STATE OF NEW JERSEY VS. HOPETON B. BROWN, JR. ANDÂ LAMAR A. JONES(10-11-1702, MIDDLESEX COUNTY AND STATEWIDE)(CONSOLIDATED)

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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2466-13T3
A-4115-13T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HOPETON B. BROWN, JR. and
LAMAR A. JONES,
Defendants-Appellants.
___________________________________
Submitted October 11, 2016 – Decided August 1, 2017
Before Judges Ostrer, Leone and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Indictment No. 10-11-1702.
Joseph E. Krakora, Public Defender, attorney
for appellant Hopeton B. Brown, Jr. (Stephen
P. Hunter, Assistant Deputy Public Defender,
of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant Lamar Jones (Frank J. Pugliese,
Assistant Deputy Public Defender, of counsel
and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Susan L. Berkow,
Special Assistant Prosecutor, of counsel and
on the briefs).
Appellant Hopeton B. Brown, Jr. filed a pro
se supplemental brief.
PER CURIAM
Defendants Hopeton B. Brown, Jr., and Lamar A. Jones were
convicted of second-degree conspiracy to commit robbery, N.J.S.A.
2C:5-2, N.J.S.A. 2C:15-1(a), and fourth-degree criminal trespass,
N.J.S.A. 2C:18-3, as a lesser-included offense of first-degree
attempted armed robbery, N.J.S.A. 2C:5-1, N.J.S.A. 2C:15-1(a).
Jones was also convicted of two firearms-related offenses: he
unlawfully possessed a handgun, N.J.S.A. 2C:39-5(b), and he did
so for an unlawful purpose, N.J.S.A. 2C:39-4(a), both second-
degree offenses. Jones was acquitted of fourth-degree unlawful
possession of hollow nose bullets. N.J.S.A. 2C:39-3(f). Brown
was acquitted of all three firearms-related offenses. Both
defendants were acquitted of criminal trespass by peering, another
lesser-included offense of attempted armed robbery. The court
sentenced Brown to an aggregate seven-year sentence, and Jones to
an aggregate eight-year sentence, both subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2.
In brief, the prosecution arose out of an incident shortly
before midnight on an August evening in North Brunswick. A
concerned citizen reported to police that three men were acting
suspiciously in front of a house on the block where he lived.
2 A-2466-13T3
Police officers responded and stopped Jones, Brown and Keree Wade,
who later testified against the other two. Upon investigation,
police discovered that Jones and Wade possessed identical ski
masks. The police found a third ski mask and a pistol discarded
near the scene. DNA collected from the pistol's magazine matched
a sample from Jones.
Wade's testimony at trial detailed the three men's intentions
that night. He stated that they had planned to rob the home of a
drug-dealer. After they arrived and Jones observed children in
the proposed victim's home, they began to get cold feet. The
three were in the midst of reconsidering their plan when police
arrived. After being discovered, they fled the scene. Wade
testified that he and Brown temporarily hid in the doorway of the
residential building. The two were immediately separated from
Jones.
Defendants challenge the court's denial of a suppression
motion, evidentiary rulings, the sufficiency of the evidence, and
the jury instructions.
I.
We first consider defendants' challenge to the court's denial
of the motion to suppress Jones's ski mask. Jones argues:
3 A-2466-13T3
POINT I
THE SKI MASK TAKEN FROM DEFENDANT SHOULD HAVE
BEEN SUPPRESSED BECAUSE THERE WAS NO
REASONABLE SUSPICION OF CRIMINAL ACTIVITY TO
JUSTIFY THE INVESTIGATORY STOP OR, IN THE
ALTERNATIVE, TO SEIZE THE SKI MASK. U.S.
Const. Amends IV, XIV; N.J. Const. Art. I, ¶¶
1, 7.
Brown contends:
POINT I
THE SKI MASK TAKEN FROM CO-DEFENDANT JONES
SHOULD HAVE BEEN SUPPRESSED BECAUSE THERE WAS
NO REASONABLE SUSPICION OF CRIMINAL ACTIVITY
TO JUSTIFY THE INVESTIGATORY STOP OF JONES.
