary, in
violation of N.J.S.A. 2C:18-2; third-degree theft, in violation
of N.J.S.A. 2C:20-3; armed robbery, in violation of N.J.S.A.
2C:15-1; and third-degree escape, in violation of N.J.S.A. 2C:29-
5a. The jury also acquitted defendant of a charge of fourth-
degree aggravated assault, and the trial court dismissed a second
count of escape. The court sentenced defendant to an extended
fifty-year term of imprisonment, with fifteen years of parole
ineligibility, for the armed robbery, and concurrent five-year
terms, with two-and-a-half years of parole ineligibility, for the
burglary and the escape. The court merged defendant's theft
conviction into his conviction for armed robbery.
Defendant's convictions arose out of a burglary of an
apartment in the Regency Court Apartments on the White Horse Pike
in the Borough of Magnolia. Around 2:30 p.m. on January 11,
2000, one of the tenants, Lamont Lundy, observed a man later
identified as defendant carrying numerous items of clothing from
the area of the apartment of the victim, Zachary Paige, through a
courtyard in the direction of a parking lot. When he made these
observations, Lundy assumed defendant was a tenant who was moving
out of his apartment.
Around the same time, another tenant, Joseph Cross, who
lived next door to Paige, saw a man he later identified as
defendant carrying a big box covered by a blanket out of Paige's
apartment. Cross asked defendant whether he knew Paige.
Defendant said he did, and that he had just bought his projection
TV "for five bucks." After defendant declined his offer to help
him carry the TV, Cross went back into his apartment.
Around 3:15 p.m., Paige returned home from work and met his
friend, Walter Domanski, Jr., who worked in the apartment complex
and was the manager's son. As they approached Paige's apartment,
they noticed that the hinges on the front door were torn off.
When Paige entered the apartment, he discovered that his TV,
numerous items of clothing, cellular telephones, gold chains,
cash and other personal property were missing. Paige immediately
reported the crime to the Magnolia Police Department. While
Paige was calling the police, Domanski went to tell his father,
Walter Domanski, Sr., what had happened. Paige and the two
Domanskis then began looking for the perpetrator. The three men
encountered Lundy, who told them he had seen a man carrying
clothing from Paige's apartment.
Shortly thereafter, the men saw defendant in the woods
adjoining the apartment complex, drinking a beer and looking at
them. The men approached defendant, asked him who he was and
what he was doing there. Defendant responded, "I'm just drinking
a beer. I'm minding my own business." Paige and Domanski, Jr.
then noticed that defendant was wearing Paige's Reebok jacket,
leading Paige to exclaim: "Oh my god, that is my jacket!" When
defendant heard this, he threw his beer can at the men and
attempted to punch Paige. Domanski, Jr. stepped in front of
Paige, got hit with the punch, then grabbed defendant, placed him
in a headlock, and wrestled him to the ground.
According to Paige, after Domanski, Jr. wrestled defendant
to the ground, defendant said: "You don't know who I am. You
don't know my background. Um, I got a gun on me. I'll shoot
you. I'll kill you." At this point, defendant "reached behind
his back like he was about to do something, as far as reach for a
gun or a knife, whatever the case may be and [Domanski, Sr.]
stopped him." However, defendant was not in fact armed, and
Domanski, Jr. kept him on the ground until the police arrived and
placed him under arrest.
The police and the group of men subsequently searched the
area around the apartment complex for the items taken from
Paige's apartment. They discovered his projection TV hidden
behind a dumpster near the parking lot. However, the only other
item recovered was the Reebok jacket worn by defendant.
The police brought defendant to the police station and
handcuffed him to a bench. However, a short while later, they
heard the back door slam shut, and when they looked at the bench,
they saw that defendant had escaped from the handcuffs and left
the police station. This conduct was the basis of defendant's
conviction for escape, which is not challenged in this appeal.
Defendant was arrested sometime later in Virginia.
