SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued April 30, 2002 -- Decided June 20, 2002
LONG, J., writing for a unanimous Court.
In this appeal, the Court reviews trial errors alleged by a criminal defendant convicted of a series of offenses, including murder, felony murder, kidnapping, and conspiracy. Among the errors alleged by the defendant are an inadequate accomplice instruction, failure to charge lesser included offenses, and the erroneous admission of evidence.
Defendant, Sherron Savage and his brother, co-defendant, Terrell Savage, were charged by indictment
with second-degree conspiracy to commit kidnapping and/or murder; first-degree kidnapping; first-degree purposeful or
knowing murder; and first-degree felony murder. Terrell pled guilty to aggravated manslaughter and
was sentenced to a thirty-year custodial term with an 85% period of parole
ineligibility. Sherron went to trial.
The facts at Sherron’s trial established that on October 7, 1997, a Newark
police officer and his partner found Adam Watkins in the fourteenth floor stairwell
of Brick Towers, a Newark apartment building. He was badly bruised and naked.
There were no witnesses to what happened to him. He was pronounced dead
at the hospital about an hour later.
Watkins had been homeless in the days before his death, due to marital
difficulties, and had been spending nights at the Brick Towers apartments where Terrell
lived with his family. Early on the morning of his death, Watkins left
the Terrell’s apartment and went to the home of Rashon Baskerville, where he
fell asleep on the sofa. That same morning, Terrell discovered that a diamond
ring was missing from his apartment and called his brother, Sherron, to ask
him to help search the apartment for the ring. They did not find
it, prompting Terrell to suspect Watkins of having stolen it. He asked Sherron
to take a ride with him to pick up Watkins. The two drove
to Baskerville’s house. Terrell went into the house while Sherron waited in the
car. A few minutes later, Terrell walked out the house accompanied by Watkins.
Thereafter, with Watkins and Sherron in the car, Terrell then drove to see
Kenneth Long. During the course of their conversation, Terrell told Long that if
Watkins took the ring, he was “going to beat him up.” Terrell then
drove back to Baskerville’s house, where he had a conversation with Baskerville in
which he told him that Watkins had “crossed” him. When Baskerville went over
to the car, Watkins told Baskerville that the ring was in his house.
Baskerville and Terrell accompanied Watkins into the house, where Watkins retrieved the ring
and gave it to Terrell. Subsequently, Terrell walked out of the house with
Watkins and both got into the car. Terrell then drove off with Watkins
and Sherron.
Thereafter, the three men returned to Terrell’s apartment building so that Terrell “could
beat [Watkins] for stealing out of the house after he gave him somewhere
to stay.” According to Sherron, Terrell’s intention was to beat Watkins to teach
him a lesson – not to kill him. When the three men entered the
elevator to the apartment building, Terrell punched Watkins in the face. When the
elevator door opened up to the sixteenth floor, Terrell and Watkins fell out.
Terrell punched Watkins in the face several more times, causing him to fall
to the ground. Sherron admitted that he kicked Watkins in his side once
when Watkins was trying to get up, because he did not want him
to be in a position to attack his brother. Sherron told Terrell to
stop hitting Watkins because he had proved his point and had taught him
a lesson. According to Sherron, they left Watkins sitting on the floor. At
trial, the medical examiner testified that the cause of Watkins’ death was homicide-blunt
force trauma to the head and that the other injuries Watkins sustained were
superficial.
Both Baskerville and Long cooperated with the police investigation. Portions of their statements
were used as evidence during the course of the trial.
At the close of the evidence, the trial court gave a lengthy jury
instruction on the elements of all of the offenses, including accomplice liability, telling
the jury that in order to hold Sherron guilty as an accomplice with
equal responsibility to Terrell, it had to find that Sherron shared the purpose
to commit the crime Terrell committed. The judge further instructed the jury that
it could find Sherron guilty of a lesser included offense if he possessed
a different state of mind. The trial judge refused to give an instruction
on the lesser included offense of criminal restraint and did not, on his
own, give an instruction on the lesser included offense of false imprisonment.
During the course of deliberations, the jury asked for clarification of one of
the instructions, which the trial court viewed as dissatisfaction on the jury’s part
with the state of the law. Thus, the trial judge instructed the jury
that the court was the judge of the law – not the jury – and
offered no further clarification.
Based on the evidence, the jury convicted Sherron on all counts. At sentencing,
the trial court merged the conspiracy conviction into the kidnapping conviction and the
felony murder conviction into murder. The court then sentenced Sherron to a custodial
term of life in prison for murder, with an eighty-five percent period of
parole ineligibility pursuant to the No Early Release Act (NERA) and to a
concurrent thirty-year term of imprisonment with a twenty-five and one-half year period of
parole ineligibility pursuant to NERA, for first-degree kidnapping.
The Appellate Division affirmed, but vacated the NERA aspect of the sentence and
modified the sentence in accordance with the plea bargain. The State filed a
petition for certification regarding the NERA sentence and Sherron filed a cross-petition alleging
trial error.
The Supreme Court denied the State’s petition, but granted Sherron’s cross-petition for certification.
HELD : In this case involving convictions for murder, conspiracy, and kidnapping, the trial
court’s failure to instruct the jury on the lesser included offense of criminal
restraint constitutes error requiring reversal of the conspiracy and murder and kidnapping convictions;
the trial court’s failure to re-explain the accomplice instruction when the jury inquired
about its duty under the instruction was plain error, requiring reversal of the
conviction for knowing and purposeful murder.
1. Appropriate and proper jury instructions are essential to a fair trial and
the standard for assessing the soundness of those instructions is how, under the
evidence before them, and the circumstances of the trial, the jurors understand the
instructions as a whole. (pp. 10-11)
2. When a prosecution is based on the theory that a defendant acted
as an accomplice, the trial court is required to provide the jury with
understandable instructions regarding accomplice liability, including the potential for finding a defendant guilty
of a lesser included offense, depending on his or her state of mind.