ALTERNATIVELY, THE SEARCH AND SEIZURE OF THE
SKI MASK EXCEEDED THE SCOPE OF AN
INVESTIGATORY STOP. U.S. Const. Amends IV,
XIV; N.J. Const. Art. I, ¶¶ 1, 7.
In sustaining the stop, and the search and seizure of the ski
mask, the trial judge credited the sole witness at the suppression
hearing, North Brunswick police officer Michael Sauvigne. He and
other officers were dispatched to the scene based on the citizen's
report of the three men acting suspiciously. When he arrived, he
saw Jones sprinting down a sidewalk a couple blocks from where the
citizen and two officers first saw the three men. Jones's two
cohorts were being followed by two other officers on the opposite
side of the street.
Jones then stopped and attempted to enter a parked car from
the passenger-side door. Since there had been a rash of car
4 A-2466-13T3
burglaries that summer, Sauvigne initially suspected that Jones
might be breaking into the car. Sauvigne stopped his marked police
vehicle in the middle of the street behind the car. Sauvigne got
out and asked Jones, who was wearing a heavy hooded sweatshirt,
to approach him. As Jones did, he had both hands in the hoodie's
front pocket. After he removed his hands upon Sauvigne's command,
a bulge remained.
Sauvigne then investigated the contents of Jones's front
pocket, though the precise manner in which he did so is unclear.
Sauvigne initially testified, "I ask him what the bulge is, and
when I ask him about the bulge, he reaches in and says it's a hat,
and pulls out a — a hat." Sauvigne said it was a ski hat with
"eye holes cut out, and I believe either a mouth or a nose hole."
Asked on cross-examination, "And you asked him to remove it?"
Sauvigne responded, "I'm not sure if I asked him to remove it or
if he said it's my hat and reached in. I believe he said it's my
hat and he reached in and grabbed it out."
In his oral decision, the court presumed the officer asked
Jones to remove the hat. After reviewing the events leading to
the stop, the judge stated:
The [c]ourt finds that the request of the
officer[] to take out . . . whatever was in
the gentleman's pocket is perfectly
appropriate given the time of night, the --
the tenor of what's going around and the
5 A-2466-13T3
totality of circumstances, and the taking of
that hat is perfectly appropriate given all
of the information that was had by the officer
at that time.[1]
However, in his written order filed the same day, the judge omitted
the finding that Sauvigne asked Jones to remove the hat, stating:
"Officer Sauvigne's inquiry as to what was in defendant Jones'
pocket, after which defendant Jones pulled out a black ski mask,
was lawful given all the information Officer Sauvigne had at that
time . . . ."
Jones and Brown contend Sauvigne engaged in an investigatory
stop without an articulable and reasonable suspicion of criminal
activity. They further argue that even if he had grounds to stop
Jones, the seizure of the hat exceeded the stop's legitimate scope.
We disagree.
As our Supreme Court has recently emphasized, we apply a
deferential standard of review to trial court fact findings on a
motion to suppress evidence based on live testimony. State v.
S.S., ___ N.J. ___ (2017) (slip op. at 16). We respect the trial
court's opportunity to assess witnesses and have a "feel" of the
1
In the course of oral argument, the judge suggested it did not
matter whether the officer had asked Jones to remove the hat or
he did so on his own. After reviewing the circumstances, the
judge stated, "I would find and do find that even as an order, it
was perfectly reasonable self protection where there's a bulge in
somebody's pocket to make inquiry as to what it is and ask that
it be seen."
6 A-2466-13T3
case (indeed, we must defer even where the trial court evaluates
video recorded evidence without live witnesses). Id. at 16, 25.
We shall uphold findings "supported by sufficient credible
evidence in the record," and shall not overturn a decision merely
because we "would have reached a different conclusion." Id. at
16 (internal quotation marks and citation omitted). However, we
owe no deference to trial courts' legal conclusions, "unless
persuaded by their reasoning." Id. at 25 (internal quotation
marks and citation omitted).
