(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).
STATE OF NEW JERSEY V. WINSTON ROACH (A-112-95)
Argued February 13, 1996 -- Decided August 7, 1996
HANDLER, J., writing for a majority of the Court.
This case stems from the gas station robbery and murder of two people in Newark, N.J. Five
individuals were charged with these crimes, including Winston Roach. The evidence of the roles and conduct
of the defendants in the commission of the charged crimes was conflicting. The four defendants were tried
in separate proceedings by the same prosecutor. The issues presented are whether a prosecutor's use of
conflicting theories in separate criminal proceedings violates the rights of a defendant to a fair trial; and
whether the disparity between the sentences of similar co-defendants convicted of the same offenses violates
the sentencing guidelines for uniformity.
Roach was indicted on eleven counts of conspiracy to commit robbery, armed robbery, purposeful
and knowing murder, felony murder, unlawful possession of handguns without a permit, and possession of
weapons for unlawful purposes. The other individuals indicted for these crimes were Billy Jackson, Lawrence
Wright, and Kevin Oglesby. The police obtained conflicting information regarding Roach's participation in
the crime. On July 24, 1991, Roach was questioned by Investigator Carrega of the Essex County
Prosecutor's Office and a detective from the Newark Police. Roach denied any knowledge of the murders
and refused to make a statement. However, on August 16, 1991, Roach was questioned again. After waiving
his Miranda rights, he confessed that he was involved in the robbery but only as a look-out.
At the conclusion of trial, the court charged the jury both on accomplice liability and the theory that
Roach might have been a principal. Roach was convicted of all counts except murder. At sentencing, the
trial court merged all the convictions into the felony murder convictions. It imposed two consecutive life
sentences with a thirty-year parole disqualifier on each term. Roach's total sentence was life with a sixty-year
period of parole ineligibility.
The Appellate Division affirmed Roach's convictions and sentence and the Supreme Court granted
Roach's petition for certification.
On appeal, Roach contends that the prosecutor falsely and unfairly argued to the jury that he was a
principal in a commission of the crimes and, further, presented factually inconsistent positions in the separate
criminal prosecutions of the other co-defendants. Roach asserts that the presentation of false arguments
tainted the jury's deliberations and, by relying on inconsistent positions in separate criminal proceedings
involving the identical crimes and participants, the State engaged in prosecutorial misconduct that requires
the reversal of his convictions.
HELD: The prosecutor's use of conflicting theories regarding the commission of the crimes in separate
criminal proceedings against the co-defendants did not violate Winston Roach's right to a fair trial.
Moreover, the record in this case does not present an acceptable justification of the disparity in
Roach's sentence in light of the sentence imposed on his co-defendant.
1. To justify reversal of a criminal conviction, the prosecutor's conduct must be so egregious that it deprived defendant of a fair trial. Here, the prosecutor's summation reasonably suggested that Roach could have been either the look-out or the shooter. Nothing in the record indicates that false or baseless accusations
were made against Roach by the prosecutor. Therefore, the State's argument included reasonable inferences
to be drawn from the evidence. (pp. 6-7)
2. The prosecutor properly presented different, plausible interpretations of the conflicting evidence. The
evidence supported the differing inferences about Roach's role in the crimes. Although the prosecutor's
arguments presented to Roach's jury were inconsistent with the arguments made at the trials of the co-defendants, the jurors were clearly exposed to evidence that permitted different inferences concerning a basis
for Roach's criminal guilt, including versions that were consistent with the prosecutions of the other co-defendants, namely, that Roach was or may have been a look-out. Moreover, the jury was repeatedly
instructed to render a verdict based on the evidence and not on the remarks of the attorneys. Thus, the
actions by the prosecutor as a whole did not violate fundamental fairness and were no so egregious that
reversal of the convictions would be warranted. (pp. 8-11)
3. Given the reasonable inference to be drawn from the evidence of both accomplice and principal liability,
the trial court properly charged the jury on both theories. A reasonable jury could have found beyond a
reasonable doubt that Roach was either a shooter or a look-out. (p. 12)
4. Detective Carrega's testimony in respect of statements from co-defendants, as it was presented,
"irresistibly" implicated Roach. Nonetheless, Roach's confession created in itself an inescapable inference
that he was a criminal actor, either as an accomplice or, as a principal. The jury could have based its
findings of guilt on Roach's statement without any resort to or reliance on the hearsay testimony. Therefore,
the error does not require reversal of Roach's conviction. (pp. 13-16)
5. Nothing in the record supports a conclusion that Roach's statement was involuntarily made. The trial
court's determinations of voluntariness of a Miranda waiver were amply supported by the record. Moreover,
the trial court determined that the proofs were sufficient to constitute a jury question about whether Roach's
confession was trustworthy. The trial court's instructions clearly advised the jury that it must decide the
issues of fact regarding the value of Roach's statement confession. The jury, in weighing the credibility of
the statement, must have considered the independent corroborative facts that were submitted by the State.
Thus, the evidence and inferences to be drawn from that evidence were sufficient for the jury to determine
that the confession was trustworthy. The trial court's failure, therefore, specifically to charge the jury that it
must find corroboration was not harmful error. (pp. 16-20)
6. The trial court's findings of the aggravating and mitigating factors were amply supported by the record;
the trial court gave extensive reasons for its sentencing decision; and the court followed proper procedures
and standards in imposing consecutive, not concurrent, sentences. Thus, the sentences imposed on Roach
conformed to all sentencing guidelines and do not reflect any abuse of discretion. (pp. 20-23)
7. Uniformity is one of the major goals in sentencing and disparity may invalidate an otherwise sound and
lawful sentence. The record strongly indicates that dissimilar sentences were imposed on similar defendants.
The disparity between the sentences is not minimal; Roach received thirty additional years in prison.
Therefore, there should be a remand to determine whether the disparity is justifiable. The record does not
present an acceptable justification of Roach's sentence in light of the sentence imposed on his co-defendant.
