SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1777-94T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEMOTTE WILLIAMS,
Defendant-Appellant.
_____________________________________
Argued February 5, 1997 - Decided March 11, 1997
Before Judges Long, Skillman and A.A. Rodríguez.
On appeal from Superior Court of New Jersey,
Law Division, Essex County.
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Susan L. Reisner, Public Defender, attorney;
Mr. Kirsch, of counsel and on the brief).
Jane Deaterly Plaisted, Assistant Prosecutor,
argued the cause for respondent (Clifford J.
Minor, Essex County Prosecutor, attorney; Ms.
Plaisted, of counsel and on the brief).
The opinion of the court was delivered by
SKILLMAN, J.A.D.
The primary issue presented by this appeal is whether an
accomplice may be found guilty of purposeful or knowing murder
even though his purpose was to cause serious bodily injury,
rather than death, to the victim. This appeal also requires us
to decide whether a trial court's failure to properly instruct
the jury regarding the mental state required to find a defendant
guilty as an accomplice is harmless error if the defendant is
acquitted of purposeful or knowing murder but found guilty of the
lesser included offense of aggravated manslaughter.
Defendant and codefendants Marvin Widemond and Kelvin Martin
were indicted for conspiracy to commit murder, in violation of
N.J.S.A. 2C:5-2, purposeful or knowing murder, in violation of
N.J.S.A. 2C:11-3a(1)(2), possession of a handgun without a
permit, in violation of N.J.S.A. 2C:39-5b, and possession of a
weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a. In a joint trial, defendant and WidemondSee footnote 1 were both
acquitted of purposeful or knowing murder but convicted of the
lesser included offense of aggravated manslaughter and the
remaining charges.
The court sentenced defendant to a twenty-five year term of
imprisonment, with eight-and-a-third years of parole
ineligibility, for aggravated manslaughter.See footnote 2 The court merged
defendant's convictions for conspiracy to commit murder and
possession of a weapon for an unlawful purpose into his
conviction for aggravated manslaughter. The court also imposed a
concurrent five year term of imprisonment for possession of a
handgun without a permit.
On appeal, defendant makes the following arguments:See footnote 3
I. THE STATE PRESENTED INSUFFICIENT
EVIDENCE TO CONVICT DEFENDANT OF MURDER
OR CONSPIRACY TO COMMIT MURDER.
A. Conspiracy to Murder.
B. Murder.
II. THE INSTRUCTIONS ON ACCOMPLICE LIABILITY
FAILED TO COMPLY WITH THE HOLDING OF
STATE v. BIELKIEWICZ.
III. THE JURY INSTRUCTION ON ACCOMPLICE
LIABILITY WAS CONFUSING AND COULD HAVE
LED THE JURY TO BELIEVE THAT LESS THAN A
PURPOSEFUL STATE OF MIND WAS REQUIRED
FOR CONVICTION AS AN ACCOMPLICE (Not
Raised Below).
IV. THE JURY INSTRUCTIONS ON CONSPIRACY TO
MURDER WERE ERRONEOUS IN THAT THEY
FAILED TO GIVE CONSPIRACY TO COMMIT
ASSAULT AS A VIABLE OPTION, AND FAILED
TO CONFINE CONSPIRACY TO MURDER TO
INSTANCES WHERE THE DEFENDANT'S INTENT
WAS TO KILL, NOT MERELY INJURE, THE
VICTIM. (Not Raised Below).
V. THE SENTENCE FOR AGGRAVATED MANSLAUGHTER
IS MANIFESTLY EXCESSIVE.
We conclude that the State presented sufficient evidence for the jury to find defendant guilty of purposeful or knowing murder. Consequently, the submission to the jury of this charge did not constitute "overcharging" which would require a reversal of defendant's conviction for aggravated manslaughter. We also
conclude that even though the court's instructions regarding
accomplice liability were deficient under the principles set
forth in State v. Bielkiewicz,
267 N.J. Super. 520 (App. Div.
1993), this constituted harmless error because defendant was only
convicted of the lesser included offense of aggravated
manslaughter. We have no need to consider the arguments
presented in Points IA and IV of defendant's brief relating to
his conviction for conspiracy to commit murder, because this
conviction was merged into defendant's conviction for aggravated
manslaughter. The arguments presented under Points III and V of
defendant's brief are clearly without merit and do not require
discussion. R. 2:11-3(e)(2). Accordingly, we affirm defendant's
convictions and sentence.
