SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-883-95T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY HARRINGTON,
Defendant-Appellant.
________________________________
Argued March 11, 1998 - Decided March 27, 1998
Before Judges Baime, Braithwaite and Bilder.
On appeal from Superior Court of New
Jersey, Law Division, Hudson County.
James K. Smith, Jr., Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney;
Mr. Smith, of counsel and on the brief).
Lisa Sarnoff Gochman, Deputy Attorney General,
argued the cause for respondent (Peter Verniero,
Attorney General, attorney; Ms. Gochman, of
counsel and on the brief).
The opinion of the court was delivered by
BAIME, P.J.A.D.
Following a lengthy jury trial, defendant was found guilty of purposeful or knowing murder (N.J.S.A. 2C:11-3a(1) and (2)), felony murder (N.J.S.A. 2C:11-3a(3)), first degree robbery (N.J.S.A. 2C:15-1), third degree possession of a knife for an unlawful purpose (N.J.S.A. 2C:39-4d), third degree possession of a weapon under circumstances not manifestly appropriate for
lawful use (N.J.S.A. 2C:39-5d), second degree aggravated assault
(N.J.S.A. 2C:12-1b(1)), and third degree aggravated assault
(N.J.S.A. 2C:12-1b(2)). On the conviction for purposeful or
knowing murder, the trial court sentenced defendant to life
imprisonment with a thirty year parole disqualifier. A
consecutive sentence of twenty years with a ten year parole
disqualifier was imposed on the conviction for first degree
robbery. Defendant was sentenced to a consecutive term of ten
years with a five year parole disqualifier on the conviction for
second degree aggravated assault. The remaining convictions were
merged. Defendant contends on appeal that: (1) the trial court
committed plain error in its charge on accomplice liability, (2)
trial counsel was constitutionally ineffective, (3) the
prosecutor exceeded the bounds of fair comment in his opening
statement, and (4) the sentences were manifestly excessive. We
are constrained to reverse.
In the early evening hours of January 12, 1994, Richard Harry was walking home from work when he was accosted by four men and stabbed in the chest. Approximately one-half hour later, Rudolfo Llorente was approached by the same men and was stabbed and robbed. Harry recovered from his near-fatal wound. Llorente did not.
The prosecution's evidence against defendant consisted primarily of the testimony of his alleged confederates - Anthony Ramirez, Greg Hickman and Jimmy Torres. These individuals were
each granted immunity and testified that it was defendant who
stabbed Harry and Llorente. They also recounted that defendant
attempted to rob another person, Alberto Garcia Espado, some time
between the two stabbings. Espado testified at trial and
confirmed that defendant had attempted to rob him. However,
Harry identified Hickman as the individual who had stabbed him.
We add that the testimony of Ramirez, Hickman and Torres diverged
wildly on many key points, and each gave the police markedly
inconsistent statements concerning the extent of their
participation in the crime.
Torres, for example, testified that he did not see defendant
stab Harry. He claimed, instead, that he heard defendant ask
Harry for a quarter. Shortly thereafter, defendant exclaimed he
had “just stabbed” the victim and displayed a six or seven inch
steak knife to his confederates. Torres further claimed that he
and Hickman did not participate in the robbery and killing of
Llorente. Torres stated that he and Hickman merely watched
impassively as defendant stabbed the victim and Ramirez rifled
through the victim's pockets. Torres admitted that Hickman then
approached Llorente's lifeless body and picked him up and shook
him while defendant cleaned his bloody knife in the snow.
Although Hickman's testimony deviated from that of Torres in many
details, he agreed that defendant and Ramirez were the principal
culprits in the robbery and murder of Llorente.
Ramirez testified that defendant had shown him a steak knife
while the two men were walking toward the downtown area to meet
Hickman and Torres. According to Ramirez, he did not see
defendant stab Harry, having stopped to urinate in a nearby
alley. Ramirez claimed that when he caught up to the other three
men, Hickman told him that defendant had stabbed the victim. In
his trial testimony, Ramirez asserted that defendant said, “he
wanted to stick up somebody,” as the four men noticed Llorente
crossing the street. Ramirez testified that defendant walked up
to Llorente and “push[ed] him [in] the chest area.” Llorente
immediately fell to the ground. Defendant, Torres and Ramirez
then fled the scene. Ramirez testified that Hickman remained
behind. Later, Hickman met the other three men and, while
washing the blood from his hands with snow, exclaimed that he had
“got[ten] paid.” Ramirez claimed that, while in prison after
their arrest, defendant had ordered him to falsely implicate
Hickman in the killing of Llorente.