On appeal, defendant argues that the trial court erred in
refusing to give an instruction to the jury concerning cross-
racial identification, failing to instruct the jury concerning
simple assault and terroristic threats as lesser included
offenses of robbery, and failing to adequately explain to the
jury that to convict him of "armed" robbery, it had to find that
he "simulated" possession of a weapon rather than merely verbally
threatening use of a weapon. In addition, defendant has
submitted a pro se supplemental brief which argues that the trial
court erred in admitting Paige's Reebok jacket into evidence
because the State did not establish the chain of custody of this
evidence and that the evidence was insufficient to support his
conviction for armed robbery. The State has cross-appealed on
the ground that the trial court failed to impose the sentence of
life imprisonment without parole mandated by N.J.S.A. 2C:43-7.1,
sometimes referred to as the "Three Strikes and You're In" law.
State v. Oliver,
316 N.J. Super. 592, 594 n.1 (App. Div. 1998),
aff'd,
162 N.J. 580 (2000).
We conclude that the arguments set forth in defendant's
supplemental pro se brief are clearly without merit and do not
require discussion. R. 2:11-3(e)(2). We also conclude that the
trial court did not abuse its discretion in refusing to give a
cross-racial identification instruction. However, the court
erred in failing to instruct the jury regarding simple assault
and terroristic threats as lesser included offenses of robbery
and its instruction regarding armed robbery did not adequately
explain the law regarding simulated possession of a weapon. The
court's failure to submit to the jury the lesser included
offenses of robbery and the inadequacy of its instruction
regarding armed robbery do not affect defendant's convictions for
burglary and escape. Therefore, we affirm defendant's
convictions for burglary and escape, but reverse his conviction
for armed robbery. The reversal of defendant's robbery
conviction makes it unnecessary to consider whether he was
properly sentenced under N.J.S.A. 2C:43-7.1.
In State v. Cromedy, 158 N.J. 112, 132 (1999), the Court held that a jury instruction regarding the difficulty of cross- racial identification must be given in any case where "identification is a critical issue . . ., and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability."
Defendant asked the court to give the jury a cross-racial identification instruction because he is black and the only witness who claimed to have seen him leaving the victim's apartment was Cross, who is white. However, the trial court denied the application because both Lundy, who also observed defendant in the area of the victim's apartment, and the victim are black, and the State presented substantial evidence corroborating Cross's identification.
We affirm the trial court's denial of defendant's application for a cross-racial identification instruction substantially for the reasons stated by the court. Defendant was observed in the area of the victim's apartment carrying items of personal property under suspicious circumstances not only by Cross but also by Lundy, who is black, and their identifications of defendant as the perpetrator were corroborated by substantial other evidence including defendant's wearing of the victim's Reebok jacket shortly after the crime. Thus, the State presented overwhelming evidence that defendant was the perpetrator, and the only real issue at trial was whether defendant's actions while he was being apprehended converted what otherwise would have been a burglary and theft into an armed robbery. Consequently, this was not a case where identification was "a critical issue" or where Cross's identification of defendant "[was] not corroborated by other evidence giving it independent reliability." Ibid.
Pursuant to N.J.S.A. 2C:1-8e, a trial court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." When a defendant requests submission to the jury of a lesser included offense, the court is obligated to examine the record and determine whether a rational basis exists for the jury to acquit the defendant of the charged offense and convict him of the lesser offense. State v. Brent, 137 N.J. 107, 113-14 (1994). However, when the defendant does not request a lesser included offense instruction, the court only needs to determine whether the evidence "clearly indicates" the appropriateness of submitting that offense to the jury. State v. Choice, 98 N.J. 295, 298 (1985).
Robbery is proscribed by N.J.S.A. 2C:15-1a, which provides:
A person is guilty of robbery, if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
[Emphasis added.]
In State v. Jordan,
240 N.J. Super. 115 (App. Div.), certif.
denied,
122 N.J. 328 (1990), we held that where there is a
question whether the defendant's act of "inflict[ing] bodily
injury," "us[ing] force upon another" or "threat[ening] another
with [or] purposely put[ting] him in fear of bodily injury"
occurred "in the course of committing a theft," the trial court
must submit theft to the jury as a lesser included offense of
robbery. In that case, store detectives confronted a shoplifter
shortly after he left the store and asked him whether he had a
receipt for the merchandise he was carrying. The shoplifter
responded by throwing a punch at one of the detectives and
swinging a bag containing radios at his head. The detectives
grabbed defendant and eventually subdued him. After defendant
was brought back to the store, he "body slammed" one store
detective and threw another one into a display case in an effort
to escape. We reversed defendant's conviction for robbery
because the trial court failed to submit theft or shoplifting to
the jury as lesser included offenses:
The jury might have rejected the State's
proofs that defendant used force against
[Detective A] when he was stopped after
leaving the store and it might have found
that defendant's infliction of bodily injury
on [Detective B] and [Detective C] after he
was returned to the store occurred after
flight had been concluded and defendant was
in custody. Thus, the jury might have found
that the bodily injury to the two store
detectives was not inflicted in the course of
committing a theft. . . .