Applying this standard of review, we discern adequate support
in the record for the conclusion that the officer, under the
"totality of the circumstances," had not just a hunch, but a
reasonable and articulable suspicion of criminal activity, to
justify his investigatory stop of Jones. See, e.g., State v.
Privott, 203 N.J. 16, 29-30 (2010); State v. Basil, 202 N.J. 570,
588-89 (2010); State v. Davis, 104 N.J. 490, 504-05 (1986).
Sauvigne responded to the report of suspicious activity from
a concerned and identified neighbor, not an anonymous tipster.
See State v. Stovall, 170 N.J. 346, 362 (2002) (stating that an
ordinary citizen is assumed to have sufficient veracity and
requiring no further showing of reliability). The observed men
were reported lingering near a house around midnight. See State
v. Gamble, 218 N.J. 412, 433 (2014) (location and hour of day
7 A-2466-13T3
contribute to a reasonable and articulable suspicion). Sauvigne
spotted Jones, who was wearing a heavy hoodie in August. See
United States v. Maguire, 359 F.3d 71, 77 (1st Cir. 2004) (suspects
wearing clothing "inappropriate for the weather" contributed to a
reasonable and articulable suspicion). Sauvigne reasonably
believed Jones was one of the three men reported by the neighbor,
and he was sprinting down the street to avoid being caught. See
State v. Piniero, 181 N.J. 13, 26 (2004) (stating that flight, "in
combination with other circumstances . . . may support reasonable
and articulable suspicion"). Mindful of a recent spate of car
burglaries, he saw Jones attempt to enter a parked car from the
passenger side. See State v. Citarella, 154 N.J. 272, 280 (1998)
(considering "rash of burglaries in the area" as a factor in
reasonably suspecting defendant of criminal activity); State v.
Contreras, 326 N.J. Super. 528, 541 (App. Div. 1999) (stating that
"recent nearby crimes" can be a factor in finding reasonable
suspicion). Furthermore, Jones was far away from where he was
originally spotted, providing additional cause to suspect he was
attempting to enter a car not his own.
Sauvigne also had a reasonable articulable suspicion that
Jones possessed a weapon, justifying his subsequent protective
search. Added to the circumstances that justified the stop,
Sauvigne observed a bulge in Jones's front pocket after he removed
8 A-2466-13T3
his hands. The totality of those circumstances created an
objectively reasonable fear that a weapon caused the bulge, posing
a threat to Sauvigne's safety. "Indeed, a bulge alone has been
held sufficient to validate a protective pat-down." State v.
Smith, 134 N.J. 599, 621 (1994) (citing Pennsylvania v. Mimms, 434
U.S. 106, 111-12, 98 S. Ct. 330, 334, 54 L. Ed. 2d 331, 338
(1977)). Accordingly, the officer was "entitled for the protection
of himself and others in the area to conduct a carefully limited
search of the outer clothing . . . in an attempt to discover
weapons which might be used to assault him." Terry v. Ohio, 392
U.S. 1, 30, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889, 911 (1968).
Sauvigne's search was appropriately "confined in scope to an
intrusion reasonably designed to discover weapons that might be
used to assault the police officer." State v. Roach, 172 N.J. 19,
27 (2002) (quoting Terry, supra, 392 U.S. at 29, 88 S. Ct. at
1884, 20 L. Ed. 2d at 910) (internal quotation marks omitted).
Not every Terry search is limited to a pat and frisk. "[C]ourts
have upheld seizures of unidentifiable objects on a suspect's
person where a lawful pat-down is either inconclusive or
impossible." Id. at 28-29 (upholding search and seizure where
officer reached into suspect's bulging pocket after inconclusive
pat down). Nevertheless, the officer must resort to the "least
intrusive maneuver to protect" his safety. Privott, supra, 203
9 A-2466-13T3
N.J. at 31. In reviewing whether an officer has done so, "the
facts surrounding the event are pivotal." Roach, supra, 172 N.J.
at 29.
Officer Sauvigne asked Jones what was in his pocket. Jones
answered it was a hat. Even assuming he did not remove it until
Sauvigne's request, the officer's conduct met the fundamental
test: it was "objectively reasonable under the totality of the
circumstances." Ibid. (internal quotation marks and citation
omitted).