Lisa Cortes was defendant's sole witness. She testified
that Hickman attempted to rob her approximately six months after
the murder of Llorente. Cortes recalled Hickman threatening to
“do [her] the way him and his friends did the guy on Morgan
Street.” In her statement to the police, Cortes' recollection
was somewhat different. Cortes told the police that Hickman
ordered her to “give it up” because he had “killed someone
before.” Cortes also claimed that Hickman's friends had
attempted to prevent her from testifying about Hickman's
statement.
It is against this factual backdrop that we consider
defendant's arguments.
Initially, we are obliged to reverse defendant's convictions for purposeful or knowing murder, first degree robbery and second degree aggravated assault. These convictions were tainted by the trial court's faulty instructions on accomplice liability.
Defendant neither submitted a request to charge nor interposed a timely objection. We have consistently held, however, that the failure of a trial court to properly charge a jury is grounds for reversal, even though defense counsel failed to object at the appropriate time. State v. Weeks 107 N.J. 396, 410 (1987). “So critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error.” State v. Martin, 119 N.J. 2, 15 (1990); see State v. Weeks, 107 N.J. at 410; State v. Grunow, 102 N.J. 133, 148 (1986). We have recently reiterated the point that “`[c]lear and correct jury charges are essential for a fair trial.'” State v. Cook, 300 N.J. Super. 476, 488 (App. Div. 1996) (quoting State v. Brown, 138 N.J. 481, 522 (1994)). The Supreme Court has said that incorrect instructions of law “are poor candidates for rehabilitation under the harmless error theory.” State v. Weeks, 107 N.J. at 410 (citing State v. Warren, 104 N.J. 571 (1986)).
The accomplice charge in this case suffered from the same infirmities as those noted in State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993). More specifically, the instructions did not inform the jury that even if it concluded that the
principal committed purposeful or knowing murder, the accomplice
could be found guilty of a lesser offense. Id. at 533; see also
State v. Jackmon,
305 N.J. Super 274, 286-87 (App. Div. 1997).
Nor was the jury apprised that defendant could be found guilty of
a lesser degree of aggravated assault than the principal.
Specifically, the jury was not told that parties who participate
in a criminal act may be guilty of different degrees of offense,
depending on their own actions. State v. Bielkiewicz, 267 N.J.
Super. at 533. We have said that “[t]hese principles are
particularly important where multiple participants engage in a
violent attack with the potential for differing states of mind.”
State v. Cook, 300 N.J. Super. at 486. In such cases, “[t]he
liability of each participant for any ensuing crime is dependent
on his own state of mind, not on anyone else's.” State v.
Bridges,
254 N.J. Super. 541, 566 (App. Div. 1992), aff'd in
part, rev'd in part on other grounds,
133 N.J. 447 (1993); see
also State v. Fair,
45 N.J. 77, 95 (1965).
The trial court's instructions fell afoul of these
principles by inextricably linking the criminal liability of the
accomplice with the criminal liability of the principal. The
trial court charged the jury that it could not find defendant
guilty as an accomplice unless it found that he harbored the same
state of mind as the actual perpetrator. The jury was told that
if defendant purposely solicited or aided “someone else in the
commission of the crimes alleged in the indictment, then [it]
must consider it as if he committed those crimes himself.”
Although the trial court gave thorough instructions on all
lesser-included offenses, it did not make specific reference to
those offenses in the context of its charge on accomplice
liability. See State v. Williams,
298 N.J. Super. 430, 440-41
(App. Div.), certif. denied,
150 N.J. 27 (1997); State v.
Bielkiewicz, 267 N.J. Super. at 531. In fact, the court did not
mention accomplice liability in instructing the jury on lesser-included crimes.
The faulty instructions on accomplice liability also tainted
defendant's conviction for first degree robbery. In this case,
defendant was found guilty of robbery which was elevated to the
first degree under N.J.S.A. 2C:15-1b because "in the course of
committing the theft the [principal] [was] . . . armed with . . .
a deadly weapon." Our Supreme Court has recognized that "[i]t is
possible for an accomplice to be guilty of robbery and for his
compatriot to be guilty of armed robbery." State v. White,
98 N.J. 122, 130 (1984). The court's instructions must be carefully
crafted to apprise the jury of this principle. Here, the jury
was never instructed that it could find defendant guilty as an
accomplice of second degree robbery even though the principal was
guilty of armed robbery.
Our examination of the record convinces us that these errors
had the capacity to lead to an unjust result. We recognize that
the trial court told the jury to consider each charge separately
and distinctly, and that accomplice liability may be applicable
to some offenses and not to others. But we are convinced that
this oblique and cryptic reference did not sufficiently explain
liability where differing culpable mental states were possible.
See State v. Jackmon, 305 N.J. Super. at 288. Moreover, as we
have noted, other parts of the trial court's instructions tended
to indicate that accomplice liability must be predicated upon a
finding that the accomplice had the same intent as the principal.
