STATE OF NEW JERSEY VS. DONALD EASTERLING (15-04-0865 AND 15-04-0866, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4211-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD EASTERLING,
Defendant-Appellant.
_________________________
Submitted January 10, 2019 – Decided August 16, 2019
Before Judges O'Connor, Whipple and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 15-04-0865
and 15-04-0866.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stephen W. Kirsch, Assistant Deputy Public
Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Barbara A.
Rosenkrans, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Donald Easterling appeals from judgments of conviction of
robbery, aggravated assault, and related weapons charges, as well as the
sentence imposed for those convictions. We vacate defendant's conviction on
one count, affirm his remaining convictions, and remand for merger of his
convictions on two counts, and resentencing.
I.
On July 30, 2014, defendant, armed with a handgun, robbed several people
in a 99-cent store in Newark. After entering the store with his gun cocked and
loaded, defendant ordered the store owner and two others to get on the floor. He
pointed his gun at the store owner's head when he refused to get on the floor and
demanded that his victims empty their pockets. One victim threw his watch,
money, and a fanny pack on the floor, which defendant scooped up. Defendant
thereafter headed toward the front door. A fourth person in the store realized
defendant did not detect his presence. He quietly climbed through a window
and escaped, locking the door as he exited, and trapping defendant in the store.
Once outside, he flagged down a patrol car that was passing through the
neighborhood and reported the robbery to a police officer.
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The officer approached the store with his gun drawn. Seeing through the
glass door that defendant was armed and heading to the door, the officer fired
twice. He got a clear look at defendant and identified him at trial. A second
officer arrived at about the same time. Although he saw a figure with a gun in
the store, he could not identify defendant at trial.
Noticing that defendant, who appeared high on drugs, was wounded from
the officer's gunfire, the three people in the store grabbed defendant and began
to tussle with him. They jumped on defendant, kicked him, fought hi m, and one
threw a "radiator" at him. The three eventually dragged defendant to the front
of the store, stomped on him, and threw him to the floor, face down, with the
gun underneath him.
A second officer, who was nearby when he heard radio transmissions
reporting the robbery, responded to the scene. He saw the first officer pointing
his gun at the store and yelling "show me your hands, drop the gun." He also
observed defendant on the floor of the store with three men on top of him and
assumed defendant was being robbed. He saw the three men cause defendant's
head to slam against the front door of the store, cracking the glass. At that point,
the officer was within arms' reach of defendant and made eye contact with him.
He heard a bang, saw "muzzle fire," and realized defendant had shot him in the
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knee through the glass door. A third officer arrived just after the shot was fired.
He carried the wounded officer from the scene, securing him behind a police
vehicle. He was later transported to a trauma center. Although the wounded
officer survived the shooting, he was unable to return to work because of his
injuries, experiences mobility limitations, and must wear a leg brace. At trial,
the wounded officer identified defendant as the man who shot him.
Additional officers arrived, broke through the door, entered the store, and
arrested defendant. He was removed from the floor, where officers found a
Glock handgun. Because he had been shot, defendant was taken to a trauma
center for treatment. Among the items recovered at the robbery was a fanny
pack containing $280 in cash (the store owner claimed it was between $600 and
$700 in cash) from the rear of the store, and a small cup with baggies of
marijuana inside it near the cash register.
A grand jury indicted defendant charging him with: first-degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1) (count one); second-degree
aggravated assault; N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated
assault of a law enforcement officer performing his duties resulting in bodily
injuries, N.J.S.A. 2C:12-1(b)(5)(a) (count three); three counts of first-degree
robbery, N.J.S.A. 2C:15-1 (counts four, five, and six); second-degree unlawful
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possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
eight); fourth-degree aggravated assault on a law enforcement officer in the
performance of his duties not resulting in bodily injury, N.J.S.A. 2C:12-
1(b)(5)(a) (count nine); fourth-degree aggravated assault by pointing a firearm,
N.J.S.A. 2C:12-1(b)(4) (count ten); and fourth-degree possession of prohibited
ammunition, a high-capacity magazine, N.J.S.A. 2C:39-3(j) (count eleven). The
grand jury also charged defendant in a separate indictment with a single count
of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
At trial, defendant testified that he was an innocent, unarmed bystander in
the store who was attacked by the store owner and his associates, who were
selling marijuana at the front counter. Defendant testified that he was struggling
to get away from the men who were assaulting him when he was shot. He argued
that the Glock handgun found at the store belonged to the store owner, who
presumably used the weapon to protect his drug sales operation.