A sentencing court must exercise a broader discretion to obviate excessive disparity. The trial court must
determine whether the co-defendant is identical or substantially similar to the defendant in respect of all
relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the
other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the
co-defendant. If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity. Sentencing
based on such added considerations will accommodate the basic discretion of a sentencing court to impose a
just sentence on the individual defendant in accordance with the sentencing guidelines while fulfilling the
court's responsibility to achieve uniform sentencing when possible. (pp. 23-27)
Judgment of the Appellate Division is AFFIRMED in part and REVERSED in part.
JUSTICE COLEMAN, concurring in part and dissenting in part, in which JUSTICE GARIBALDI
joins, concurs in the decision to affirm Roach's conviction but dissents from the majority's conclusion that
there should be remand to determine whether Roach's sentence is unjustifiably disparate when compared
with that of co-defendant Jackson. Justice Coleman disagrees that a reviewing court, in the name of
correcting sentencing disparity, should reduce one co-defendant's sentence, though that sentence complied
with all appropriate sentencing guidelines, to make it consistent with another co-defendant's lesser sentence,
which the trial court believes was erroneously imposed. According to Justice Coleman, the sentences are not
unjustifiably disparate as a matter of law because Roach's sentence is not excessive; therefore, there is no
basis for a remand. Nonetheless, even where unjustifiable disparity is found to exist, the better way to
correct it is through the court's supervisory power, rather than its adjudicatory power, on a case-by-case
basis.
JUSTICES POLLOCK, O'HERN and STEIN join in JUSTICE HANDLER's opinion. JUSTICE
COLEMAN filed a separate opinion dissenting in part and concurring in part in which JUSTICE
GARIBALDI joins.
SUPREME COURT OF NEW JERSEY
A-
112 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WINSTON ROACH,
Defendant-Appellant.
Argued February 13, 1996 -- Decided August 7, 1996
On certification to the Superior Court,
Appellate Division.
Joseph S. Murphy argued the cause for
appellant.
Michael J. Williams, Deputy Attorney General,
argued the cause for respondent (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
Jay L. Wilensky, Assistant Deputy Public
Defender, argued the cause for amicus curiae,
Public Defender (Susan L. Reisner, Public
Defender, attorney).
The opinion of the Court was delivered by
HANDLER, J.
This case stems from the gas station robbery and murder of two people in Newark, New Jersey. Five individuals were charged
with these crimes. The evidence of the roles and conduct of the
defendants in the commission of the charged crimes was
conflicting. Four defendants were eventually tried in separate
proceedings by the same prosecutor.
The defendant in this case was convicted by a jury of felony
murders, aggravated manslaughters, armed robberies, conspiracy,
and possession of weapons for unlawful purposes. He was
sentenced to two consecutive life terms with periods of parole
ineligibility aggregating sixty years. Another defendant was
tried before and sentenced by a different judge. He received
concurrent life terms with parole ineligibility of thirty years.
Among the important issues this case presents are: (1)
whether a prosecutor's use of conflicting theories in separate
criminal proceedings violates the rights of a defendant to a fair
trial; and (2) whether the disparity between the sentences of
similar co-defendants convicted of the same offenses violates the
sentencing guidelines for uniformity.
The defendant, Winston Roach, was indicted on eleven counts of conspiracy to commit robbery (second degree), armed robbery (first degree), purposeful and knowing murder, felony murder, unlawful possession of handguns without a permit, and possession of weapons for unlawful purposes (second degree). The other individuals indicted for these crimes were Billy Jackson,
Lawrence Wright, and Kelvin Oglesby. Gregory Tucker was also
indicted but the charges against him were later dismissed.
According to the State, on the evening of May 30, 1991, at
approximately 10:15 P.M., Jose Lavoura and Carlos Suarez were
preparing to close the Sunoco Gas station where they worked in
Newark. At the same time, Tracy Gilliam drove into the station
to buy gas and waited in his car for an attendant. He noticed
that two African-American men were inside the station talking to
two Latino men. About ten minutes later, Gilliam heard gunshots.
Frightened, Gilliam immediately left the station. As he drove
away, Gilliam "glanced back through his mirror" and saw "two
[African-American] individuals running out" with Suarez running
after them. Gilliam was unable to identify the two African-American individuals.
Milton Shackleford and Charles Green also heard the
gunshots. Both were in a store across the street from the gas
station. After hearing the shots, they went outside and saw
Suarez and two African-American men running away. He also
recognized co-defendant Lawrence Wright as one of the African-American men. According to Shackleford, the two African-American
men got into a yellow and brown Cutlass Supreme automobile car
that was parked on the corner of Lyons and Wainwright Streets.
Suarez died from gunshot wounds.
When the Newark police arrived sometime between 11:00 and
11:30 P.M., they found Lavoura dead from a gunshot wound. There
was $240 in Lavoura's pockets and $52 on top of a small desk.
Between $1300 and $1400 was missing from the receipts. There
were bullet fragments and live rounds from .22 and .25 caliber
weapons in the office. Forensic reports showed that Lavoura died
from .22 caliber gunshot wounds and Suarez died from .22 and .25
caliber gunshot wounds. There were no bullet fragments found
outside the station office or on the street.
On June 25, 1991, Lawrence Wright surrendered to the Newark
police and was arrested. Police identified three other suspects:
Winston Roach, Billy Jackson, and Gregory Tucker.
On July 24, 1991, Investigator Louis Carrega of the Essex
County Prosecutor's office and Detective Charles Conte of the
Newark police questioned defendant. They told defendant that he
was a suspect. Defendant was also Mirandized. Defendant denied
any knowledge of the murders and refused to make a statement.
On August 8, 1991, Joseph Smith, a prison informant, told
police that Wright said Jackson was the "shooter of both
individuals."
On August 13, 1991, the police questioned Kelvin Oglesby.
Oglesby implicated Wright and Jackson as participants in the
robbery and shootings. Oglesby said that he and defendant were
unaware of the robbery and shootings. Oglesby said that Jackson
shot defendant after they argued about what had happened.
On August 15, 1991, Jackson was arrested in Bridgeton, New
Jersey. Jackson confessed that he and defendant shot both
victims. Before his trial, Jackson recanted and alleged that
Wright was the sole shooter.