See State v. Bielkiewicz, 267 N.J. Super. at 532.
We also acknowledge that defendant was tried alone. The
jurors were not charged with the task of determining the
codefendants' guilt. Under somewhat similar circumstances, our
Supreme Court in State v. Norman,
151 N.J. 5 (1997), said that
"it [was], at best, a remote possibility that [the jury was]
distracted from [its] task by a conclusion that the principal had
possessed a more culpable intent than the accomplice." Id. at
39. However, the Court's observation must be taken within the
context of the overwhelming evidence presented in Norman
indicating that the defendants shared a murderous intent and that
there were no differences in their mental states. In Norman, the
"[defendants] armed themselves with high-powered guns and set up
an ambush." Id. at 38. When the ambush was uncovered and the
intended victim fled, they pursued, guns in hand, firing numerous
shots at the target. Ibid. "There [was] simply no reasonable
view of the evidence that would permit one to conclude that [the]
defendants fired the shots or aided in the firing of the shots
with anything less than homicide in mind." Ibid.
In contrast, while strong evidence of defendant's guilt was
presented in this case, reasonable persons could differ in their
perceptions concerning his exact role and level of participation
in the criminal events. Ramirez, Torres and Hickman were not
stellar witnesses wholly indifferent to the outcome of the trial.
With appropriate instructions, the jury could reasonably have
found that defendant did not commit the homicidal act and that
his state of mind and level of participation warranted conviction
of a lesser crime than that committed by one or more of his
compatriots. Distinguishable on this basis are State v. Eure,
304 N.J. Super. 469, 472-73 (App. Div.), certif. denied,
152 N.J. 193 (1997); State v. Scherzer,
301 N.J. Super. 363, 472-75 (App.
Div.), certif. denied,
151 N.J. 466 (1997); State v. Williams,
298 N.J. Super. at 440-42; and State v. Rue,
296 N.J. Super. 108,
114-116 (App. Div. 1996), certif. denied,
148 N.J. 463 (1997).
The State urges us to reinstate defendant's conviction for felony murder. Where an appellate court reverses a conviction for a crime into which a lesser offense has been merged, the prosecution may elect not to retry the defendant but instead request reinstatement of the merged count. See State v. Pennington, 273 N.J. Super. 289, 295 (App. Div.), certif. denied, 137 N.J. 313 (1994); State v. Brent, 265 N.J. Super. 577, 590 (App. Div. 1993), rev'd on other grounds, 137 N.J. 107 (1994). We, therefore, consider whether the felony murder conviction can be sustained.
At the close of the evidence, the trial court conducted a
conference with respect to its proposed jury instructions. In
the ensuing colloquy, the prosecutor asked the trial court
whether it intended to charge the jury on the "non-slayer"
affirmative defense set forth in N.J.S.A. 2C:11-3a(3). That
section exonerates a defendant from felony murder if he (1) did
not commit or assist in the commission of the homicidal act, (2)
was not armed with a deadly weapon, (3) had no reasonable ground
to believe that any other participant was armed with such a
weapon, and (4) had no reasonable ground to believe that another
participant intended to engage in conduct likely to result in
death or serious physical injury. Ibid. Defendant's attorney
appeared to be unfamiliar with the defense when asked for his
position. Although the defense had not provided the prosecutor
with written notice of its intent to rely upon the affirmative
defense as required by R. 3:12, defendant's attorney, after
briefly reviewing N.J.S.A. 2C:11-3a(3), asked the court to so
instruct the jury.
Defense counsel devoted most of his summation to arguing
that Hickman, and not defendant, murdered Llorente. We come then
to the perplexing manner in which the attorney confronted the
felony murder doctrine. Curiously, defense counsel expressly
"concede[d] that [defendant was] guilty of [the underlying]
robbery." The attorney added that defendant's participation in
the robbery of Llorente was "the only part of Mr. Ramirez's
testimony that ma[de] sense." Counsel repeated for emphasis that
"[defendant], Ramirez, and Hickman went down to roust a man for
[twenty-five] cents." While emphasizing that Hickman possessed
the knife and committed the fatal stabbing, the attorney also
stressed that defendant was a willing participant in the robbery.
Later in his comments pertaining to the felony murder doctrine,
defense counsel apparently attempted to retract his earlier
concession. Specifically, the attorney argued that defendant and
Ramirez had "le[ft] the scene" and were "around the corner" when
Hickman robbed and stabbed Llorente. However, the damage had
already been done by that point. Indeed, the prosecutor used
defense counsel's concession as the centerpiece of his argument
that, at the very least, defendant was guilty of felony murder.