[Id. at 120-21 (citations omitted).]
Similarly, in State v. Grissom,
347 N.J. Super. 469, 479
(App. Div. 2002), we reversed a robbery conviction because the
trial court refused to submit theft of services to the jury as a
lesser included offense. The defendant in Grissom walked away
from a taxicab without paying. When the driver followed him and
demanded his fare, the defendant pulled out a handgun and asked,
"are you looking for money?" Id. at 473. In concluding that the
jury could have acquitted defendant of robbery and found him
guilty of the lesser included offense of theft of services, we
observed that "there . . . is sufficient evidence in the record
from which a jury could have concluded that defendant reached a
point of at least temporary safety . . . when he exited the cab
and that his pointing the gun was a separate offense." Id. at
479.
There was ample evidence in this case from which the jury
could have found that defendant was not still "in immediate
flight" after commission of the thefts in Paige's apartment when
Paige and the Domanskis approached and eventually apprehended him
in the woods. The evidence indicated that as much as forty-five
minutes elapsed between the thefts and this violent confrontation
with defendant. Furthermore, the fact that none of the items
stolen from Paige's apartment, except for the TV and Reebok
jacket, were ever recovered could support an inference that
defendant transported those items to some location remote from
the apartment, where he would have "reached a point of at least
temporary safety," State v. Mirault,
92 N.J. 492, 500-01 (1983),
but chose for some reason to return to the scene of the crime.
Under this view of the evidence, the jury could have found
that the burglary and thefts from Paige's apartment and the
confrontation with defendant that led to his apprehension were
discrete events, and that defendant was no longer in the course
of committing the theft when he punched Domanski, Jr. and
threatened him and Paige. In that event, defendant could have
been found guilty of burglary and theft for his unlawful conduct
in entering and stealing property from Paige's apartment and
simple assault and terroristic threats for his unlawful conduct
when Domanski, Jr. apprehended him.
However, the trial court failed to present the jury with
this option because the only offense it submitted to the jury
relating to the violent confrontation in the woods was the armed
robbery charge. Thus, the jury was placed in a position where it
either had to find defendant guilty of armed robbery or acquit
him entirely of any offense relating to the Domanskis' and
Paige's confrontation with him, which is precisely the kind of
"all-or-nothing" choice that the requirement of submission of
lesser included offenses to the jury is design to avoid. See
State v. Short,
131 N.J. 47, 54 (1993). Moreover, even though
the court instructed the jury regarding theft, this charge was
not submitted to the jury as a lesser included offense of
robbery. Therefore, the submission to the jury of theft, simple
assault and terroristic threats as lesser included offenses of
armed robbery was "clearly indicated" and the court's failure to
charge these lesser included offenses requires a reversal of
defendant's conviction and a new trial.
Although the court's failure to submit lesser included offenses to the jury requires a reversal of defendant's armed robbery conviction, it is appropriate for the guidance of the court at the retrial to discuss the court's instruction regarding the charge of armed robbery with a simulated weapon.
Robbery is elevated from a second to a first-degree offense if the defendant "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b.See footnote 11 A "deadly weapon" is defined as:
any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury;
[N.J.S.A. 2C:11-1c (emphasis added).]
In State v. Hutson,
107 N.J. 222, 227 (1987), the Court
concluded that, under the underscored part of this definition, if
a defendant does not actually possess a firearm or other object
"known to be capable of producing death or bodily injury" in the
course of a robbery, the State must prove that there was "some
tangible object possessed by the defendant that the victim
believe[d] to be a deadly weapon. . . . A threat or reference to
a gun alone is not enough." Moreover, the victim's subjective
belief that the tangible object was a deadly weapon must have
been "a reasonable one under the circumstances." Ibid.