On August 16, 1991, Investigator Carrega and Detective Conte
again questioned defendant. They told him that he was "viewed as
a suspect in the murders." At that time, he was in police
custody on an unrelated offense. He waived his Miranda rights.
Defendant confessed that he was involved in the robbery but
only as a look-out. Defendant told police that Wright and
Jackson entered the gas station, and that Jackson told him that
he shot both victims. Defendant also stated that Jackson carried
a .22 automatic chrome gun with a clip and that Wright carried a
.25 caliber weapon. Defendant gave police a detailed statement.
At trial, defendant unsuccessfully moved to suppress the
statement.
Defendant elected not to testify and presented no witnesses.
Shackleford, Gilliam, and Investigator Carrega testified for the
State. Neither Shackleford nor Gilliam was able to identify
defendant or to connect him with the crimes. Investigator
Carrega testified about his August 16, 1991, interview with
defendant and read defendant's entire statement into the record.
The court charged the jury about "both accomplice liability
and the theory that the defendant might have been a principal."
Defendant was convicted of all counts except murder. The
trial court at sentencing merged all the convictions into the
felony murder convictions. As noted, it imposed two consecutive
life sentences with a thirty-year parole disqualifier on each
term. Defendant's total sentence was life with a sixty-year
period of parole ineligibility.
On appeal, defendant raised numerous claims of error. The
appellate court affirmed defendant's convictions and sentence.
Defendant petitioned for certification, which this Court granted.
141 N.J. 573 (1995). The Court granted the motion of the Public
Defender for leave to appear as amicus curiae.
Defendant contends that the prosecutor falsely and unfairly argued to the jury that defendant was a principal in the commission of the crimes and, further, presented factually inconsistent positions in the separate criminal prosecutions of the other co-defendants. Defendant asserts that the presentation of false arguments tainted the jury's deliberations and, by relying on inconsistent positions in separate criminal proceedings involving the identical crimes and participants, the State engaged in prosecutorial misconduct that requires the reversal of defendant's convictions.
Defendant contends that the prosecutor's argument in summation to the jury that defendant was the shooter was wholly unsupported by the evidence.
To justify reversal of a criminal conviction, the prosecutor's conduct must "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Bucanis, 26 N.J. 45, 56, cert.
denied,
357 U.S. 910,
78 S. Ct. 1157,
2 L. Ed.2d 1160 (1958).
The misconduct must be "so egregious that it deprived defendant
of a fair trial." State v. Ramseur,
106 N.J. 123, 322 (1987).
Not every instance of misconduct in a prosecutor's summation
will require a reversal of a conviction. There must be a
palpable impact. State v. Smith,
27 N.J. 433, 460 (1958).
Although prosecutors may suggest legitimate inferences from the
record, they may not go beyond the facts before the jury. See
State v. Perry,
65 N.J. 45, 48 (1974); State v. Farrell,
61 N.J. 99, 103 (1972). See also State v. Williams,
113 N.J. 393, 451-52
(1988) (noting that prosecutor's use of extraneous information
was deliberate attempt to "highlight victim's virtues in order to
inflame the jury").
The prosecutor's summation reasonably suggested that
defendant could have been either the lookout or the shooter. The
jury could have found defendant guilty as a principal if it
discredited defendant's testimony and considered how Shackleford
and Gilliam could not clearly say that defendant was only a
lookout.
Nothing in the record indicates that false or baseless
accusations were made against defendant by the prosecutor. We
conclude that the State's argument included reasonable inferences
to be drawn from the evidence.
Defendant also alleges prosecutorial misconduct in presenting alternative theories at the trials of his co-defendants. Defendant specifically points out that the State argued that Wright and Jackson were the two shooters at the trials of Wright, Oglesby, and Jackson. The State denies that it presented mutually exclusive, false, or misleading evidence. It contends that the evidence permits two factual scenarios: the shooters were either Jackson and Wright or Jackson and defendant.
This is not a case where the prosecutor destroyed the credibility of one witness to convict one defendant and then used that same witness to convict a co-defendant for the same crime. See, e.g., Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S. Ct. 3333, 92 L. Ed.2d 738 (1986). Nor is this a case where the prosecutor improperly argued facts that were unsupported by the evidence. Nichols v. Collins, 802 F. Supp. 66, 75 (S.D. Tex. 1992) (holding in case, in which defendant challenged his murder conviction and death sentence on ground that state's conflicting theories in the trial of his accomplice constituted a denial of due process, that state may be "constitutionally estopped from obtaining a fact finding in one trial and seeking and obtaining an inconsistent fact finding in another trial"), habeas corpus denied sub nom, Nichols v. Scott, 69 F.3d 1255, 1265 & n.17, 1273-74 (5th Cir. 1995), cert. denied sub nom Nichols v. Johnson, ___ U.S. ___, ___ S. Ct. ___, __ L. Ed.2d ___, 64 SLW 3855 (June 24, 1996). Furthermore, the
prosecutor did not convict defendant with a factual determination
that he had formally disavowed at other trials. See Jacobs v.
Scott,
31 F.3d 1319, 1322-23 (5th Cir. 1994) (ruling in capital
case that prosecutor's statements at subsequent trial of another
defendant that the defendant was not the triggerman, was not in
the nature of "newly discovered evidence," even though State
presented inconsistent theories), cert. denied, __ U.S. __,
115 S. Ct. 711,
130 L. Ed.2d 618 (1995).See footnote 1
A prosecutorial decision to argue facts that are not in
evidence or that amount to baseless accusations is impermissible.