Sauvigne's conduct would have been more intrusive had he not
asked Jones what caused the bulge, but immediately commanded him
to empty his pocket. Such an order would have invaded Jones's
privacy interests over all its then-undisclosed contents. And
once Sauvigne asked the question and received the answer that it
was a harmless hat, it was reasonable for Sauvigne to confirm that
fact. He could do so one of three ways: by patting and frisking
Jones, which would have invaded Jones's bodily integrity; reaching
into his pocket, which would have invaded his privacy interests
over any other contents; or asked Jones to show him the hat. The
course taken by Sauvigne was the least intrusive one.
Finally, Sauvigne had probable cause to retain the hat as
evidence of suspected criminal activity. See Minnesota v.
Dickerson, 508 U.S. 366, 379, 113 S. Ct. 2130, 2139, 124 L. Ed.
10 A-2466-13T3
2d 334, 348 (1993) (holding that officer must have probable cause
to believe object was related to crime in order to seize it
permanently from the suspect); see also State v. Bruzzese, 94 N.J.
210, 236-38 (1983) (stating that, in order to seize property in
plain view, there must be "probable cause to associate the property
with criminal activity" (quoting Texas v. Brown, 460 U.S. 730,
741-42, 103 S. Ct. 1535, 1543, 75 L. Ed. 2d 502, 513 (1983))).
Here, the "incriminating character of the object[,]" Dickerson,
supra, 508 U.S. at 379, 113 S. Ct. at 2139, 124 L. Ed. 2d at 348,
was obvious. Possession of a ski mask may well appear innocuous
in January, but in August it was akin to possession of burglary
tools or another instrument of criminal activity, particularly in
light of the attendant circumstances. Cf. State v. Matthews, 799
N.W.2d 911 (Wisc. Ct. App.) (noting that even in cold weather,
when defendant "may have worn the ski mask and hoodie to stay warm
so that his choice of clothing was innocent," the police had a
reasonable suspicion of criminal activity to further investigate),
review denied, 806 N.W.2d 640 (2011).
Lastly, the fact that Sauvigne did not also arrest Jones is
of no moment. "[P]robable cause to arrest and probable cause to
search involve distinct and not necessarily identical inquiries."
State v. Chippero, 201 N.J. 14, 31 (2009). The same distinction
holds true for probable cause to seize.
11 A-2466-13T3
In sum, we discern no error in the court's denial of the
motion to suppress the ski mask.
II.
We turn next to claimed evidentiary errors at trial. Jones
contends, as his Point II:
THE COURT VIOLATED DEFENDANT'S RIGHTS TO
CONFRONTATION, TO DUE PROCESS AND TO PRESENT
A DEFENSE BY PRECLUDING HIM FROM PRESENTING
EVIDENCE UNDERMINING THE CREDIBILITY OF CO-
DEFENDANT WADE. U.S. CONST. AMENDS VI, XIV;
N.J. CONST., ART. I, ¶¶ 1, 10.
Brown contends, as his Point III:
THE PROSECUTOR'S QUESTIONING CONCERNING
DEFENDANT'S SILENCE VIOLATED HIS RIGHT AGAINST
SELF-INCRIMINATION AND THEREFORE AMOUNTED TO
PROSECUTORIAL MISCONDUCT. U.S. Const. Amend.
XIV, N.J. Const. Art. I, ¶ 1.
We consider these points in turn.
A.
The court denied the effort of Jones's counsel during Wade's
cross-examination to elicit evidence that he was a member of a
gang. Citing N.J.R.E. 608, the judge found that evidence of gang
membership was not admissible to attack Wade's credibility. The
judge also considered gang membership as evidence of a crime or
other wrongful act under N.J.R.E. 404(b) as applied in State v.
Cofield, 127 N.J. 328, 338 (1992). The judge noted that the
evidence was not relevant to a material issue because the State
12 A-2466-13T3
had not alleged, nor was there evidence that, "the alleged crime
was instigated or part of any kind of gang activity . . . ." The
court also concluded that evidence of gang activity was more
prejudicial than probative under N.J.R.E. 403.