(pp. 11-13)
3. New Jersey courts regularly have recognized the importance of tailoring the jury
charges to the facts of the particular case. (pp. 13-15)
4. The jury instruction on accomplice liability in this case was neither internally
inconsistent nor legally deficient, and was entirely correct in its expression of relevant
legal principles. (pp. 15-20)
5. The trial court failed to articulate factually how Terrell could have been
guilty of purposeful or knowing murder, and Sherron guilty of one of the
lesser included offenses, such as aggravated or simple assault, if he possessed a
different state of mind. (pp. 20-21)
6. The trial court’s failure to inquire further into the jury’s note and
to re-explain the accomplice charge in the context of the facts was plain
error. Because the evidence does not necessarily support a finding that Sherron shared
the same homicidal state of mind as Terrell, the supplemental jury instructions were
inadequate to guide the jury in the course of its deliberations on the
murder charge. Thus, the conviction for knowing and purposeful murder must be reversed.
(pp. 21-23)
7. In order to justify a lesser included offense instruction, a rational basis
must exist in the evidence for a jury to acquit the defendant of
the greater offense as well as to convict the defendant of the lesser,
unindicted offense. A defendant is entitled to a charge on all lesser included
offenses supported by the evidence. (pp. 23-25)
8. An unrequested charge on a lesser included offense must be given only
where the facts in evidence clearly indicate the appropriateness of that charge. When
a lesser offense charge is requested by a defendant, the trial court is
obligated to examine the record thoroughly to determine if the rational-basis standard has
been satisfied. The failure to instruct the jury on a lesser included offense
that a defendant has requested and for which the evidence provides a rational
basis warrants reversal of a defendant’s conviction. (pp. 25-27)
9. A jury reasonably could have acquitted Sherron of the kidnapping charge. In
the alternative, the evidence at trial provided a rational basis to charge the
jury on criminal restraint, and the trial court’s failure to do so constitutes
error
requiring reversal of the conspiracy and murder convictions. (pp. 28-31)
10. The trial court had no duty on its own to instruct the
jury on false imprisonment because the evidence did not clearly indicate or warrant
such a charge. (pp. 31-32)
11. The trial court should have charged the jury, at Sherron’s request, on
criminal restraint as a lesser included offense of kidnapping. Thus, Sherron’s convictions for
kidnapping and conspiracy must be reversed. The lesser included offenses to be charged
during a new trial must be evaluated in light of the evidence adduced
at that trial. (p. 32)
12. Under the co-conspirator exception to the hearsay rule, the State must meet
three conditions: (1) the statement must have been made in furtherance of the
conspiracy; (2) the statement must have been made during the course of the
conspiracy; and (3) there must be evidence independent of the hearsay, of the
existence of the conspiracy and defendant’s relationship to it. (pp. 32-34)
13. A conspiracy continues until its objective is fulfilled. If a statement is
made after the conspiratorial objective is completed, it is generally not admissible under
the co-conspirator exception. A conspiracy may continue beyond the actual commission of the
object of the conspiracy if it is shown that a conspirator enlisted false
alibi witnesses, concealed weapons, or fled in order to avoid apprehension. (pp. 34-35)
14. If hearsay evidence is corroborated with sufficient independent evidence that engenders a
strong sense of its inherent trustworthiness, it is admissible under the co-conspirator exception.
(p. 35)
15. The trial court properly concluded that Sherron’s statement to police investigators following
the incident constituted independent evidence that is substantial enough to justify admission of
a co-conspirator’s statement. (pp. 36-37)
16. The portion of Baskerville’s statement containing the declarations made by Terrell in
the evening hours was inadmissible against Sherron under the co-conspirator exception to the
hearsay rule because the statements do not appear to have been made during
and in the furtherance of the conspiracy. (pp. 37-39)
17. Based on Long’s testimony that Terrell asked him to “cover” for him,
it can be inferred that Terrell was attempting to enlist a false alibi
witness as well as to avoid apprehension when they spoke. Because the criminal
enterprise continued to be carried out when Terrell solicited Long’s help in avoiding
apprehension, the trial court did not err by admitting that portion of Long’s
testimony. (pp. 39-40)
Judgment of the Appellate Division is REVERSED, and the matter is REMANDED for
further proceedings consistent with the Court’s opinion.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LaVECCHIA, and ZAZZALI join in JUSTICE
LONG’s opinion. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
57 September Term 2001
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHERRON LATIE SAVAGE,
Defendant-Appellant.
Argued April 30, 2002 – Decided June 20, 2002
On certification to the Superior Court, Appellate Division.
Theresa Yvette Kyles, Assistant Deputy Public Defender, argued the cause for appellant (Peter
A. Garcia, Acting Public Defender, attorney).
Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Peter C.
Harvey, Acting Attorney General, attorney).
The opinion of the Court was delivered by
LONG, J.
Tried to a jury, defendant Sherron Savage (Sherron) was convicted, in connection with
the beating death of Adam Watkins (Watkins), of a series of offenses, including
murder, felony murder, kidnapping, and conspiracy. The Appellate Division affirmed those convictions and
we granted certification to review trial errors alleged by Sherron, specifically, an inadequate
accomplice instruction, failure to charge lesser included offenses, and the erroneous admission of
evidence. We have carefully reviewed this record in light of the legal issues
raised and now reverse.
Defendant Sherron Savage and his brother, co-defendant Terrell Savage (Terrell), were charged by indictment with second-degree conspiracy to commit kidnapping and/or murder, in violation of N.J.S.A. 2C:5-2, N.J.S.A. 2C:13-1 and N.J.S.A. 2C:11-3 (Count One); first-degree kidnapping, in violation of N.J.S.A. 2C:13-1b(1) (Count Two); first-degree purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) or (2) (Count Three); and first-degree felony murder, in violation of N.J.S.A. 2C:11-3a(3) (Count Four). In Count Five, Terrell alone was charged with witness tampering, in violation of N.J.S.A. 2C:28-5a. Terrell pled guilty to aggravated manslaughter and was sentenced to a thirty-year custodial term with an 85% period of parole ineligibility.