State v. Perry, supra, 65 N.J. at 48. The record in this case
does not demonstrate that the prosecutor engaged in such unfair
or illegal tactics, see State v. Ramseur, supra, 106 N.J. at 446;
made inflammatory remarks, see State v. Johnson,
120 N.J. 263,
296 (1990); or deliberately made unsupportable arguments to try
to mislead the jury, see State v. Acker,
265 N.J. Super. 351,
357-58 (App. Div.) (noting prosecutor's summation included
baseless accusations and was so egregious as to warrant reversal
and a new trial), certif. denied,
134 N.J. 485 (1993).
The prosecutor properly presented different, plausible
interpretations of the conflicting evidence. Although the
prosecutor argued in the three separate trials of the co-defendants that Jackson and Wright were the shooters, the
evidence did not conclusively establish that Jackson and Wright
were the actual shooters. The evidence supported the differing
inferences about defendant's role in the crimes. As a result,
the prosecutor did not ignore his duty to seek justice nor did he
pursue a tactic compromising the integrity of the courts in order
to obtain a conviction. Within the bounds set by the available
inferences to be drawn from the evidence, the prosecutor is
entitled to present the strongest case against each defendant
provided the State has not compromised that evidence or engaged
in representations on which the courts have relied or that have
prejudiced the defendant.
The record here indicates that the prosecutor's arguments
presented to defendant's jury were inconsistent with the
arguments made at the trials of the co-defendants. Nevertheless,
the jurors were clearly exposed to evidence that permitted
different inferences concerning a basis for defendant's criminal
guilt, including versions that were consistent with the
prosecutions of the other co-defendants, namely that defendant
was or may have been a lookout. Moreover, they were repeatedly
instructed to render a verdict based on the evidence and not on
the remarks of the attorneys. Further, the prosecutor's
presentation of evidence did not prejudice defendant. Questions
asked by the jury strongly suggest that defendant's conviction
was based on accomplice and not principal liability.See footnote 2 Defense
counsel acknowledged that point himself at sentencing.See footnote 3
We find that the actions by the prosecutor as a whole did
not violate fundamental fairness and were not so egregious that
reversal of the convictions would be warranted.
Defendant raises several issues involving various trial errors relating to instructions to the jury and several evidentiary rulings that he claims resulted in the improper admission of evidence, including his confession. Defendant further contends that the evidence of his guilt as an accomplice was not competent or adequate to sustain his conviction.
In characterizing defendant as a shooter, the State relied
on the inconsistency between his statement that he was a lookout
and the testimony of Shackleford regarding the number of men he
saw running from the station. According to the prosecutor, if
defendant's statement that he was a lookout is true, Shackleford
would have seen him. If the statement is not true, defendant
could have been the second African-American man and therefore the
second shooter. The evidence supports the State's use of these
inferences to posit its alternative theories.
A defendant, moreover, may be found guilty of murder even if
jurors cannot agree on whether the defendant is a principal,
accomplice, or a co-conspirator. State v. Brown,
138 N.J. 481,
520-522 (1994). When a defendant may be found guilty either as a
principal actor or as an accomplice, the jury should be
instructed about both possibilities. State v. Morales,
111 N.J.
Super. 521, 526 (App. Div. 1970), certif. denied,
57 N.J. 433
(1971). Given the reasonable inferences to be drawn from the
evidence of both accomplice and principal liability, the trial
court properly charged the jury on both theories. State v.
Martin,
119 N.J. 2, 9 (1990).
We conclude that a reasonable jury could have found beyond a
reasonable doubt that defendant was either a shooter or a
principal. Therefore, we conclude that the jury was not
improperly instructed.
Defendant and the Public Defender contend that hearsay inferences arising out of the direct examination of Investigator Carrega violated defendant's constitutional right of confrontation.
Carrega testified that only after speaking to several people did he meet with defendant and tell him that he was a suspect in the investigation. Carrega testified that he received information from Joseph Smith, a jailhouse informer, and from co-defendants Oglesby and Jackson on their arrests. Under further questioning by the prosecutor, Carrega then stated that he met again with defendant and advised him that he was a suspect in the case.
It is well-settled that the admission of the statement of a co-defendant at a joint trial that implicates defendant without the right of cross-examination constitutes prejudicial error. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed.2d 476 (1968); State v. Young, 46 N.J. 152 (1965). Disclosure to the jury, moreover, of inculpatory information supplied by a co-defendant who did not testify deprives a defendant of his constitutional right to confront a witness. State v. Bankston, 63 N.J. 263, 271 (1973) (noting detective's testimony that arrest of the defendant following his receipt of information from an informant created "inescapable" hearsay inference); see also State v. Niesbbalski, 82 N.J.L. 177, 179 (S. Ct. 1912) (noting detective's testimony created by "necessary inference" the
conclusion that complaint against the defendant was based on
information from co-defendants).
Although Carrega did not specifically repeat what any of
those named people told him, his testimony by necessary inference
implicated defendant. Compare State v. Bowens,
219 N.J. Super. 290, 299-300 (App. Div. 1987) (noting police officer specifically
referred to the defendant and the time of the offense based on
hearsay report) with State v. Long,
137 N.J. Super. 124, 133-34
(App. Div. 1975) (noting officer's testimony that he went to the
scene of the arrest because he was told by people at that address
about drug dealing), certif. denied,
70 N.J. 143 (1976). In
State v. Bankston, supra, the Court determined that a police
officer's testimony that he "approached a suspect or went to the
scene of the crime . . . upon information received" does not
violate the hearsay rule. 63 N.J. at 268. The Court further
determined that "when an officer becomes more specific by
repeating what some other person told him concerning a crime by
the accused," that testimony violates both the hearsay rule and
the defendant's Sixth Amendment right of confrontation. Id. at
268-269.
The State contends that because Carrega did not testify
that co-defendants had actually accused defendant, no prejudice
arose. Despite that contention, it is the "creation of the
inference, not the specificity of the statements made," that
determines whether the hearsay rule was violated. State v.
Irving,
114 N.J. 447 (1989). Here, Carrega testified to a number
of statements from co-defendants. He also discussed the trail of
his investigation that led to the arrests of co-defendants
Wright, Oglesby, and Jackson. He twice accused or characterized
defendant as a "suspect" based on the information obtained from
the co-defendants. That testimony, as it was presented,
"irresistibly" implicated defendant. See State v. Thomas,
168 N.J. Super. 10, 15 (App. Div. 1979) (noting prosecutor's step-by-step questioning of detective's investigation based on interviews
with witnesses was contrary to hearsay rule and violated
defendant's right to confront the witnesses against him). As the
Court found in State v. Irving,
114 N.J. 427, 445-46 (1989), the
police officer could simply have testified that he questioned
defendant "based on information received."