Following a jury trial, count nine of the indictment was dismissed. The
jury found defendant guilty of second-degree aggravated assault (count two);
third-degree aggravated assault (count three), two counts of first-degree robbery
(counts four and five), and the three weapons charges (counts seven, eight, and
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eleven). The jury acquitted defendant of attempted murder (count one), fourth-
degree aggravated assault (count ten), and one count of robbery (count six).
Immediately after the jury returned its verdict, defendant entered a guilty plea
to the certain-persons charge, contingent on his other convictions being upheld
on appeal.
The court sentenced defendant on both indictments to an aggregate
extended term of forty-five years of imprisonment, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. The court imposed the forty-five-year term on
count five, the first-degree robbery of the store owner, with the terms of
incarceration on all other counts to run concurrent with that sentence. The
extended term was mandated by N.J.S.A. 2C:44-3(d), because defendant had a
prior conviction for robbery during which he used a gun. The court also imposed
statutory fees and penalties.
This appeal followed. Defendant makes the following arguments for our
consideration:
POINT I
THE JURY INSTRUCTION ON ROBBERY FAILED
TO TELL THE JURY HOW THE CHARGED
BURDEN OF PROOF PERTAINED TO
ANSWERING THE "YES/NO" QUESTION THAT
WAS POSED: "IN THE COURSE OF COMMITTING
THE ROBBERY DID THE DEFENDANT USE,
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THREATEN THE IMMEDIATE USE OF, OR WAS
HE ARMED WITH A DEADLY WEAPON?" THE
INSTRUCTION ALSO CONFUSINGLY TOLD THE
JURY TO RETURN A VERDICT OF GUILTY ON
THE CRIME OF "ROBBERY" NO MATTER WHAT
ITS ANSWER WAS TO THAT QUESTION. (NOT
RAISED BELOW).
POINT II
THE TRIAL JUDGE SHOULD HAVE CONDUCTED
INDIVIDUAL VOIR DIRE OF THE ENTIRE JURY
ONCE IT WAS BROUGHT TO HER ATTENTION
DURING THE TRIAL THAT A JUROR NOT ONLY
NEEDED TO BE EXCUSED FROM THE JURY
BECAUSE THE JUROR KNEW A POSSIBLE STATE
WITNESS, BUT THAT THE JUROR HAD SPOKEN
TO OTHER JURORS ABOUT HER FAMILIARITY
WITH THE WITNESS; EXCUSING THE JUROR
WAS AN INSUFFICIENT REMEDY UNDER THE
CIRCUMSTANCES. (NOT RAISED BELOW).
POINT III
DEFENDANT SHOULD NOT BE SEPARATELY
CONVICTED OF ROBBERY OF A STORE – THERE
IS NO SUCH CRIME – AND OF ROBBERY OF ONE
OF THE PEOPLE WORKING IN THE STORE; THE
FORMER CONVICTION SHOULD BE VACATED
(OR MERGED); ADDITIONALLY, THE TWO
CONVICTIONS FOR WHAT WAS A SINGLE
AGGRAVATED ASSAULT UPON OFFICER
DOMINGUEZ SHOULD ALSO MERGE. (NOT
RAISED BELOW).
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POINT IV
THE SENTENCE IMPOSED IS MANIFESTLY
EXCESSIVE; THE SAME OFFENSE THAT
TRIGGERED THE EXTENDED TERM WAS
DOUBLE-COUNTED AGAINST DEFENDANT IN
SETTING THE LENGTH OF THAT TERM.
In a supplemental pro se brief, defendant makes the following argument
for our consideration:
POINT I
THE STATE ERRED IN ALLOWING FALSE AND
PREJUDICIAL STATEMENTS DURING TRIAL OF
DEFENDANT DONALD EASTERLING WHEN
STATE WITNESS LLOYD DANBY TESTIFIED
THAT DEFENDANT HAD POINTED A GUN AT HIS
HEAD THEN COCKED THE TRIGGER.
II.
We address first defendant's argument with respect to the jury charge.
Although defendant agreed to the jury instructions given at trial, he argues for
the first time on appeal that the court did not sufficiently instruct the jury on the
elements of first- and second-degree robbery.
N.J.S.A. 2C:15-1 sets forth the elements of robbery. The statute provides:
a. Robbery defined. A person is guilty of robbery
if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another;
or
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(2) Threatens another with or purposely puts him in
fear of immediate bodily injury; or
(3) Commits or threatens to commit any crime of the
first or second degree.