Sherron went to trial, at which the following facts were established: Just before noon on October 7, 1997, Newark police officer David Figueroa and his partner found Adam Watkins in the fourteenth floor stairwell of Brick Towers, a Newark apartment building. He was badly bruised and, except for a pair of socks, naked. There were no witnesses to what had happened to him. About an hour later, Watkins was pronounced dead at the hospital.
Watkins had been homeless in the days before his death, due to marital difficulties, and had been spending nights at the Brick Towers apartment where Terrell lived with his family (Sherron was staying with his girlfriend in another apartment in that same building). Early on the morning of October 7, 1997, Watkins left the Savage apartment and went to the home of Rashon Baskerville (Baskerville). He arrived there at approximately 8:00 a.m and fell asleep on the couch.
That same morning, Terrell discovered that a diamond ring, which he believed to be worth $12,000, was missing from his apartment. Shortly after 8:00 a.m., Terrell called and asked Sherron to help search the apartment for the ring. They did not find the ring and, because Terrell suspected that Watkins had stolen the ring, he asked Sherron to take a ride with him to pick up Watkins. The two drove to Baskerville’s house. Terrell entered the house while Sherron waited in the car. A few minutes later, Terrell walked out of the house accompanied by Watkins.
After picking up Watkins at Baskerville’s house, Terrell drove to see Kenneth Long (Long), the owner of Kenyor Auto Body. Long testified that Watkins was sitting in the back seat and “had his face up against the glass [of the car window] ... and ‘looked scared.’” Long could not see Sherron’s face because of the tinted windows on the car. Long further testified that Watkins “was sitting like he wanted to jump out of the car or something.” Terrell told Long that Watkins had been at his home and that his ring was missing. Terrell also told Long that if Watkins took the ring, he was “going to beat him up.”
Terrell then drove back to Baskerville’s house. According to a written statement given to police by Baskerville, most of which he denied making or could not recall at trial, Terrell told Baskerville “that nigger crossed me,” referring to the fact that he allowed Watkins to stay at his home and that Watkins had apparently stolen his diamond ring. When Baskerville asked about Watkins, Terrell told him that Watkins was in his car. Baskerville went outside and observed Watkins sitting in the back seat and Sherron in the front passenger seat.
At some point, Watkins told Baskerville that Terrell’s ring was inside the house. When Baskerville said that Watkins could retrieve the ring, Terrell said that Watkins could not get out of the car. Nevertheless, Baskerville, without objection from Terrell, opened the car door for Watkins. Watkins stepped out of the car and entered the house with Terrell and Baskerville. While in the house, Watkins retrieved the ring and returned it to Terrell. Subsequently, Watkins walked out of the house with Terrell and got back into the car. Terrell then drove off with Watkins and Sherron.
Around noon, Terrell called Baskerville and told him, “that cat ain’t breathing” (apparently referring to Watkins). According to Baskerville’s statement, Terrell asked Baskerville to meet him at Long’s auto body shop because, by that time, Watkins’ body had been found and there was a large police presence at Terrell’s apartment building. Shortly after that call, however, Terrell came to Baskerville’s house and said, “[Y]o, man, I don’t think that cat was breathing; I hope he ain’t dead.” Terrell then asked Baskerville to go to the hospital and check on Watkins. Terrell left after Baskerville refused to go to the hospital or to become involved in any way. Subsequently, Baskerville went to the hospital with Alston to find out Watkins’ condition. At that time, Baskerville learned that Watkins had been beaten to death.
Around 7:30 p.m., Terrell returned to Long’s auto body shop and admitted to Long that “we beat him up” and that Watkins was probably dead. Terrell told Long that if the police questioned him, he should tell them that Terrell was with him at the shop.
Around 8:30 or 9:00 p.m., Terrell drove to Baskerville’s house where he learned that Watkins was, in fact, dead. Upon learning of Watkins’ death, Terrell began to cry and asked Baskerville what charges could be brought against him. When Baskerville inquired how the assault took place, Terrell stated that “he and [Watkins] were fighting and his brother and his friends bone rushed him” and Terrell could not stop it. Terrell also told Baskerville that he and Sherron removed Watkins’ clothes to humiliate Watkins and to teach him a lesson.
Both Baskerville and Long cooperated with the police investigation. Based on their statements to police, Terrell was indicted first and Sherron was later charged. At trial, the medical examiner, Leonard Zaretski, M.D., testified that the cause of Watkins’ death was homicide-blunt force trauma to the head and that the other injuries Watkins sustained were “superficial.”
Sherron’s testimony at trial was similar to Baskerville’s statement. He stated that he had agreed to help Terrell search for the ring. After they were unable to locate it, Sherron went to the store to purchase cigarettes. On his return, Terrell asked Sherron to take a ride with him to get Watkins. When the brothers arrived at Baskerville’s home, Sherron remained in the car listening to the radio while Terrell went inside. Terrell came out of the house with Watkins, who entered the car of his own volition. Sherron had no recollection of going to Long’s auto body business. According to him, while driving away from Baskerville’s house, Watkins told Terrell that the ring was at the house. Sherron testified that they drove back to Baskerville’s house where Terrell and Watkins, in Baskerville’s presence, retrieved the ring. Sherron further testified that, after they retrieved the ring, Watkin’s re-entered the car voluntarily.
According to Sherron, the three men returned to Terrell’s apartment building so that Terrell “could beat [Watkins] ... for stealing out of the house after he gave him somewhere to stay.” Sherron testified that Terrell’s intention was “[t]o teach a lesson, to teach [Watkins] not to steal from him. Not to kill Adam, just to beat him up.” During the fifteen to twenty minute ride back to the apartment building, Sherron testified that Terrell spoke with Watkins about the disappearance of the ring and said to Watkins, “How could you do this to me, you know, man, you know, take from me after I done so much for you?” When the three men arrived at the apartment complex, they walked past a number of people and a security guard. Terrell and Watkins continued their conversation about the ring and Watkins continued to apologize for taking it.