Defendant and the Public Defender contend that the evidence
prejudiced defendant's right to a fair trial. "The question is
whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction."
Bankston, supra, 63 N.J. at 273 (citing Fahy v. Connecticut,
375 U.S. 85, 86-87,
84 S. Ct. 229, 230,
11 L. Ed.2d 171, 173
(1963)). "The answer to that question turns on whether the error
was harmless considering the other evidence of guilt." State v.
Baker,
228 N.J. Super. 135, 140 (App. Div. 1988).
In this case, defendant's confession created in itself an
inescapable inference that he was a criminal actor, either as an
accomplice or, possibly, as a principal. Defendant admitted to
being at the crime scene. He admitted to planning the robbery,
being a lookout, knowing about the guns, and knowing the details
of the shooting. He also stated that he asked co-defendant
Jackson "why they did not get the money." The jury could have
predicated its findings of guilt upon his statement without any
resort to or reliance on the hearsay testimony. Therefore, the
error does not require reversal of defendant's conviction.
Defendant contends that his confession should have been suppressed on the grounds that his confession and waiver of Miranda rights were involuntary. He specifically argues that police obtained the waiver and confession by deceiving him into believing that they sought his statement only as a witness and not as a defendant, and, therefore, he did not make a knowing, intelligent, and voluntary waiver of his rights.
At the suppression hearing, the trial court found that defendant understood his Miranda rights, that he voluntarily waived those rights, and that he voluntarily made his statement. The court expressly noted that defendant may have given his statement to police believing that it was exculpatory and hoping that he would be a witness. The court held that defendant's statement was not the product of deceit or suggestion.
A determination of voluntariness depends on an "evaluation of the totality of all the surrounding circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed.2d 854, 862 (1973); State v. Reed, 133 N.J. 237,
256, 258 (1993); State v. DiFrisco,
118 N.J. 253, 257 (1990);
State v. Starling,
188 N.J. Super. 127, 131 (Law Div. 1983),
aff'd,
207 N.J. Super. 79 (App. Div. 1985), certif. denied,
103 N.J. 481 (1986). The mere fact that promises are made to a
defendant does not render the statement involuntary. State v.
Starling, supra, 188 N.J. Super. at 131. It depends on the
circumstances of a particular case. Ibid. (citing Brady v.
United States,
397 U.S. 742, 748,
90 S. Ct. 1463, 1469,
25 L. Ed.2d 747, 757 (1970)).
Nothing in the record supports a conclusion that defendant's
statement was not the "product of `an essentially free and
unconstrained choice.'" State v. Pickles,
46 N.J. 542, 577
(1966). This is not a case where a defendant's inculpatory
statement was "extracted by basically unfair means." See, e.g.,
State v. Miller,
76 N.J. 392, 405 (1978) (finding confession
voluntary notwithstanding police officer's appeal to suspect as a
friend by telling him he needed medical help, not punishment);
State v. Pickles, supra, 46 N.J. at 577 (finding confession not
voluntary when pregnant defendant was "easy prey to interrogative
pressure" by being questioned alone after son's funeral).
Moreover, his credibility was undermined by clear inconsistencies
with other co-defendants' statements. Furthermore, his
admissions to the police on July 24, 1991, suggest he was aware
that he was a suspect. Also, defendant had extensive experience
with the criminal justice system both as a juvenile and as an
adult, see infra at __ (slip op. at 20). See State v. Starling,
supra, 188 N.J. Super. at 133 (observing that defendant was not a
"babe in the woods.").
The record below establishes that the trial court's
determinations of voluntariness and of waiver were amply
supported by the record. Reviewing the totality of the
circumstances in this case, we find that defendant's right to a
fair trial was not violated because his statement was not
obtained by deceit or promises of benefit.
Defendant contends that the trial court committed error by not directing an acquittal at the end of the case. He specifically questions whether a jury could infer that he was a principal.
The trial court identified particular facts that, when taken together, suggest defendant was a shooter based on how he knew the circumstances of the shooting and "perhaps the nature of the injuries that were caused." First, defendant knew Wright, who was one of the two shooters, defendant lived near the gas station, and defendant knew what the getaway car looked like. Second, defendant knew that one victim was shot in the head in the office area and that the other victim was shot while running away. Third, defendant's statement suggested that he knew two different caliber weapons were used and that there were two shooters. Further, defendant knew that some money was not actually taken. The trial court determined that the State's
proofs were sufficient to constitute a jury question about
whether defendant's confession was trustworthy.
Defendant further contends that there was insufficient
corroboration of his confession and that the trial court erred in
failing to submit an instruction on corroboration.
Defendant has failed to demonstrate that his statement was
insufficiently corroborated. This is not a case where the Court
must be duly concerned with the danger that a defendant will be
convicted "out of his own mouth" of a crime committed by another.
State v. Johnson, supra,
31 N.J. 489, 502 (1960); see State v.
DiFrisco,
118 N.J. 253, 293 (1990) (Handler, J., concurring in
part and dissenting in part). Nor is this a case where a
defendant's confession is "otherwise deemed unworthy of belief."
Lego v. Twomey,
404 U.S. 477, 486,
92 S. Ct. 619, 625,
30 L. Ed.2d 618, 626 (1972).
The entire thrust of the defense was its argument that the
statement was untrue. The trial court's instruction clearly
advised the jury that it must decide the issues of fact regarding
the value of defendant's statement confession. The jury, in
weighing the credibility of the statement, must have considered
the independent corroborative facts, both direct and
circumstantial, that were submitted by the State. See State v.
DiFrisco, supra, 118 N.J. at 274 (noting that issues of fact
regarding corroboration of defendant's confession are properly
resolved by the jury).
We are satisfied that the evidence and inferences to be
drawn from the evidence were sufficient for the jury to determine
that the confession was trustworthy. We conclude that the trial
court's failure, therefore, specifically to charge the jury that
it must find corroboration was not harmful error.