To place the issues relating to defendant's conviction for
aggravated manslaughter in perspective, it is appropriate to
briefly outline the State's evidence. Maurice Whitley testified
that while he was driving his car in Newark around midnight on
April 23, 1993, defendant and Martin waved for him to stop and
asked for a ride. After they got into the car, defendant told
Whitley that they were searching for someone who had just given
him "fake money" for drugs. Shortly thereafter, they picked up
Widemond and continued their search. At some point, defendant
and Martin saw someone who looked like the person who had taken
the drugs, and they told Whitley to stop the car. As defendant,
Widemond and Martin were getting out of the car, Whitley saw a
gun in the hand of one member of the group, whom he identified as
Widemond in pretrial statements to the police. Widemond and
Martin began running towards what Whitley characterized as "the
graveyard," and defendant ran in another direction. Whitley then
drove away and did not observe the killing. Two police officers
on patrol heard the sound of four gunshots around the same time
and in the same vicinity where Whitley let defendant, Widemond
and Martin out of his car. Shortly thereafter, the officers
apprehended defendant and Martin walking out of an alley near the
graveyard. The officers subsequently found the victim's body in
the alley. Another witness testified that he heard three shots
outside his bedroom window, located near the alley, and that just
before the third shot, he heard someone say, "shoot him." The
State's theory of the case, as presented in the prosecutor's
summation, was that Widemond shot the victim and defendant acted
as his accomplice.
purpose to cause death or serious bodily injury," 267 N.J. Super.
at 534 (emphasis added), but defendant characterizes this part of
our opinion in Bielkiewicz as an "inadvertent" misstatement of
the law "on an issue not critical to its overall holding."
Defendant further argues that even though he was acquitted of
purposeful or knowing murder, his conviction for the lesser
included offense of aggravated manslaughter must be reversed,
because the submission to the jury of a greater criminal charge
for which there is insufficient evidence to support a finding of
guilt exerts a coercive effect upon the jury to find the
defendant guilty of a lesser included offense. See State v.
Christener,
71 N.J. 55, 67-73 (1976).
To establish a defendant's guilt of purposeful or knowing
murder, the State must show that he "purposely" or "knowingly"
caused "death or serious bodily injury resulting in death."
N.J.S.A. 2C:11-3a(1),(2). Thus, the culpability element of
murder is not limited to an intent to cause death but includes an
intent to cause serious bodily injury. See State v. Gerald,
113 N.J. 40, 81-82 (1988).
However, defendant argues that the provision of the Code of
Criminal Justice governing accomplice liability requires the
State to prove that an alleged accomplice had the purpose of
causing the death of the victim. Defendant relies upon N.J.S.A.
2C:2-6c(1)(b), which provides:
c. A person is an accomplice of another
person in the commission of an offense if:
(1) With the purpose of promoting or
facilitating the commission of the offense;
he:
. . . .
b. Aids or agrees or attempts to aid
such other person in planning or committing
it.
Defendant contends that the requirement that the State prove that
an alleged accomplice "act[ed] 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), is analogous to the culpability requirement of attempted
murder, as set forth in State v. Rhett,
127 N.J. 3, 7 (1992),
which is a purpose "to cause the particular result that is the
necessary element of the underlying offense -- death."
Defendant's argument fails to recognize the fundamental
distinction between the mental intents required for the inchoate
offense of an attempted murder and the completed offense of
murder. N.J.S.A. 2C:5-1a(2) provides:
a. Definition of attempt. A person is
guilty of an attempt to commit a crime if,
acting with the kind of culpability otherwise
required for commission of the crime, he:
. . . .