An act shall be deemed to be included in the phrase "in
the course of committing a theft" if it occurs in an
attempt to commit theft or in immediate flight after the
attempt or commission.
b. Grading. Robbery is a crime of the second
degree, except that it is a crime of the first degree if in
the course of committing the theft the actor attempts to
kill anyone, or purposely inflicts or attempts to inflict
serious bodily injury, or is armed with, or uses or
threatens the immediate use of a deadly weapon.
[N.J.S.A. 2C:15-1.]
The court instructed the jury that it could find defendant guilty of robbery,
without mentioning a degree, if it found beyond a reasonable doubt that (1) in
the course of a theft (2) defendant threatened another with or purposely put
another in fear of immediate bodily injury. The court proceeded to define the
terms: theft, purposely, bodily injury, force, and knowingly.
Before explaining the deadly weapon element, the court called counsel to
side bar and asked whether the robbery charge should specifically note that there
are two degrees of robbery, and that the deadly weapon element elevates robbery
to a first-degree crime. The court stated "you never say degree in the charges."
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Defense counsel stated that she wished to continue with the agreed-upon
instructions, and did not want the different degrees of robbery mentioned to the
jury.
The court then instructed the jury that "the State must prove beyond a
reasonable doubt that the defendant was armed with or used or threatened the
immediate use of a deadly weapon while in the course of committing the
robbery." This describes the elements of first-degree robbery, but the court did
not mention the degree or a lower degree of robbery than was encompassed in
the first instruction.
The court instructed the jurors that if they had a reasonable doubt about
either of the "elements" of "robbery as I have defined that crime to you," they
must acquit defendant of that crime. The court appears to have been referring
to second-degree robbery. The court then instructed the jurors that if they
believed the State had proven the "crime of robbery" beyond a reasonable doubt,
but did not prove beyond a reasonable doubt that defendant was armed with or
threatened the use of a weapon, they "must find the defendant guilty of robbery."
Again, it appears the court was referring to second-degree robbery. The court
then instructed the jury that if they found defendant "committed the crime of
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robbery and was armed with a deadly weapon," they must "find the defendant
guilty of robbery." Apparently, the court was referring to first-degree robbery.
The court then reviewed the verdict sheet with the jury. With respect to
robbery, the verdict sheet provided:
On July 30th, 2014, in the City of Newark, defendant
Donald Easterling in the course of committing a theft
upon 99 cent zone, did inflict bodily injury or use force
against [specified victim] or did threaten [specified
victim] with, or purposely put him in fear of immediate
bodily injury. We find the defendant:
NOT GUILTY ______ GUILTY _______
If you find the defendant "GUILTY" of Robbery, please
answer the following question.
In the course of committing the Robbery did the
defendant use, threaten the immediate use of, or was he
armed with a deadly weapon?
NO ________ YES _________
The court instructed the jury that if it found defendant was guilty of robbery, it
must then answer the question regarding the deadly weapon.
It is well-settled that “[a]ccurate and understandable jury instructions in
criminal cases are essential to a defendant's right to a fair trial.” State v.
Concepcion, 111 N.J. 373, 379 (1988). However, "[i]f the defendant does not
object to the charge at the time it is given, there is a presumption that the charge
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was not error and was unlikely to prejudice the defendant's case." State v.
Singleton, 211 N.J. 157, 182 (2012). Therefore, "the failure to object to a jury
instruction requires review under the plain error standard." State v. Wakefield,
190 N.J. 397, 473 (2007).
As applied to a jury instruction, plain error requires
demonstration of "legal impropriety in the charge
prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by
the reviewing court and to convince the court that of
itself the error possessed a clear capacity to bring about
an unjust result."
[State v. Chapland, 187 N.J. 275, 289 (2006) (quoting
State v. Hock, 54 N.J. 526, 538 (1969)).]
The mere possibility of an unjust result is not enough to warrant reversal of a
conviction. State v. Jordon, 147 N.J. 409, 422 (1997). "The error must be
considered in light of the entire charge and must be evaluated in light 'of the
overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010)
(quoting Chapland, 187 N.J. at 289).