The trial court sentenced defendant and co-defendant Wright to the same consecutive sentences. A different court sentenced co-defendant Jackson to two concurrent life sentences. Defendant alleges that he and the two other defendants were all found guilty of identical charges, had similar criminal histories,See footnote 4 and were assessed the same aggravating and mitigating factors. Moreover, he asserts, both Wright and Jackson were found to be without remorse and were convicted as shooters. He contends that
in these circumstances the disparity between these sentences
renders his sentence invalid.
An appellate court should disturb the sentence imposed by
the trial court only in situations where the sentencing
guidelines were not followed, the aggravating and mitigating
factors applied by the trial court are not supported by the
evidence, or applying the guidelines renders a particular
sentence clearly unreasonable. State v. Roth,
95 N.J. 334, 364-65 (1984). Only when the facts and law show "such a clear error
of judgment that it shocks the judicial conscience" should a
sentence be modified on appeal. Id. at 363-64.
In sentencing defendant, the trial court conformed to all
sentencing guidelines and followed proper sentencing procedures.
Further, the trial court's findings of the aggravating and
mitigating factors were amply supported by the record. State v.
O'Donnell,
117 N.J. 210, 216 (1989). Moreover, the trial court
gave extensive reasons for its sentencing decision. State v.
Kruse,
105 N.J. 354, 363 (1987). The trial court acknowledged
defendant's role as an accomplice, but determined that the
conviction based on accomplice liability did not warrant any
greater leniency.
The court followed proper procedures and standards in
imposing consecutive, not concurrent, sentences. N.J.S.A. 2C:44-5a. Consecutive sentences are not an abuse of discretion when
the crimes involve multiple victims and separate acts of
violence. See State v. Louis,
117 N.J. 250, 254 (1989)
(rejecting consecutive sentencing that was based on cruelty and
inhumanity of crime rather than independent nature of victims or
violent acts); State v. Ghertler,
114 N.J. 383, 392 (1983)
(affirming consecutive sentencing that was based on independent
nature of multiple criminal acts). Defendant's sentences were
based on two convictions for felony murder. The court's findings
suggest that the deaths of the two victims were separate acts of
violence caused by distinct types of conduct. Even if the
murders occurred in close sequence, consecutive sentencing is not
improper. State v. Brown, supra, 138 N.J. at 560. The court
also did not believe that there should be any difference between
the punishments meted out to Jackson or defendant despite the
differences in their roles in the crimes or because defendant was
an accomplice. See State v. Rogers,
124 N.J. 113, 115-16 (1991)
(ruling that defendant accomplice who supplied the guns and drove
getaway car could be sentenced to two consecutive thirty-year
mandatory terms for felony murder convictions). Furthermore,
although under State v. Yarbough,
100 N.J. 627, 646 (1985), cert.
denied,
475 U.S. 1014,
106 S. Ct. 1193,
89 L. Ed.2d 308 (1986),
a shorter second term should generally be imposed "when
consecutive terms are imposed for the same offense," that
guideline does not "apply in cases in which sentences [are]
mandated by the Code." State v. Brown, supra, 138 N.J. at 560.
Felony murder convictions result in mandated sentences of thirty-years imprisonment. N.J.S.A. 2C:11-3b.
We thus conclude that the sentences imposed on defendant
conform to all sentencing guidelines and do not reflect any abuse
of discretion. The next issue is whether in light of the
sentences imposed on the co-defendant the sentences received by
defendant may be invalid on grounds of disparity or non-uniformity.
This Court has consistently stressed uniformity as one of
the major sentencing goals in the administration of criminal
justice. Achieving greater uniformity in sentencing is a firm
judicial commitment. "[T]here can be no justice without a
predictable degree of uniformity in sentencing." State v. Hodge,
95 N.J. 369, 379 (1984). In State v. Roth, supra,
95 N.J. 334,
this Court emphasized the importance of uniform and proportionate
sentencing in light of the sentencing standards instituted by the
Legislature in the Code of Criminal Justice. "The central theme"
of our sentencing jurisprudence is the exercise by courts of "a
structured discretion designed to foster less arbitrary and more
equal sentences." Id. at 345. The Court struggles continuously
to overcome non-uniformity in sentencing: "We must not forget
that the driving force behind sentence reform was the tragic
disparity in sentences inflicted upon defendants under the old
model." Hodge, supra, 95 N.J. at 379 (citation omitted).
Disparity may invalidate an otherwise sound and lawful
sentence. See, e.g., State v. Hicks,
54 N.J. 390, 392 (1969)
(reducing defendant's sentence to that imposed on codefendant
whose participation in the homicide was greater than
defendant's); State v. Lee,
235 N.J. Super. 410, 416 (App. Div.
1989) (remanding for a disparity determination involving
comparative severity of sentences); State v. Hubbard, supra,
176 N.J. Super. 174, 175 (1980) (stating that where defendant found
guilty of murder was sentenced to life imprisonment but co-defendant who was the actual shooter pled non vult to murder and
received term of eight to ten years, resentencing hearing
necessary to determine whether there was a "good cause" basis for
disparity).
We acknowledge that "[a] sentence of one defendant not
otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." Hicks, supra, 54 N.J. at 391.
However, although the sentence imposed on defendant falls within
the statutory limits mandated for the offense, "there is an
obvious sense of unfairness in having disparate punishments for
equally culpable perpetrators." State v. Hubbard,
176 N.J.
Super. 174, 175 (Resentencing Panel 1980) (citing State v.
Whitehead,
159 N.J. Super. 433 (Law Div. 1978), aff'd,
80 N.J. 343 (1979)). The purpose of the guidelines is to promote
fairness and public confidence in the "even handed justice of our
system." Hicks, supra, 54 N.J. at 391. The question therefore
is whether the disparity is justifiable or unjustifiable.
The defendant's sentence would appear to be a "paradigmatic
example of non-uniformity." State v. Pillot,
115 N.J. 558, 576
(1989). The record strongly indicates dissimilar sentences
imposed on similar defendants. Moreover, the disparity between
the sentences is not minimal -- it is huge: thirty additional
years in prison. We, therefore, conclude that there should be a
remand to determine whether that disparity is justifiable.