Jones argues that he was entitled "to impeach the credibility
of the State's witness via his prior bad acts, i.e., his gang
affiliation, and establish that through his gang activity he had
ready access to firearms, including the one he attributed to
defendant in this case." He argues the court's evidentiary ruling
was erroneous and deprived him of his constitutional rights.
"A trial court's evidentiary rulings are entitled to
deference absent a showing of an abuse of discretion, i.e., there
has been a clear error of judgment." State v. Nantambu, 221 N.J.
389, 402 (2015) (internal quotation marks and citation omitted).
We apply de novo review on issues of law, ibid., or if the trial
court applies the wrong legal standard, State v. Darby, 174 N.J.
509, 518 (2002).
Defendant proffered two purposes for eliciting Wade's gang
affiliation: to undermine his credibility and to establish his
ready access to firearms, including the one attributed to Jones.
As to the first purpose, the court correctly barred testimony of
Wade's gang affiliation because N.J.R.E. 405 and N.J.R.E. 608
preclude evidence of specific instances of conduct to challenge a
13 A-2466-13T3
witness's credibility. State v. Scott, ___ N.J. ___, ___ (2017)
(slip op. at 13). As the Court has recently described:
N.J.R.E. 405 provides that "[s]pecific
instances of conduct not the subject of a
conviction of a crime shall be inadmissible,"
and N.J.R.E. 608 indicates that "a trait of
character cannot be proved by specific
instances of conduct" unless the prior act was
a "false accusation against any person of a
crime similar to the crime with which
defendant is charged."
[Ibid.]
Jones's second purpose in introducing evidence of gang
affiliation implicates both N.J.R.E. 404(b) and N.J.R.E. 403. As
to the former rule, we recognize that when a defendant seeks to
use evidence of another's crime or wrong defensively, the more
stringent test in Cofield does not apply because "an accused is
entitled to advance in his defense any evidence which may
rationally tend to refute his guilt or buttress his innocence of
the charge made." State v. Weaver, 219 N.J. 131, 150 (2014)
(internal quotation marks and citation omitted). When a defendant
offers N.J.R.E. 404(b) evidence "exculpatorily, prejudice to the
defendant is no longer a factor, and simple relevance to guilt or
innocence should suffice as the admissibility standard." Ibid.
(internal quotation marks and citation omitted). It is thus
unclear whether N.J.R.E. 404(b) should preclude the admission of
Wade's gang membership.
14 A-2466-13T3
Regardless, "trial courts must still determine that the
probative value of [other wrongs] evidence is not substantially
outweighed by any of the [N.J.R.E.] 403 factors . . . ." Id. at
151. Application of those factors justified exclusion of evidence
of Wade's gang membership as it would have resulted in undue
prejudice, confused the issues and misled the jury. In particular,
had evidence been elicited that Wade was a gang member, it would
have opened the door to evidence that Brown and Jones were members
as well. Wade so alleged in his statement to police.
Even assuming gang membership may serve as circumstantial
evidence of exposure to guns generally, it is less probative of
possession of a gun on a particular occasion. Moreover, a jury
could misuse evidence of gang membership to conclude Wade was
unworthy of belief, or "a bad person in general," Cofield, supra,
127 N.J. at 336 (internal quotation marks and citation omitted),
uses barred by N.J.R.E. 608 and 404(b). In any event, counsel
elicited on cross-examination that Wade had seen guns regularly
on the streets.
Finally, we discern no merit to defendant's argument that the
court's evidentiary ruling denied him his constitutional rights
of confrontation and due process. The right to cross-examine
witnesses is "among the minimum essentials of a fair trial . . . ."
Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045,
15 A-2466-13T3
35 L. Ed. 2d 297, 308 (1973). Yet, "the right to confront and to
cross-examine is not absolute and may, in appropriate cases, bow
to accommodate other legitimate interests in the criminal trial
process." Id. at 295, 93 S. Ct. at 1046, 35 L. Ed. 2d at 309.