Defendant argues that he was deprived of the effective
assistance of counsel by reason of his trial attorney's highly
damaging concession. We agree. By admitting defendant's guilt
of robbery, defense counsel assured his conviction for felony
murder. Had defendant been charged with capital murder, his
attorney's concession could perhaps be viewed as a reasonable
strategy designed to avoid the death penalty. While it is true
that by conceding his guilt of felony murder, defendant could
avoid imposition of a separate, consecutive twenty year sentence
on the merged robbery count, nothing in the record suggests that
this was a deliberate tactical or strategic decision. We do not
believe that defendant suffered this error for tactical or
strategic advantage. More likely, counsel's concession
constituted an unthinking blunder. While we have considered
remanding the matter for a hearing to determine what motivated
defense counsel in admitting defendant's guilt of the underlying
robbery, we do not deem it a palliative to explore testimonially
the thoughts of trial counsel or his pertinent conversations with
his now unhappy client. Our experience in that area "suggests
such inquiries demean the attorney-client relationship with no
compensating gain." State v. Macon,
57 N.J. 325, 333 (1971).
Beyond this, to ask counsel and defendant to reconstruct their
conversations and decisions now from the vantage point of twenty-twenty hindsight would be a near impossible task in light of
their competing interests.
We have also considered whether defendant's attorney was
attempting to advance the non-slayer affirmative defense we
described previously. If defense counsel intended to argue that
the defense was applicable, it was a poor argument indeed.
Counsel did not even allude to the defense or the applicable
statute. He did not suggest that defendant was unaware Hickman
was armed with a knife. Nor did he claim that Hickman's
homicidal act was unforeseeable or could not have been reasonably
expected. The very fact that we, experienced appellate judges,
cannot fathom the meaning of the attorney's meandering statements
indicates to us that the jury probably had no greater prescience
or interpretative powers to divine the lawyer's intent. Beyond
this, it is perfectly evident that defense counsel could have
raised the non-slayer affirmative defense without conceding
defendant's participation in the robbery. Surely, counsel could
have pursued a similar strategy without conceding defendant's
guilt.
The law with respect to claims of ineffective assistance of
counsel is both clear and well-settled. Our federal and State
Constitutions grant a criminal defendant the right to assistance
of counsel. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10.
"The benchmark for judging any claim for ineffectiveness must be
whether counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as
having produced a fair result." Strickland v. Washington,
466 U.S. 668, 686,
104 S.Ct. 2052, 2064,
80 L.Ed.2d 674, 692-93
(1984). The Strickland Court set forth a two-prong test to
determine whether "counsel's assistance was so defective as to
require reversal of a [defendant's] conviction." Id. at 687, 104
S.Ct. at 2064, 80 L.Ed.
2d at 693; see United States v. Cronic,
466 U.S. 648, 658,
104 S.Ct. 2039, 2046,
80 L.Ed.2d 657, 667
(1984) ("Absent some effect of challenged conduct on the
reliability of the trial process, the Sixth Amendment guarantee
is generally not implicated."); State v. Fritz,
105 N.J. 42, 58
(1987). "First, the defendant must show that counsel's
performance was deficient." Strickland v. Washington, 466 U.S.
at 687, 104 S.Ct. at 2064, 80 L.Ed.
2d at 693. Second, the
defendant must show that the performance probably prejudiced the
defense. Ibid.
Applying that standard, we conclude that counsel's
representation of defendant was so deficient as to compel a
reversal of defendant's conviction for felony murder. A lawyer
who informs the jury that there is no reasonable doubt but that
his client committed the predicate crime to felony murder has
utterly failed to "subject the prosecution's case to meaningful
adversarial" scrutiny. United States v. Swanson,
943 F.2d 1070,
1074 (9th Cir. 1991) (quoting United States v. Cronic, 466 U.S.
at 659, 104 S.Ct. at 2047, 80 L.Ed.
2d at 667). Counsel's closing
argument was not merely a negligent but harmless misstep in an
attempt to champion his client's cause. The concession that
defendant was a willing participant in the underlying robbery
constituted an abandonment of a significant defense at a critical
stage of the criminal proceedings. We cannot say with utmost
certainty that defendant would have escaped from criminal
liability but for counsel's error. But we stress that the
prosecutor took full advantage of counsel's concession, noting
that in light of the attorney's remark, defendant's guilt of
felony murder was not even open for discussion. We, of course,
are not clairvoyant and cannot know what was in the minds of the
jurors, but we agree with the prosecutor's assessment. Defense
counsel's concession destroyed any lingering possibility that the
jury would acquit the defendant.
In light of our disposition of these issues, we need not
address defendant's remaining arguments.
The judgment of conviction is reversed, and the matter is
remanded for a new trial.