Sherron testified that, when the three men entered the elevator to the brothers’ apartment building, Terrell punched Watkins in the face. The elevator door opened on the sixteenth floor and Terrell and Watkins fell out of the elevator. Terrell hit Watkins in the face five or six times, causing him to fall to the ground. Sherron admitted that he kicked Watkins in his side once, when Watkins tried to get up from the floor. (In his statement to the police that was referred to at trial, Sherron stated that he delivered “kicks” to Watkins’ side.) More specifically, Sherron testified that, when Watkins attempted to get up on his hands and knees, he “kicked him in the side” because he “thought he was going to get up and rush – I thought he was trying to get up to come at my brother.” Sherron admitted that he was “mad” at Watkins for stealing from his mother’s home but said that he kicked Watkins because he did not want him to be in a position to attack Terrell. Sherron told Terrell to stop hitting Watkins because “you done proved your point to him, you taught him a lesson.” According to Sherron, the brothers left Watkins sitting on the floor, fully clothed. After leaving the building, Sherron testified that he had no idea where Terrell went.
Based on the foregoing evidence, a jury convicted Sherron on all counts. At sentencing, the trial court merged the conspiracy conviction into the kidnapping conviction and the felony murder conviction into murder. The court then sentenced Sherron to a custodial term of life in prison for murder, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA) and to a concurrent thirty-year term of imprisonment with a twenty-five and one-half year period of parole ineligibility pursuant to NERA, for first-degree kidnapping.
The Appellate Division affirmed, but vacated the NERA aspect of Sherron’s murder sentence and modified the sentence in accordance with the plea bargain to life imprisonment, with thirty-years parole ineligibility, for murder, consecutive to his sentence for kidnapping. The State filed a petition for certification regarding the NERA sentence and Sherron filed a cross-petition alleging trial error. On January 16, 2002, we denied the State’s petition and granted Sherron’s cross-petition. State v. Savage, 171 N.J. 40 (2002).
Sherron challenges the instruction on accomplice liability as legally incorrect and not tailored to the facts; contends that a jury question revealed a misunderstanding regarding the accomplice liability charge that was not clarified by the court; argues that the court erred in refusing to charge the jury on criminal restraint and false imprisonment as lesser included offenses of kidnapping; and maintains that Terrell’s statements to Baskerville after the crime should not have been admitted under the co-conspirator exception to the hearsay rule.
The State counters that the accomplice instruction was fully supported by applicable legal principles; that it was properly tailored insofar as it apprised the jury of Sherron’s theory of the case; that even if the charge was inadequate, the conspiracy and felony murder convictions would stand; that there was no rational basis in the evidence to support the lesser included offenses of criminal restraint or false imprisonment; and that Terrell’s statements to Baskerville were admissible because they were made in furtherance of the conspiracy.
We turn first to the jury instructions on accomplice liability. Because those instructions were never objected to at trial, they must be evaluated under the plain error standard. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997) (noting that “reviewing court may reverse on basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result”).
It is a well-settled principle that appropriate and proper jury charges are essential to a fair trial. State v. Collier, 90 N.J. 117, 122 (1982) (citing State v. Green, 86 N.J. 281, 287 (1981)). A jury charge constitutes “a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations.” State v. Martin, 119 N.J. 2, 15 (1990). A portion of a charge alleged to be erroneous, however, “cannot be dealt with in isolation ... [and] should be examined as whole to determine its overall effect.” State v. Wilbely, 63 N.J. 420, 422 (1973). The standard for assessing the soundness of a jury instruction is “‘how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary ... jurors understand the instructions as a whole.’” Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997) (quoting Davidson v. Fornicola, 38 N.J. Super. 365, 371 (App. Div. 1955), certif. denied, 20 N.J. 467 (1956)).
When a prosecution is based on the theory that a defendant acted as an accomplice, the trial court is required to provide the jury with understandable instructions regarding accomplice liability. State v. Weeks, 107 N.J. 396, 410 (1987).
“By definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice.” State v. White, 98 N.J. 122, 129 (1984). Therefore, a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he “shared in the intent which is the crime’s basic element, and at least indirectly participated in the commission of the criminal act.” State v. Fair, 45 N.J. 77, 95 (1965).
In addition, when lesser included offenses are submitted to the jury, the court has an obligation to “carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.” State v. Weeks, supra, 107 N.J. at 410. The court made essentially the same point in State v. Fair, supra, 45 N.J. at 95:
If both parties enter into the commission of a crime with the same intent and purpose each is guilty to the same degree; but each may participate in the criminal act with a different intent. Each defendant may thus be guilty of a higher or lower degree of crime than the other, the degree of guilt depending entirely upon his own actions, intent and state of mind.
And speaking with reference to a deadly assault committed by more than one person, Chief Justice Weintraub explained in State v. Madden, 61 N.J. 377, 391 (1972):
[I]f several participate in an attack and death results, the degree of the offense as to each may turn upon his own acts and purpose. Thus if two should attack and one of them intends only a simple assault and battery and is unaware of the intent of the other to use deadly force, he would be culpable only according to his own intent and wrong. But if he participates in an attack or continues in it with an awareness of the purpose of others to kill or to do grievous bodily harm, he is chargeable with that further intent and result.
See also State v. Thomas, 76 N.J. 344, 355-57 (1978); State v. Dissicini, 126 N.J. Super. 565, 570 (App. Div. 1974), aff’d o.b., 66 N.J. 411, (1975).
[State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993).]
See also State v. Harrington, 310 N.J. Super. 272, 278 (App. Div.), certif.
denied,
156 N.J. 387 (1998) (reversing defendant’s convictions because accomplice liability charge “inextricably
link[ed] the criminal liability of the accomplice with the criminal liability of the
principal”); State v. Williams,
298 N.J. Super. 430, 440 (1997) (finding harmless error
trial court’s failure to instruct jury that accomplice may be guilty of aggravated
or reckless manslaughter while principal is guilty of murder because defendant was found
guilty of lesser included offense of aggravated manslaughter and not murder); State v.