While "denial or significant diminution" of a defendant's rights
requires close scrutiny of those competing interests, ibid., a
court may place "reasonable limits on . . . cross-examination" to
guard against "prejudice, confusion of the issues . . . or
interrogation that is . . . only marginally relevant." State v.
Budis, 125 N.J. 519, 532 (1991) (internal quotation marks and
citation omitted). As there was no "denial or significant
diminution" of defendant's rights, we discern no constitutional
violation.
B.
Brown contends he was denied a fair trial because the
prosecutor improperly elicited Brown's silence in response to
police questioning. Brown points to a question to a different
witness, Wade. Wade testified that when the officers first stopped
him and Brown, they asked Wade about Jones. Wade testified that
he denied knowing Jones. The prosecutor then asked, "And did
Hopeton [Brown] answer that question as well?" Over an objection
of Brown's counsel, Wade confirmed that the question was also
asked of Brown and that he did not respond.
16 A-2466-13T3
The State may use a defendant's silence to impeach
credibility, when the silence does not occur "at or near" the time
of arrest, and "there is no government compulsion and the objective
circumstances demonstrate that a reasonable person in defendant's
position would have acted differently . . . ." State v. Stas, 212
N.J. 37, 58 (2012) (citation omitted). Yet, the silence "cannot
. . . be used as substantive evidence of a defendant's guilt."
Ibid. Here, although Brown's alleged silence did not occur at or
near the time of arrest, it apparently served as substantive
evidence. Although Brown did not deny knowing Jones, according
to Wade, he also declined to admit knowing him — perhaps
demonstrating a consciousness of guilt.
However, we view the admission of evidence of Brown's silence
to be harmless. First, Sauvigne contradicted Wade's account of
Brown's silence, and testified that he believed both men "said the
same thing" in denying they knew or were with Jones that evening.
Second, the substantive weight of Brown's silence, even if the
jury credited Wade over Sauvigne, was negligible. Brown was among
the three men spotted by the neighbor. He was in the company of
Wade, who admitted his involvement in the scheme, and attributed
the initial idea to Brown. Sauvigne testified he saw all three
men leave the scene together, and they later arrived together at
the police station to retrieve certain items that had been seized.
17 A-2466-13T3
Thus, Brown's silence added little to the evidence of Brown's
involvement and his guilt. Its admission did not deny defendant
a fair trial.
III.
Both defendants contend the court erred in its jury
instruction. Jones also raises points regarding the State's
summation, and the sufficiency of the evidence as to the trespass
and weapons offenses. Jones contends:
POINT III
FOURTH-DEGREE CRIMINAL TRESPASS SHOULD NOT
HAVE BEEN SUBMITTED FOR THE JURY'S
CONSIDERATION BECAUSE THE STATE'S EVIDENCE
FAILED TO ESTABLISH A PRIMA FACIE CASE OF
CRIMINAL TRESPASS BY UNLAWFUL ENTRY OF A
DWELLING. THEREFORE, THE TRESPASS CONVICTION
MUST BE VACATED AND THE CHARGE DISMISSED.
ALTERNATIVELY, THE COURT SHOULD FIND THE
INSTRUCTION ON THE CHARGE OF CRIMINAL TRESPASS
ERRONEOUS, AS IT CONFLATED THE FOURTH-DEGREE
OFFENSE WITH THE PETTY DISORDERLY PERSONS
OFFENSE. CONSEQUENTLY, THE TRESPASS
CONVICTION MUST BE VACATED AND A NEW TRIAL ON
THAT OFFENSE ORDERED.
POINT IV
DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
ON THE WEAPONS OFFENSES SHOULD HAVE BEEN
GRANTED.
POINT V
IN THREE SHORT INFLAMMATORY SENTENCES
DELIVERED IN SUMMATION THE PROSECUTOR ALSO
BOLSTERED ITS OWN WITNESS AND DENIGRATED THE
DEFENDANTS. THIS INSTANCE OF MISCONDCUT
18 A-2466-13T3
NECESSITATES REVERSAL OF DEFENDANT'S
CONVICTIONS AND A NEW TRIAL (Not Raised
Below).