Applying this interpretation of the definition of deadly
weapon, the Court in Hutson concluded that the defendant, who
threatened the use of a gun when he demanded money from the
victim and was carrying a newspaper when he made the threat,
could not be found guilty of armed robbery because the State did
not present any evidence that the newspaper was fashioned or held
in such manner as to create a reasonable impression it was a
weapon or concealed a weapon. Id. at 228-29. The Court
observed, however, that "a newspaper could be so fashioned as to
imply either that it conceals such a weapon or is itself such a
weapon, and thereby satisfy the definition" of a "deadly weapon."
Id. at 230.
Based on Hutson, the Court concluded in State v. LaFrance,
224 N.J. Super. 364, 371-73 (App. Div. 1988), rev'd on other
grounds, aff'd o.b. as to this point,
117 N.J. 583, 595 (1990),
that a robber who pretended to possess a gun by placing his hand
inside his jacket and creating a bulge could be found guilty of
armed robbery. Similarly, the Court concluded in State v. Huff,
292 N.J. Super. 185, 189-92 (App. Div.), aff'd o.b.,
148 N.J. 78
(1997), that a robber who told the victim, "I have a gun here,"
and patted the waist area of a loose fitting coat, could be found
guilty of armed robbery. In reaching this conclusion, our
opinion stated that "it was reasonable for the cashier to accept
defendant's simulation of possession of a gun by patting his
waist, covered by a loose fitting stadium coat, proclaiming 'I
have a gun here[.]'" Id. at 190.
The issue in Hutson, LaFrance and Huff was the sufficiency
of the evidence to support convictions for armed robbery rather
than the adequacy of the jury instruction regarding an armed
robbery based on simulated possession of a weapon. Because the
Court in Hutson found the evidence insufficient to find defendant
guilty of armed robbery, it had no occasion to consider the jury
instruction. The statement of the issues presented in LaFrance
does not indicate that defendant presented any argument regarding
the jury instruction for armed robbery. 224 N.J. Super. at 367.
Nevertheless, after concluding that the evidence was sufficient
to support the conviction, we stated:
Surely, the instruction that "it is the
intent of the law to provide the same
sanction for robbery committed by simulating
the use of a weapon as for one who
perpetrates a robbery with an actual firearm"
adequately conveyed to the jury that a
conviction of first-degree robbery required
their finding that the [victims] had a
reasonable belief that defendant possessed a
gun. Moreover, defendant has failed to
demonstrate that the charge in this respect
was clearly capable of producing an unjust
result. R. 2:10-2.
[Id. at 372-73.]
As in LaFrance, the statement of issues in Huff does not include
any issue as to the adequacy of the jury instruction regarding
armed robbery, 292 N.J. Super. at 187-88, and our opinion simply
noted that "[t]he jury was carefully charged on the issue, both
in the formal charge, and in response to several jury questions."
Id. at 190. In addition, we indicated that the trial court
responded to one of the jury's questions by stating:
[T]he Defendant must use a firearm or other
weapon, device, instrument, material or
substance, and the manner in which that item
is fashioned must lead the victim
reasonabl[y] to believe it capable of
producing death or serious bodily injury.
The victim need not see the device or
instrument so long as there is some device
used by the defendant that is fashioned to
create in the victim the reasonable sensory
impression that the object is capable of
causing serious harm or death.
[Id. at 191.]
Thus, neither the Supreme Court nor this court have been required
to consider what instruction the jury must be given when an armed
robbery charge is predicated upon simulated possession of a
deadly weapon. Moreover, there is no model jury charge that
deals with this type of armed robbery.
In this case, the trial court provided the jury with the
following instruction regarding the armed robbery charge:
Now members of the jury, a portion of
our statute provides that a robbery is a
crime of the second degree except that it is
a crime of the first degree if the robber is
either armed with or uses or threatens the
immediate use of a deadly weapon. In this
case the State's allegation is that the beer-
can is a deadly weaponSee footnote 22 and that there was a
threat of the use of a gun and, therefore,
the State's alleging the defendant threatened
the immediate use of a deadly weapon.
In order for you to determine and answer
the question you must understand the meaning
of deadly weapon. A deadly weapon is any
firearm, or any other weapon, device,
instrument, material or substance which in
the manner it is used or intended to be used,
is known to be capable of producing death or
serious bodily injury, or in which the manner
it is fashioned would lead the victims
reasonably to believe that it was capable of
producing death or serious bodily injury.