Jackmon,
305 N.J. Super. 274, 286 (App. Div. 1997) (reversing defendant’s murder and
attempted murder convictions because jury instructions did not adequately convey that, even if
principal committed purposeful or knowing murder, accomplice could be found guilty of lesser
offense).
In addition to requiring trial courts to instruct juries that an accomplice can
have a different mental state from that of the principal, our courts regularly
have noted the importance of tailoring the jury charge to the facts of
the case. For example, in State v. Cook,
300 N.J. Super. 476 (App.
Div. 1996), in the context of accomplice liability, defendant argued that the charge
failed to explain to the jury that it could find him guilty as
an accomplice to the lesser included offenses of aggravated manslaughter or manslaughter even
if it found that the co-defendant committed purposeful or knowing murder. The Appellate
Division noted that
the jury should have been advised in unequivocal terms that, depending on its
view of the evidence, it could decide that the liability of Cooke was
different from that of [co-defendant] Vaughn because each had a different state of
mind.
Importantly, the court underscored that to impart that basic notion to the jury regarding levels of culpability, “the jury needed a detailed explanation of accomplice liability theory tied to the facts.” Id. at 488 (emphasis added).
We have reaffirmed the need for jury instructions to relate the law to the facts of a case in other contexts. See generally, State v. Sexton, 160 N.J. 93, 106 (1999) (holding that because mistake was offered as defense to manslaughter charge, trial court should have tailored charge to factual circumstances of case and explained how mistake relates to recklessness); State v. Morton, 155 N.J. 383, 422 (1998) (rejecting defendant’s contention that jury charge insufficiently tailored charge to facts of case, reasoning that, in explaining accomplice liability charge, court informed jury of legal significance that co-defendant, not defendant, committed actual murder and that “court wove the facts into the charge”); State v. Gartland, 149 N.J. 456, 475-77 (1997) (finding jury charges on duty to retreat and self-defense “were largely devoid of reference to the specific circumstances of the case”); State v. Olivio, 123 N.J. 550, 567-68 (1991) (noting that “an instruction solely in terms of the language of the statute will not give sufficient guidance to the jury and engenders too great a risk that the jury’s ultimate determination of guilt or innocence will be based on speculation, misunderstanding, or confusion”); State v. Martin, 119 N.J. 2, 18 (1990) (explaining that where two conflicting versions of events are presented, “court should mold instructions to factual hypotheses of parties); State v. Concepcion, 111 N.J. 373, 380 (1988) (“Incorporating specific evidentiary facts into a jury charge is especially helpful in a protracted trial with conflicting testimony.”); State v. Green, 86 N.J. 281, 287-88 (1981) (observing that appropriate and proper jury charges entail “a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find”). That is the backdrop on which the accomplice instruction in this case must be evaluated.
In a two-hour jury instruction, after delineating the elements of all of the offenses with which Sherron was charged, including the lesser included offenses of murder (passion provocation, manslaughter, aggravated manslaughter, reckless manslaughter, second-degree aggravated assault, third-degree aggravated assault, and simple assault), the court proceeded to instruct the jury on accomplice liability, charging, in pertinent part:
I am going to talk to you now about accomplice liability. And you will remember that as to the charge in count three, the murder charge, there are lesser included charges.
As you know, the State alleges that the defendant Sherron Savage is legally responsible for the criminal conduct of his co-defendant Terrell Savage as to the charges of kidnapping, and knowingly or purposeful murder and the lesser included charges of that knowing and purposeful murder.
After defining the term “accomplice,” the court stated:
This provision of the law then means that not only is the person who actually commits the criminal act responsible for it, but one who is legally accountable as an accomplice is also responsible. Now this responsibility as an accomplice may be equal and the same as he who actually committed the crime, or there may be responsibility in a different degree depending on the circumstances as you find them to be.
Let me repeat that. This responsibility as an accomplice may be equal and the same as he who actually committed the crime, or there may be responsibility in a different degree depending upon the circumstances as you find them to be. I will explain further this distinction in a moment.
After explaining the State’s claim that Sherron was equally guilty of the crimes committed by Terrell because he acted as an accomplice, the trial court instructed the jury that the State had to prove, beyond a reasonable doubt, each of the following elements: That in this case that the charge being considered was committed by Terrell Savage. That this defendant either committed the offense himself or solicited Terrell Savage to commit it and/or aid or agree or attempt to aid Terrell Savage in planning or committing it.
Three, that the defendant had the purpose to promote or facilitate the commission of the offense charged.
And, four, that the defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act, or some lesser culpable state of mind that I will address later in my charge.
Now, let me remind you that you should consider that accomplice status separately as to each charge.
Remember that this defendant can be held to be an accomplice with equal responsibility only if you find as a fact that he possessed the criminal state of mind that was required to be proved against the person who actually committed the criminal act.
In order to convict a defendant as an accomplice to the specific crime charged, you must find that the defendant had the purpose to participate in that particular crime. He must act with a purpose of promoting or facilitating the commission of the substantive crime with which he is charged.
In sum, in order to find ... this defendant who you are considering guilty of committing the crime which you are considering on an accomplice theory, the State must prove each of the following elements beyond a reasonable doubt: One, that the charge being considered was committed by Terrell Savage.
Two. That this defendant either committed the offense himself or solicited Terrell Savage to commit it and/or did or agree or attempt to aid Terrell Savage in planning or committing it.
Three. That the defendant had a purpose to promote or facilitate the commission of the offense.
And, four, that the defendant Sherron Savage possessed the criminal state of mind that is required to be proved against the person, in this case it would be alleged on the accomplice theory Terrell Savage, who actually committed the criminal act, or some lesser culpable state of mind.
Now, again, I remind you you should consider the accomplice status separately as to each charge, the charge of kidnapping and the charge as to murder and the lesser included charges.