"[W]e must read the charge as a whole." State v. Townsend, 186 N.J. 473,
499 (2006). "[T]he prejudicial effect of an omitted instruction must be evaluated
in light of the totality of the circumstances including all of the instructions to
the jury, [and] the arguments of counsel." Ibid. (alteration in original) (quoting
State v. Marshall, 123 N.J. 1, 145 (1991)). A defendant is entitled to a charge
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that is "accurate and that does not, on the whole, contain prejudicial error." State
v. Labrutto, 114 N.J. 187, 204 (1989). "The test to be applied . . . is whether the
charge as a whole is misleading, or sets forth accurately and fairly the
controlling principles of law." State v. Baum, 224 N.J. 147, 159 (2016) (quoting
State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997)). "The verdict
sheet, in conjunction with the jury charges, constitutes the trial court's direction
to the jury." State v. Galicia, 210 N.J. 364, 386 (2012). "[A] jury charge is a
road map to guide the jury," and "[a] verdict sheet is an essential component of
that road map." Id. at 386-87.
In addition, the flaws in the instructions that defendant challenges were
brought to defense counsel's attention by the court. Defendant's counsel
dismissed the court's concerns and stated that the instructions were acceptable.
A party cannot profit from an error which he "induced, encouraged or acquiesced
in, or consented to by defense counsel . . . ." State v. Van Syoc, 235 N.J. Super.
463, 465 (Law Div. 1988), aff'd, 235 N.J. Super. 409 (App. Div. 1989). Under
the invited error doctrine, encouraged errors "ordinarily are not a basis for
reversal on appeal . . . ." State v. A.R., 213 N.J. 542, 561 (2013) (quoting State
v. Corsaro, 107 N.J. 339, 345 (1987)). "The doctrine is implicated 'when a
defendant in some way has led the court into error[.]'" Id. at 562 (quoting State
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v. Jenkins, 178 N.J. 347, 359 (2004)). It applies "in a wide variety of situations."
Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.C., 201 N.J. 328, 340-
41 (2010)).
Although defendant's argument is subject to the invited error doctrine, in
the interests of justice we review the jury instructions for plain error. We are
satisfied that the court clearly explained to the jury the elements of robbery and
the State's obligation to prove those elements beyond a reasonable doubt. In
addition, the court adequately instructed the jury with respect to the State's
obligation to prove that defendant used or threatened the use of force, or was
armed with a deadly weapon. While the court did not differentiate the two
degrees of robbery in its instructions or on the verdict sheet, the court instructed
the jury of its obligation to make a separate conclusion with respect to t he
weapons element of first-degree robbery, and the verdict sheet presented the
question of whether the State proved this element as a separate inquiry to be
determined by the jury only if it previously found defendant guilty of robbery.
In addition, when viewed against the strength of the State's proofs, which
included eyewitness identification of defendant in possession of and using a
handgun, we do not see the alleged lack of precision in the jury instructions as
possessing a clear capacity to bring about an unjust result. This is particularly
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true in light of defendant's position at trial that he was the innocent victim of an
assault by the store owner and his associates. He did not argue that he robbed
the store owner and the others while unarmed. He therefore did not argue a
version of events constituting second-degree robbery. The jury clearly rejected
defendant's testimony, and instead found more credible the State's evidence that
defendant robbed the people in the store while armed with a handgun.
III.
Quaree Jones was one of the men in the store at the time of the robbery.
Because of an oversight, his name was not on the list of proposed witnesses that
was read to the array during the jury selection process. During the testimony of
another witness, Jones's name was mentioned. Also during that testimony, a
juror accidentally cut himself. A court officer went into the jury room to check
on the juror's condition. Juror No. 14 called out to the officer and told him, in
front of the other jurors, that she recognized the name Quaree Jones. The officer
told the juror to stop talking and reported the conversation to the judge.
The court questioned Juror No. 14 outside of the presence of the other
jurors. Juror No. 14 stated that Jones had been in a relationship with her
daughter's grandmother "years ago" but that she had not seen him in years. Juror
No. 14 stated that knowing Jones would not interfere with her ability to be fair
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and impartial. She acknowledged that she asked other jurors if they had seen
Jones's name on the witness list, because she thought she may have overlooked
it, and told them that she needed to inform the court that she knew Jones. The
court excused Juror No. 14.
When asked by the court, both defense counsel and the State agreed that
there was no need to question the other jurors about the incident. They
expressed concern that further questioning would highlight Jones unnecessarily,
given that Juror No. 14 did not convey any information about him to them.
Defendant argues for the first time on appeal that the trial court erred by not
questioning the remaining jurors to determine if Juror No. 14 told them anything
about Jones.