(2) When causing a particular result is
an element of the crime, does or omits to do
anything with the purpose of causing such
result without further conduct on his part.See footnote 4
Thus, to establish an attempt under this provision, the State
must show that a defendant not only acted "with the kind of
culpability otherwise required for the commission of the crime,"
but also acted or failed to act "with the purpose of causing"
whatever "particular result is an element of the crime." Because
the "particular result" that is an element of murder is "death,"
the State must prove that a defendant had a purpose to cause
death for the jury to find him guilty of attempted murder. State
v. Robinson,
136 N.J. 476, 484-86 (1994); State v. Rhett, supra.
In contrast, the culpability element of purposeful or knowing
murder is "purposely" or "knowingly" causing "death or serious
bodily injury," N.J.S.A. 2C:11-3a(1)(2) (emphasis added), and to
be found guilty as an accomplice, a person must act or fail to
act "[w]ith the purpose of promoting or facilitating the
commission of the offense." N.J.S.A. 2C:2-6c(1). Thus, even
though murder in the role of an accomplice is, like attempted
murder, "an intent crime," which requires the State to prove that
the perpetrator acted "purposely" rather than only "knowingly,"
see State v. Bielkiewicz, supra, 267 N.J. Super. at 527-29
(accomplice liability for murder); State v. Rhett, supra, 127
N.J. at 7 (attempted murder), the "purpose" which the State must
prove to convict a person of murder, whether as a principal or as
an accomplice, is a purpose to cause either "death or serious
bodily injury."
A hypothetical may help illustrate the distinction between
the culpability elements of murder committed in the role of an
accomplice and attempted murder. Suppose two mobsters are sent
to break the knees of a gambler who has failed to pay his debts
and one commits the assault while the other acts as a look out.
If the assault causes the victim to die from shock, the person
who actually committed the assault would be guilty as a principal
of murder even though his purpose was solely to cause serious
bodily injury. Moreover, under this hypothetical, the
accomplice's purpose in facilitating the commission of the
assault by acting as a look out would be identical to that of the
principal. Therefore, the accomplice, like the principal, would
be guilty of murder, even though his purpose was solely to cause
"serious bodily injury," because his conduct contributed to
causing the victim's "death." However, if the victim survived
the attack, neither the principal nor the accomplice could be
found guilty of attempted murder because they did not intend to
cause death.
In this case, defendant enlisted Widemond, Martin and
Whitley to help him find the victim. Defendant's stated purpose
in locating the victim was to "hurt him," which the jury could
reasonably have found meant to inflict serious bodily injury.
Therefore, even though the State's evidence was insufficient for
the jury to find that defendant was the shooter or that his
intent was to kill the victim, it was sufficient to show that
defendant, with the intent of inflicting serious bodily injury
upon the victim, instigated and participated in the chase which
resulted in his death. This was all the State had to show for
defendant to be found guilty of murder in the role of an
accomplice.
principal ... committed purposeful or knowing murder, the
accomplice [can] be found guilty of a lesser offense involving
recklessness if he intended that an assault be committed upon
[the victim] but did not share the principal's intent that that
assault cause death or serious bodily injury." Id. at 533.See footnote 5
We agree with the defendant's contention that the trial
court's instructions to the jury did not adequately explain these
principles. The relevant parts of those instructions stated:
One cannot be held to be an accomplice
unless you find that he possessed the same
criminal state of mind that is required to be
proved against its person who actually
committed the criminal act.
In order to convict the defendant as an
accomplice to the crime charged, you must
find that the defendant had the purpose to
participate in that particular crime. He
must act with the purpose of promoting or
facilitating the commission of the
substantive offense with which he is charged.
Now, when I say substantive offenses,
I'm referring to the charges of murder,
aggravated manslaughter and reckless
manslaughter. It is not sufficient to prove
only that the defendant had knowledge that a
co-defendant was going to commit the crime
charged or defendant knowingly facilitated
the commission of it. It must prove not only
that the defendant acted knowingly, but also
that it was the defendant's conscious
objective that the specific crime charged
with be committed.
In order to be convicted of murder, an accomplice not only knows that the principal was going to commit a knowing -- in order to be convicted of murder, the accomplice had
not only known that the principal was going
to commit it, but also have to share the
principal purpose to knowingly or purposely
cause death or serious bodily injury
resulting in death.