The State does not have to prove that
the defendant actually had a real gun. As I
indicated to you, the definition of a deadly
weapon provides that a deadly weapon includes
the use of any object which, in the manner it
is fashioned, would lead the victim
reasonably to believe that it was capable of
producing death or serious bodily injury.
Therefore, if that State has proven, beyond a
reasonable doubt, that the defendant, through
his words and gestures, intentionally lead
Walter Harris or Zachary Paige to reasonably
believe that they [sic] had a real gun, then
the State has satisfied the deadly weapon
element of the crime to elevate it to the
first degree.
This instruction did not adequately explain to the jury what
the State must prove when an armed robbery charge is predicated
upon alleged simulated possession of a deadly weapon. The trial
court did not tell the jury, in accordance with Hutson, that "[a]
threat or reference to a gun alone is not enough[,]" and that
"there must be some tangible object possessed by the defendant
that the victim believes to be a deadly weapon[,]"See footnote 33 for a
defendant to be found guilty of armed robbery. 107 N.J. at 227.
The court's instruction that the State had to prove "that the
defendant, through his words and gestures, intentionally led [the
victim] to reasonably believe that [he] had a real gun" was too
vague, because it failed to convey to the jury that the only kind
of "gesture" that can satisfy the requirements of N.J.S.A. 2C:11-
1c is one which simulates possession of a deadly weapon, such as
creating a bulge by placing a hand in a pocket, as in LaFrance,
or patting the waist area of a bulky coat, as in Huff.See footnote 44
The record left some uncertainty concerning the manner in
which defendant allegedly simulated possession of a weapon.
According to Paige, defendant "reached behind his back like he
was about to do something, as far as reach for a gun or a knife,
whatever the case may be and [Domanski, Sr.] stopped him."
However, according to Domanski, Jr., when defendant said he had a
gun and was going to shoot him, defendant "[p]ut his hand in his
pocket and then he took it out." Lundy, the only other witness
who testified about Domanski's apprehension of defendant, did not
mention that defendant threatened use of or made any motion to
retrieve a weapon. In view of this conflicting evidence, the
jury very well could have found that the State failed to prove
beyond a reasonable doubt that defendant possessed "some tangible
object" that was "fashioned in such a manner that the victim[s]
reasonably believe[d] it to be capable of causing bodily injury
or death." Hutson, supra, 107 N.J. at 227-28. Therefore, even
if the trial court had not committed reversible error by failing
to submit theft, terroristic threats and simple assault as lesser
included offenses of robbery, its failure to adequately explain
the concept of simulated possession of a deadly weapon would have
required a reversal of defendant's armed robbery conviction. See
State v. Burgess,
154 N.J. 181, 186 (1998).
Accordingly, we affirm defendant's convictions for burglary
and escape. We reverse defendant's conviction for armed robbery
and remand to the trial court for a retrial of that charge in
conformity with this opinion.
Footnote: 1 1 Robbery is also elevated to a first-degree offense if
the defendant "attempts to kill anyone, or purposely inflicts or
attempts to inflict serious bodily injury" in the course of the
offense. Ibid. The indictment did not allege and the State did
not present any evidence that defendant's offense constituted a
first-degree robbery under this part of N.J.S.A. 2C:15-1b.
Footnote: 2 2 The trial court submitted the State's contention that
the beer can defendant threw at Paige and the Domanskis
constituted a deadly weapon by a separate question on the jury
verdict sheet, which asked:
In the course of committing the theft, did the
defendant, use or threaten the immediate use of a
deadly weapon? (Beer Can)
The jury's response to this question was "no." Therefore, it is
clear the jury found defendant guilty of armed robbery based on
his simulated possession of a gun rather than his actual
possession of a beer can.
Footnote: 3 3 The trial court in Huff conveyed this concept by
telling the jury that there must be "some device used by the
defendant that is fashioned to create in the victim the
reasonable sensory impression that the object is capable of
causing serious harm or death." 292 N.J. Super. at 191.
Footnote: 4 4 Because it is fairly common for an armed robbery to be
committed with a simulated weapon and, as this case illustrates,
the definition of "deadly weapon" as applied to a simulated
weapon is not easily explained to a jury, the Supreme Court
Committee on Model Jury Charges, Criminal, should consider
formulation of a model charge dealing with this subject.