The Sixth Amendment of the United States Constitution and Article I,
paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to trial by an impartial jury. U.S. Const. amend. VI; N.J. Const. art. I, para.
10. "That constitutional privilege includes the right to have the jury decide the
case based solely on the evidence presented at trial, free from the taint of outside
influences and extraneous matters." State v. R.D., 169 N.J. 551, 557 (2001). A
new trial should be granted only when the "intrusion of irregular influences into
jury deliberations 'could have a tendency to influence the jury in arriving at its
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verdict in a manner inconsistent with the legal proofs and the court's charge. '"
State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div. 1997) (quoting Panko v.
Flintkote, 7 N.J. 55, 61 (1951)).
When a juror informs the court that she has extraneous information
relating to a witness, "[t]he court is obliged to interrogate the juror, in the
presence of counsel, to determine if there is a taint; if so, the inquiry must
expand to determine whether any other jurors have been tainted thereby." R.D.
169 N.J. at 558. The court must determine "whether the juror intentionally or
inadvertently has imparted any of that information to other jurors." Id. at 560.
"Depending on the juror's answers to searching questions by the court, the court
must then determine whether it is necessary to voir dire individually other jurors
to ensure the impartiality of the jury." Ibid. "[T]he decision to voir dire
individually the other members of the jury best remains a matter for the sound
discretion of the trial court." Id. at 561.
Our review of the record reveals that the court did not abuse its discretion
when it decided not to individually question the jurors who were not excused.
As a preliminary matter, we note that the invited error doctrine would permit
this court to decline to review this issue. Van Syoc, 235 N.J. Super. at 465.
Defense counsel, apparently satisfied that Juror No. 14 gave a credible account
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of her interaction with the other jurors, declined the trial court's suggestion that
voir dire of the other jurors might be necessary. We review the issue, however,
for plain error. R. 2:10-2.
The court, having had the opportunity to question Juror No. 14 and to
assess her credibility, determined that she did not share any information, other
than reporting that she knew Jones, with the other jurors. In addition, the extent
of Juror No. 14's relationship was Jones was limited and ended years before the
trial. She did not have any personal knowledge of the events that gave rise to
the indictments or Jones's involvement in those events. She expressed to the
court no opinion on his credibility or character. The court acted within its
discretion when it determined that questioning the other jurors about Jones
would unnecessarily highlight him in their minds.
IV.
The State concedes defendant cannot be convicted of both first-degree
robbery of the store (count four) and first-degree robbery of the owner of the
store (count five). A robbery conviction requires the jury to unanimously
conclude that a defendant knowingly used or threatened force against a specific
victim. State v. Gentry, 183 N.J. 30 (2005). Defendant's conviction under count
four is, therefore, vacated.
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The State also concedes defendant was improperly convicted of both
second-degree bodily injury aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count
two), and third-degree aggravated assault on a police officer while performing
his duties resulting in bodily injury, N.J.S.A. 2C:12-1(b)(5)(a) (count three).
The charges involve the same elements, State v Miles, 229 N.J. 83 (2017), and
amount to two convictions for the same assault. State v. Graham, 223 N.J.
Super. 571, 577 (App. Div. 1988). Defendant's conviction under count three
must be merged with his conviction under count two.
V.
We reject defendant's argument that his sentence is excessive. "Appellate
review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127
(2011). We are satisfied that the judge's findings and balancing of the
aggravating and mitigating factors are supported by adequate evidence in the
record, and the sentence is neither inconsistent with sentencing provisions of the
Code of Criminal Justice nor shocking to the judicial conscience. See State v.
Fuentes, 217 N.J. 57, 70 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010);
State v. Cassady, 198 N.J. 165, 180-81 (2009). Defendant, who had a lengthy
history of criminal convictions, committed an armed robbery during which he
shot a police officer and committed other offenses. He was subject to a
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mandatory extended term, given that he is a two-time offender for a firearms
charge. N.J.S.A. 2C:44-3(d). Forty-five years of imprisonment, close to the
mid-range for a first-degree crime, is consistent with the gravity of defendant's
criminal conduct.
To the extent we have not specifically addressed any of defendant's
remaining arguments it is because we conclude they lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendant's conviction on count four is vacated. His remaining
convictions are affirmed. The matter is remanded for merger of his conviction
on count three with his conviction on count two, and resentencing. We do not
retain jurisdiction.
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