If you find the defendant guilty of a specific crime which you are considering in that he acted with the same mental state as Terrell Savage, then you need not consider any lesser charge.
If, however, you find . . . the defendant not guilty of acting as an accomplice of Terrell Savage on a specific crime charged, then you should consider whether the defendant did act as an accomplice of Terrell Savage but that he acted with a purpose of promoting or facilitating the commission of some lesser offense than the actual crime charged in the indictment.
Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent upon his own state of mind and not on anyone else’s. In this case not on Terrell Savage’s state of mind.
Guided by these principles, and if you have found the defendant not guilty of a specific crime charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on a lesser charge for that crime. Now, I have previously defined for you murder and the lesser included charges, passion provocation, manslaughter, aggravated manslaughter, reckless manslaughter, second degree aggravated assault, third degree aggravated assault, and simple assault.
In considering whether the defendant is guilty or not guilty as an accomplice on a lesser included charge remember that each person who participates in the commission of an offense may do so with a different state of mind. And the liability or responsibility of each person is dependent upon his own state of mind and no one else’s.
Therefore, when considering lesser included offenses, which I previously described when we talked about murder, the State must prove beyond a reasonable doubt; one, that the charge being considered or a lesser included offense of that charge was committed by, again we are talking about the accomplice theory, so by Terrell Savage.
Two, that this defendant either committed the offense, the lesser included offense himself or did aid or agree or attempt to aid Terrell Savage in committing or planning to commit the lesser included offense.
Three, that the purpose of the defendant was to promote or facilitate the commission of the lesser included offense.
And, four, that the defendant possessed a criminal state of mind that is required for the commission of the offense.
[I]n short, even if you conclude that Sherron Savage was not a principal and that the principal, that would be Terrell Savage, committed purposeful and knowing murder, the accomplice can be found guilty of the same crime or a lesser included offense. For it is only Sherron Savage’s mental state that is at issue in this trial.
We disagree with the defense contention that that instruction was internally inconsistent or legally deficient. In our view, the jury charge was, in its expression of relevant legal principles, entirely correct. The trial court properly instructed the jury that to hold Sherron guilty as an accomplice with equal responsibility to Terrell, it had to find that Sherron shared the purpose to commit the crime Terrell committed. Specifically, the court stated: “[T]his defendant can be held to be an accomplice with equal responsibility only if you find as a fact that . . . defendant had the purpose to participate in [the substantive crime].” In addition, the court instructed the jury that, even if it concluded that Terrell was guilty of murder as a principal, it could find Sherron guilty of some lesser included offense:
[o]ur law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability . . . of each participant for any ensuing offense is dependent upon his own state of mind not . . . [i]n this case . . . on Terrell Savage’s state of mind.”
To be sure, the trial court failed to articulate factually how Terrell could
have been guilty of purposeful or knowing murder, and Sherron guilty of one
of the lesser offenses, for example, aggravated or simple assault, if he possessed
a different state of mind. Indeed, the court’s “canned” accomplice liability instruction was
not tied to the facts at all and, in that respect, violated our
often-expressed exhortation that, to serve its purpose, a charge, especially a complex one,
should be tethered to the facts that the jury has heard.
However, because the trial court instructed the jury in accordance with relevant legal
principles, under ordinary circumstances, we would presume that the jury understood and followed
those instructions. See, e.g., State v. Buris,
145 N.J. 509 (1996) (citing State
v. Manley,
54 N.J. 259, 270 (1969) (stating that, with regard to proper
use of evidence, “the Court presumes that juries will understand and abide by
the court’s instruction”). We cannot indulge that presumption here because, as we have
indicated, the jury asked the following question:
Because of the wording on the counts it seems we have to vote
guilty because of the “law.” Some of us don’t believe the defendant was
the instigator or planned the murder, but because of the wording we cannot
express these feelings.
In response, the trial court answered essentially that it was the judge of
the law, not the jury; that the jury was required to follow the
law; and if it needed further instructions, they would be given.
The State argues that the jury’s note could be taken to mean (as
the trial court obviously assumed) that the jury was not happy with the
law. However, it could also reasonably be construed to mean that the jury
believed that Sherron did not share Terrell’s intent to kill Watkins, but that,
because he participated in some respect in the events surrounding Watkins’ death, he
had to be found guilty of murder under the wording of the verdict
form. Put another way, the question poses the possibility that the jury did
not understand the accomplice charge or that Sherron could be found guilty of
a different offense than Terrell, based on his state of mind.
It is firmly established that “[w]hen a jury requests a clarification,” the trial
court “is obligated to clear the confusion.” State v. Conway,
193 N.J. Super. 133, 157 (App. Div. 1984), certif. denied,
97 N.J. 650 (1984). Further, if
the jury’s question is ambiguous, the trial court must clarify the jury’s inquiry
by ascertaining the meaning of its request. State v. Graham,
285 N.J. Super. 337, 342 (App. Div. 1995).
The trial court’s failure to inquire further into the jury’s note and to
re-explain the accomplice charge in the context of the facts was plain error.
The jury had to understand that, because Sherron was guilty of something, his
culpability did not have to match Terrell’s. There was evidence in this record
from which the jury could have concluded that Terrell purposely committed murder, but
that Sherron, although a participant in the events that led to Watkins’ death,
did not share Terrell’s intent to kill Watkins or to inflict injury on
him and was not even aware that that was Terrell’s purpose. According to
Sherron, he landed only a single kick to Watkins’ side, which the State’s
expert denominated as causing only “superficial injuries.” It was not until Watkins attempted
to get up on his hands and knees that Sherron did anything. Sherron
testified that he kicked Watkins because he thought that Watkins was going to
attack Terrell. Sherron also testified that he told Terrell to stop hitting Watkins
because he believed that Watkins had “learned his lesson.” Under those circumstances, if
it understood the accomplice liability charge, the jury could have found that Sherron
did not intend to cause death or serious bodily injury. Because the evidence
does not necessarily support a finding that Sherron shared the same homicidal state
of mind as Terrell, the supplemental jury instructions were inadequate to guide the
jury in the course of its deliberations on the murder charge. Thus, the
conviction for knowing and purposeful murder must be reversed.