The record does not present an acceptable justification of
defendant's sentence in light of the sentence imposed on his co-defendant. The trial court was cognizant of the sentences
imposed on co-defendant Jackson and defendant but felt that it
could disregard the sentences imposed on the co-defendant. The
court explained that it had the discretion to sentence defendant
more severely than the co-defendant because it had "lateral
jurisdiction" and considered the co-defendant to have received "a
very lenient sentence."
The court's explanation implies that it considered defendant
and the co-defendant to be "similar" but that they did not
deserve "similar sentences." A disparate sentence based solely
on those reasons is not justifiable. In such circumstances, we
hold that the sentencing court must exercise a broader discretion
to obviate excessive disparity. The trial court must determine
whether the co-defendant is identical or substantially similar to
the defendant regarding all relevant sentencing criteria. The
court should then inquire into the basis of the sentences imposed
on the other defendant. It should further consider the length,
terms, and conditions of the sentence imposed on the co-defendant. If the co-defendant is sufficiently similar, the
court must give the sentence imposed on the co-defendant
substantive weight when sentencing the defendant in order to
avoid excessive disparity. Sentencing based on such added
considerations will accommodate the basic discretion of a
sentencing court to impose a just sentence on the individual
defendant in accordance with the sentencing guidelines while
fulfilling the court's responsibility to achieve uniform
sentencing when that is possible.
We acknowledge the view expressed by the dissent that a
trial court's sentencing discretion is bounded only by the
standards set forth in the Code. Post at __ (slip op. at 5).
Clearly, the genuine concerns over sentencing disparity are
addressed by enlightened judges consistently applying the Code's
standardized sentencing principles and procedures. Nevertheless,
we recognize that some disparity in sentencing is inevitable in
the administration of criminal justice. Realistically,
sentencing cannot be monolithic when individual judges, no matter
how competent and conscientious, impose sentences on individual
defendants arising from the commission of separate crimes. If,
however, it is feasible to avoid or reduce disparity in
circumstances such as presented in this case through the trial
and/or sentencing of similar defendants by the same judge, that
should be undertaken. See, e.g., State v. Pillot, supra, 115
N.J. at 576. If those procedural avenues are not available, then
sentencing judges should take into account and give substantive
weight to the sentences imposed on similar co-defendants. The
overarching goals of uniformity demand that reasonable measures
be undertaken to achieve that end.
We affirm in part and reverse in part.
JUSTICES POLLOCK, O'HERN and STEIN join in JUSTICE HANDLER's opinion. JUSTICE COLEMAN filed a separate opinion dissenting in part and concurring in part in which JUSTICE GARIBALDI joins.
SUPREME COURT OF NEW JERSEY
A- 112 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WINSTON ROACH,
Defendant-Appellant.
COLEMAN, J., concurring in part and dissenting in part.
I dissent from the majority's conclusion that there should
be a remand to determine whether Roach's sentence is
unjustifiably disparate when compared with that of co-defendant
Jackson. Ante at ____ (slip op. at 25).
I begin with the recognition that "[t]he paramount goal of
sentencing reform [under the Code] was greater uniformity."
State v. Roth,
95 N.J. 334, 369 (1984).
State v. Yarbough,
100 N.J. 627 (1985), cert. denied,
475 U.S. 1014,
106 S. Ct. 1193,
89 L. Ed.2d 308 (1986), sought to
make sentencing uniform by requiring that the aggregate custodial
sentence imposed at one time for multiple offenses should not
"exceed the sum of the longest terms (including an extended term,
if eligible) that could be imposed for the two most serious
offenses." Id. at 644. Yarbough further instructs that "there
can be no free crimes in a system for which the punishment shall
fit the crime." Id. at 643. Although the Yarbough outer limit
rule on consecutive sentences was superseded by L. 1993, c. 223,
§ 1, effective August 5, 1993, the majority maintains that
Roach's consecutive life terms with sixty years of parole
ineligibility do not violate the Code or any sentencing
guidelines. The effect of concurrent sentences in this case
would be to give defendant a free murder, the essence of which
was condemned by both this Court in Yarbough and the Legislature.
The thrust of defendant's argument is that his sentence is
more severe than that of Jackson. When two or more codefendants,
such as Roach and Jackson, have engaged in substantially similar
criminal conduct but are sentenced separately by different
judges, the sentence of one defendant that otherwise adheres to
the Code and sentencing guidelines, as has occurred here, does
not become excessive or erroneous merely because the co-defendant's sentence is lighter. State v. Tyson,
43 N.J. 411,
417 (1964), cert. denied,
380 U.S. 987,
85 S. Ct. 1359,
14 L. Ed.2d 279 (1965); State v. Brunetti,
114 N.J. Super. 57, 62 (App.
Div.), certif. denied,
58 N.J. 340 (1971).
When disparity of sentence is alleged, the scope of
appellate review is identical to that applied when excessiveness
of sentence is asserted. State v. Tango,
287 N.J. Super. 416,
422 (App. Div.), certif. denied, ___ N.J. ___ (1996); State v.
Lee,
235 N.J. Super. 410, 414 (1989). The test "is not whether a
reviewing court would have reached a different conclusion on what
an appropriate sentence should be; it is rather whether, on the
basis of the evidence, no reasonable sentencing court could have
imposed the sentence under review." State v. Ghertler, 114 N.J.
383, 388 (1989). I believe the majority has violated that
standard of review.
That Roach and Jackson were not sentenced by the same judge
is not a sufficient basis for declining to adhere to the proper
standard of review. I agree that all defendants in a single
indictment, or a series of indictments relating to a specific
criminal episode, should be sentenced by the same judge. I
disagree, however, that a reviewing court in the name of
correcting sentence disparity should reduce one co-defendant's
sentence, though that sentence complied with all appropriate
sentencing guidelines, to make it consistent with another co-defendant's lesser sentence, which the trial court believes was
erroneously imposed. My review of the record convinces me that
the judge who sentenced defendant was correct when she concluded
that Jackson's sentence was too lenient and perhaps the result of
a mistake that should not be compounded. In view of that
sentencing record, there is nothing more the trial court could
have been expected to do; it had very little discretion.