An accomplice may be convicted of a
lesser included offense of murder depending
upon the state of mind with which you find
that that defendant acted based upon the
evidence that pertains to him.
Thus, although the trial court informed the jury that an
accomplice may be found guilty of a lesser included offense if he
did have the state of mind required for murder, the court did not
instruct the jury that an accomplice may be found guilty of only
aggravated or reckless manslaughter even though the principal or
another accomplice is found guilty of murder. Therefore, if
defendant had been found guilty of murder, we would be
constrained to reverse his conviction. However, because
defendant was only found guilty of the lesser included offense of
aggravated manslaughter, we conclude that the inadequacy of the
jury's instructions regarding accomplice liability constituted
harmless error.
Fair, Weeks, and Bielkiewicz were all concerned with the
adequacy of jury instructions regarding the state of mind
required for a defendant to be found guilty as an accomplice, in
particular the necessity of imparting to the jury that it can
find that an accomplice acted with a less culpable state of mind
than the principal. In this case, the jury acquitted defendant
of the charge which involved the more culpable state of mind,
namely murder, and only convicted him of aggravated manslaughter,
which required the jury to find the less culpable state of mind of "recklessness," that is, that defendant "conscious[ly] disregard[ed] a substantial and unjustifiable risk" that death "will result from his conduct," which is a risk of "such a nature and degree that considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation." N.J.S.A. 2C:2-2b(3). Defendant argues that the State had to prove a more culpable state of mind -- what defense counsel referred to at oral argument as "super recklessness" -- for defendant to be found guilty of aggravated manslaughter than would have been required to establish guilt of the lesser included offense of reckless manslaughter, and consequently the court should have instructed the jury that it could find Widemond guilty of aggravated manslaughter and defendant guilty of only reckless manslaughter based on their different states of mind. However, the distinction between aggravated and reckless manslaughter does not involve the defendant's state of mind but rather "the degree of risk that death will result from defendant's conduct." State v. Curtis, 195 N.J. Super. 354, 364 (App. Div.), certif. denied, 99 N.J. 212 (1984). The degree of risk required for aggravated manslaughter is a "probability" of death while reckless manslaughter requires "a mere possibility of death." Ibid.; accord State v. Breakiron, 108 N.J. 591, 605 (1987). "These relevant `circumstances' are objective and do not
depend on defendant's state of mind." State v. Curtis, supra,
195 N.J. Super. at 364; see State v. Grunow,
102 N.J. 133, 143
(1988); State v. Radziwil,
235 N.J. Super. 557, 569 (App. Div.
1989), aff'd o.b.,
121 N.J. 527 (1990). Therefore, the
inadequacy of the trial court's instructions regarding the state
of mind required for defendant to be found guilty as an
accomplice could not have affected the jury's decision to find
defendant guilty of aggravated rather than reckless manslaughter
and thus was harmless error.
Accordingly, defendant's convictions and sentence are
affirmed. The case is remanded to the trial court for entry of
an amended judgment of conviction in conformity with the
sentencing transcript.
Footnote: 1 Martin was tried separately. Footnote: 2 The judgment of conviction incorrectly indicates that defendant was sentenced to a twenty-five year term, with eight-and-a-third years of parole ineligibility, for possession of a handgun without a permit, and that he was convicted of possession of hollow nose bullets, in violation of N.J.S.A. 2C:39-3f. Accordingly, the case must be remanded for entry of an amended judgment of conviction. Footnote: 3 Widemond filed a separate appeal from his convictions, in which we are also filing our opinion today. State v. Widemond, A-1772-94T4. Footnote: 4 Although N.J.S.A. 2C:5-1a(1) and (3) set forth other circumstances under which a person may be found guilty of a criminal attempt, the Court in Rhett did not cite these subsections and defendant's argument rests exclusively upon Rhett. Footnote: 5 Model Jury Charges explaining these principles were approved on May 22, 1995. Model Jury Charges (Criminal), §2C:2-6 Liability for Another's Conduct.