We turn next to Sherron’s claim that the felony murder and kidnapping convictions must also be reversed because the trial court failed to instruct the jury regarding the lesser included offenses of criminal restraint and false imprisonment.
At trial, defense counsel requested that the trial court charge the jury with criminal restraint, N.J.S.A. 2C:13-2, as a lesser included offense of kidnapping. The trial court refused to do so, finding that criminal restraint was “precluded” because there was “clearly a death here.” The Appellate Division affirmed that decision, finding that “there was no rational basis in the proofs to support submission of criminal restraint as a lesser included charge.” Here, Sherron asserts that the trial court erred by failing to give the criminal restraint instruction at defense counsel’s request and the false imprisonment charge sua sponte. We note that, because neither criminal restraint nor false imprisonment is enumerated in N.J.S.A. 2C:11-3, a death during the commission of one of those offenses does not provide a statutory basis for a felony murder conviction.
Pursuant to N.J.S.A. 2C:1-8e, a court “shall not charge the jury with respect to an included offense unless there is a rational basis” to convict a defendant of a lesser included offense. In order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense. State v. Brent, 137 N.J. 107, 113-14 (1994).
We have held that a defendant “is entitled to a charge on all lesser included offenses supported by the evidence.” State v. Short, 131 N.J. 47, 53 (1993); State v. Purnell, 126 N.J. 518, 531 (1992) (stating that “a trial court must charge the jury regarding ‘all of the possible offenses that might reasonably be found from such facts.”) (citing State v. Ramseur, 106 N.J. 123, 271 n. 62 (1987)). As defined by N.J.S.A. 2C:1-8d, an offense is “included” if:
It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise include therein; or
It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
In assessing whether to charge the jury on a lesser included offense, our case law applies a different standard based on whether or not a charge was requested by a defendant at trial. An unrequested charge on a lesser included offense must be given only where the facts in evidence “clearly indicate” the appropriateness of that charge. State v. Choice, 98 N.J. 295, 298 (1985) (citing State v. Powell, 84 N.J. 305, 319 (1980); State v. Grunow, 102 N.J. 133, 148-49 (1985) (noting that “a court ordinarily has supervening responsibility to charge the jury concerning any version of the offense ‘clearly indicate[d]’ by the evidence to require proper jury consideration”). Accordingly, a trial court “should not ‘scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty.” State v. Brent, supra, 137 N.J. at 118; see also State v. Choice, supra, 98 N.J. at 299 (stating that trial court does not “have the obligation on its own meticulously to sift through the entire record” to find appropriate charges).
In contrast, when a defendant requests a lesser included offense to be charged, we have recognized that a strict adherence to the definition of “included” under N.J.S.A. 2C:1-8d “is less important than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.” Brent, supra, 137 N.J. at 117; see also Purnell, supra, 126 N.J. at 531 (citing State v. Sloane, 111 N.J. 293, 300 (1988) (“the statutory definition of lesser-included offenses ... is not ‘all-encompassing,’ nor are the statutory categories ‘water-tight compartments.’”)). Accordingly, when a lesser offense is requested by a defendant, as in this case, “the trial court is obligated, in view of defendant’s interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied.” State v. Crisantos, 102 N.J. 265, 278 (1986). The question is not whether the jury is likely to accept the defendant’s theory, but whether it would have a rational basis on which to do so. State v. Mejia, 141 N.J. 475, 489 (1995). The failure to instruct the jury on a lesser included offense that a defendant has requested and for which the evidence provides a rational basis warrants reversal of a defendant’s conviction. Brent, supra, 137 N.J. at 118.
Sherron was charged with first-degree kidnapping. Under N.J.S.A. 2C:13-1b, a person commits kidnapping
if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:
(1) To facilitate commission of any crime or flight thereafter;
(2) To inflict bodily injury on or to terrorize the victim or another;
(3) To interfere with the performance of any governmental or political function; or
(4) To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.
As defined by N.J.S.A. 2C:13-1d, “confinement” or “removal” are “unlawful” when accomplished by
“force, threat or deception.”
Criminal restraint, a closely-related third-degree crime occurs when a person “knowingly ... [r]estrains
another unlawfully in circumstances exposing the other to risk of serious bodily injury.”
N.J.S.A. 2C:13-2. Our Court has recognized that criminal restraint functions as a lesser
included offense of kidnapping. See, e.g., Brent, supra, 137 N.J. at 122 (noting
that kidnapping by removal and criminal restraint can be proved by the same
set of facts).
The question is whether any view of the evidence in this case presented
a rational basis for the jury to acquit Sherron of kidnapping and, alternatively,
to convict him of criminal restraint. The answer is yes. Under the State’s
theory of the case, Terrell and Sherron kidnapped Watkins by unlawfully removing him
from Baskerville’s home, driving him around to locate the ring, and bringing him
to a isolated stairwell for the purpose of assaulting him. In support of
that theory, Long testified that, when Terrell drove to his auto body shop
on the morning of October 7th, Long saw Watkins in the back seat
of the car looking “sad,” “a little scared,” and “sitting like he wanted
to jump out [of] the car or something.” Additionally, Baskerville’s statement recounted that
Terrell had said that Watkins “couldn’t get out the car.”
Although the State suggested in its summation that the brothers “grabbed” Watkins from
Baskerville’s house while Baskerville was still asleep, there is no evidence in the
record to support that assertion. A jury could have reached other equally rational,
conclusions from Long’s testimony and Baskerville’s statement. Long testified, for example, that he
could not read the facial expression or otherwise identify anyone else in the
car except Watkins due to the dark tint of the car’s windows, thus
eliminating any suggestion that Long witnessed threatening conduct by Sherron. Watkins also made
no attempt to speak to Long or exit from the car. Moreover, a
jury could conclude that Watkins’ hang-dog expression resulted, not from being held against
his will, but because his thievery from his “best friend” had been revealed
and he knew that he deserved and would receive Terrell’s opprobrium or worse.