The judges in the present case were limited with respect to
the sentence they could impose; their only options were either a
concurrent or a consecutive term on the second felony murder.
The statutory minimum sentence for felony murder is thirty years
without parole eligibility. N.J.S.A. 2C:11-3b. Although the
maximum sentence under that statute can range anywhere from
thirty years to life, a thirty-year term of parole ineligibility
under N.J.S.A. 2C:11-3b is required. Further, a judge may not
impose partially concurrent and partially consecutive sentences
for two felony murders. State v. Rogers,
124 N.J. 113, 118-19
(1991). As noted previously, a concurrent term means a free
murder. Consequently, a court is constrained in a double felony
murder case to a choice of either thirty or sixty years of real
time. Id. at 120.
The sentencing judge explained why a free murder was
inappropriate. Among those reasons was the fact that Lavoura was
shot inside the office almost immediately. Suarez was shot
thereafter in the back by two guns while he was running for his
life. Those facts suggest that Lavoura was killed inside the
office to compel Suarez to give up the money, and Suarez was shot
outside of the office to prevent his escape. Under those
circumstances, each of the murders can be viewed as virtually
independent of one other, occurring at different times and
different places. This Court has acknowledged that even when
murders occur in close sequence, consecutive sentences are not
improper. State v. Brown,
138 N.J. 481, 560 (1994).
Statistics compiled by the Administrative Office of the
Courts reveal that in multiple murder and multiple felony murder
cases, defendants are usually sentenced to consecutive rather
than concurrent terms. Thirteen cases were studied, and of the
twelve in which defendants were tried, eleven were sentenced to
consecutive terms. Although the sampling was not extensive, the
results comport with my own judicial experience as well.
The issue of sentence disparity under the Code has existed
since the Code has been in effect. See State v. Hubbard,
176 N.J. Super. 174, 179 (Resen. P. 1980) (Coleman, J., dissenting)
(stating that a sentence must be excessive before reaching
disparity issue). In Hubbard, I explained that unjustifiable
disparity results from "the sentencing judge abusing his [or her]
discretion or depriving a defendant of his [or her]
constitutional rights. . . . A justifiable disparity may result
from the sentencing judge giving proper consideration to the law
. . . and all other proper guidelines for sentencing." Id. at
185. I adhere to the view that "a sentence of one defendant not
otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." State v. Hicks,
54 N.J. 390,
391 (1969) (citations omitted). Because I agree with the
majority that defendant's sentence is not excessive, I find no
basis to request that the trial court decide whether
unjustifiable disparity exists. I find that the sentences are
not unjustifiably disparate as a matter of law because Roach's
sentence is not excessive. The remand essentially directs the
trial court to undertake the impossible task of proving a
negative. See Williams v. Topps Appliance City, 239 N.J. Super.
528, 532 (App. Div. 1989) (noting that the law rarely imposes
upon a litigant the burden of proving a negative).
Even where unjustifiable disparity is found to exist, the
better way to correct it is through the Court's supervisory
power, rather than its adjudicatory power, on a case-by-case
basis. We recently reaffirmed that position, providing that
"[t]he issue of sentence disparity is most appropriately
addressed on a comprehensive basis rather than considered and
resolved in the narrow context and under the procedural
constraints of an adversarial proceeding." State v. Gerns, ___
N.J. ___, ___ (1996) (slip op. at 22). Thus this is the type of
case that is better handled on an administrative level to avoid
the problems that occur when multiple judges sentence multiple
defendants for a single criminal transaction.
I concur in the Court's decision to affirm defendant's
convictions, but dissent from the Court's decision to remand for
reconsideration of the sentence.
Justice Garibaldi joins in this opinion.
NO. A-112 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WINSTON ROACH,
Defendant-Appellant.
DECIDED August 7, 1996
Justice Handler PRESIDING
OPINION BY Justice Handler
CONCURRING/DISSENTING OPINION BY Justice Coleman
DISSENTING OPINION BY
Footnote: 1 We note that the standard applicable to this situation
may invoke heightened considerations for protection of
defendant's rights in the context of a death-penalty prosecution.
Justice Stevens, joined by Justice Ginsburg, filed a dissenting
opinion to the denial of certiorari in Jacobs arguing that:
For a sovereign state represented by the same
lawyer to take flatly inconsistent positions
in two different cases--and to insist on the
imposition of the death penalty after
repudiating the factual basis for that
sentence--surely raises a serious question of
prosecutorial misconduct
[Id. at __, 115 S. Ct. at 712, 130
L.Ed.
2d at 619 (Stevens, J.,
dissenting).]
Footnote: 2 The jurors asked whether accomplice liability applied
to counts 4 and 5 (purposeful and knowing murder) and whether the
defendant would have to be a principal for conviction. On the
armed robbery count, the jurors asked "did he have to be holding
the gun in the office" for liability. Those questions prompted a
recharge from the trial court on accomplice liability, which
pointed out that an accomplice may participate in the criminal
act with a different intent resulting in a different degree of
guilt.
Footnote: 3 At sentencing, defense counsel stated the following:
"In Mr. Roach's case he is not -- was not convicted of being the
-- one of the actual gunmen in this case, he was convicted of
being an accomplice -- a lookout in this particular case."
Footnote: 4 Defendant's present offense is his fourth indictable
conviction as an adult. Adult Presentence Report, Uniform Intake
Report 1 (1992). Defendant has an extensive arrest history as a
juvenile and as an adult for burglary, motor vehicle theft,
assault, armed robbery, and CDS offenses. Ibid. At the time of
his sentencing, defendant also had several charges pending
related to violent assaults, terroristic threats, and unlawful
weapon offenses. Ibid. The trial court also noted that those
offenses had occurred within or about thirty days after the
offenses in the instant case.
It has been argued that Wright's juvenile record includes seventeen arrests, mostly for theft and robbery. Jackson has an extensive juvenile complaint history yielding four adjudications of delinquency. As an adult, he has seven arrests and two indictable convictions, including the present offense involving mainly thefts and burglaries; a criminal attempt charge is pending.