Likewise, Baskerville’s statement was open to other reasonable interpretations. As the State noted
in its summation, Baskerville flatly denied or could not recall the majority of
his statement at trial. But even if the jury accepted it as true,
in his statement Baskerville said that he opened the car door for Watkins
without any objection from Terrell or Sherron; and that Watkins retrieved the ring
from Baskerville’s house, gave it back to Terrell, and got back into the
car with the brothers without attempting to remain at Baskerville’s house, evade the
brothers, or otherwise demonstrate that he was being held against his will.
No direct evidence existed that the brothers removed Watkins from Baskerville’s house on
either occasion or confined him by force, threat, or deceit. Accepting all reasonable
inferences from Long and Baskerville’s testimony, a jury could have found that Watkins
accompanied the brothers voluntarily, if remorsefully, as they drove from one location to
the next. That conclusion was bolstered by Sherron’s statement that Watkins walked with
the brothers past several people, including a security guard, through the apartment complex
and into their building of his own will. In sum, a jury could
reasonably have acquitted Sherron of the kidnapping charge.
In the alternative, the evidence at trial provided a rational basis to charge
the jury on criminal restraint. Although a jury could have found that there
were no overt indications that Watkins was being unlawfully removed or confined prior
to going to the apartment building, it could also have determined that, at
the point that Sherron kicked Watkins when he tried to rise up, he
unlawfully restrained him. Moreover, despite Sherron’s testimony that he did not know that
Terrell would assault Watkins until it occurred in the elevator, jurors could have
determined that Sherron, in fact, knew of Terrell’s intention to beat up Watkins
as he stated in his initial statement to police. Moreover, a jury could
have concluded that, at the very least, Sherron was aware of Terrell’s intentions
in the elevator and on the landing when he observed him administer a
beating to Watkins. As a result, the jury could have found that, by
assisting Terrell in restraining Watkins, Sherron exposed him to “serious bodily injury” at
Terrell’s hands, meeting the elements of criminal restraint. Under those circumstances and in
light of Sherron’s request, we conclude that the trial court erred by not
instructing the jury on criminal restraint as a lesser included offense of kidnapping
and that that error requires reversal of the conspiracy and murder convictions.
Sherron also argues that the trial court should have charged the jury on
false imprisonment sua sponte. False imprisonment, a disorderly persons offense, occurs when a
person “knowingly restrains another unlawfully so as to interfere substantially with his liberty.”
N.J.S.A. 2C:13-3. False imprisonment is complete upon an unlawful restraint that interferes with
a victim’s liberty. No further wrongful purpose is required. State v. LaFrance,
117 N.J. 583, 591 (1990). The difference between false imprisonment and third-degree criminal restraint
is that the latter requires that the restraint be “in circumstances exposing the
other to risk of serious bodily injury.” N.J.S.A. 2C:13-2(a); State v. Bragg, 295
N.J. Super. 459, 469-70 (1996).
As we have indicated, a jury could acquit Sherron of kidnapping and could
conclude that Sherron unlawfully restrained Watkins when he kicked him as Watkins attempted
to rise during the beating administered by Terrell. However, there is no rational
basis for a jury to conclude that, by that point, Sherron’s actions did
not expose Watkins to the risk of serious bodily injury by Terrell. We,
therefore, conclude that the court had no duty to instruct the jury sua
sponte on false imprisonment because the evidence did not clearly indicate or warrant
such a charge. See, e.g., State v. Turner, 246 N.J. Super. 22 (App.
Div.), certif. denied,
126 N.J. 335 (1991) (finding trial court not required to
charge third-degree aggravated assault as lesser included offense due to severity of victim’s
injury); State v. Mance, 300 N.J. Super. 37 (App. Div. 1997) (finding no
rational basis for lesser included charge of fourth-degree aggravated assault because no evidence
to support mental state of recklessness).
In sum, we determine that the trial court should have charged the jury,
at Sherron’s request, on criminal restraint as a lesser included offense of kidnapping.
We arrive at that conclusion after considering all reasonable inferences to be drawn
from the evidence at trial and the State’s theory of the case. Thus,
Sherron’s convictions for kidnapping and conspiracy must be reversed. Depending on the evidence
adduced at the next trial, the court will be required to reevaluate the
issue of which lesser-included offenses must be charged.
Our reversal of Sherron’s convictions and the requirement of a new trial makes it unnecessary for us to address the evidentiary issue he raises. We choose to comment briefly, however.
“A statement, made other than by the witness while testifying, offered to prove the truth of the content of the statement is hearsay evidence and is inadmissible unless it falls within one of the hearsay exceptions.” State v. Phelps, 96 N.J. 500, 508 (1984). The exceptions to the hearsay rule “are justified primarily because the circumstances under which the statements are made provide strong indicia of reliability.” Ibid. The co-conspirator exception to the hearsay rule, embodied in N.J.R.E. 803(b)(5), provides that statements made “at the time the party and the declarant were participating in a plan to commit a crime” and “made in furtherance of that plan,” are admissible into evidence against another member of the conspiracy. N.J.R.E. 803(b)(5). The rationale for the co-conspirator exception is that “because conspirators are substantively liable for the acts of their co-conspirators, they are equally responsible for statements by their confederates to further the unlawful plan.” State v. Harris, 298 N.J. Super. 478, 487 (App. Div.), certif. denied, 151 N.J. 74 (1997).
That the co-conspirator exception does not offend the Sixth Amendment’s guarantee of a defendant’s right to confront the witnesses against him is well-established. Bourjaily v. United States, 483 U.S. 171, 183-84, 107 S. Ct. 2775, 2783, 97 L. Ed. 2d 144, 157-58 (1997); State v. Boiardo, 111 N.J. Super. 219, 229 (Ap