Brown contends, in his Point II:
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY
FAILING TO CHARGE LESSER-INCLUDED OFFENSES TO
CONSPIRACY. U.S. Const. Amend. XIV; N.J.
Const. Art. I, ¶ 1.
He also contends in a pro se supplemental brief:
POINT 1
THE COURT ERRED IN CHARGING THE JURY WITH
ARMED ROBBERY; [THE] ERRONEOUS JURY CHARGE
DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT 2
CONVICTION FOR 2ND DEGREE CONSPIRACY TO COMMIT
ROBBERY LACKED LEGAL MERIT, AND THE COURT
ERRED IN NOT GRANTING A POST-VERDICT MOTION
FOR A NEW TRIAL.
A.
We find merit only in Jones's contention that the evidence
did not support his conviction of criminal trespass of a dwelling.2
We begin with the elements of the offense. A person commits a
fourth-degree offense if, "knowing that he is not licensed or
2
Jones filed a post-trial motion for a judgment of acquittal or,
alternatively, a new trial, which the court denied. He did not
specifically raise, and consequently the court did not
specifically address, the adequacy of the evidence in support of
the fourth-degree trespass conviction. Nonetheless, we conclude
Jones preserved his ability to raise the issue whether the jury
verdict was against the weight of the evidence. See R. 2:10-1.
The State does not disagree.
19 A-2466-13T3
privileged to do so, he enters or surreptitiously remains in any
. . . structure" and the "offense . . . is committed in a dwelling."
N.J.S.A. 2C:18-3(a). If the offense is not committed in a dwelling
(or other structures or facilities specifically identified), then
the offense is a disorderly persons offense. Alternatively, a
person commits the petty disorderly persons offense of defiant
trespass if:
knowing that he is not licensed or privileged
to do so, he enters or remains in any place
as to which notice against trespass is given
by:
(1) Actual communication to the actor;
or
(2) Posting in a manner prescribed by law
or reasonably likely to come to the attention
of intruders; or
(3) Fencing or other enclosure manifestly
designed to exclude intruders.
[N.J.S.A. 2C:18-3(b).]
Thus, subsection (a) covers entry into a house — a "structure" and
a "dwelling"; and subsection (b) covers entry into a house's
backyard — "any place." See State v. Braxton, 330 N.J. Super.
561, 566-67 (App. Div. 2000) (noting that the latter is not a
lesser-included offense of the former).
There was no evidence that Jones entered the dwelling of the
proposed robbery victim or any other dwelling or structure. Wade
20 A-2466-13T3
testified that he, Brown and Jones waited outside the target's
residence. After spotting the target, they eventually left the
vehicle and assembled by the side of the house. Then Jones left
the two and walked to the front of the house to see who was inside.
Jones returned to tell Wade and Brown that he had seen children.
Police then arrived. Wade testified he and Brown "went into the
next house; it was open . . . so we sat in the hallway. Lamar
[Jones], I don't know where he was at; he was on the side of the
house." Two officers followed Wade and Brown. Sauvigne ultimately
caught up with Jones.
Although we must give the State the benefit of all favorable
testimony and all favorable inferences that one could reasonably
draw, see, e.g., State v. Rodriguez, 141 N.J. Super. 7, 11-12
(App. Div. 1976), it would be pure speculation to conclude that
Jones entered the dwelling or any other structure. Wade did not
see him do so, and it is unreasonable to infer he did based on the
surrounding circumstances. Indeed, the State's theory was that
Jones separated himself from Wade and Brown in order to dispose
of the weapon.
We note that there was also an insufficient basis to convict
Jones of either disorderly persons or petty disorderly persons
trespass. The lack of proof that Jones entered the dwelling or
any other structure compels an acquittal of disorderly persons
21 A-2466-13T3
trespass under subsection (a). Furthermore, the jury instructions
were inadequate to convict defendant of petty disorderly persons
trespass. The verdict sheet asked the jury to determine whether
Jones, "knowing that he was not licensed or privileged to do so,"
either (1) "was in any place" or (2) "enter[ed] the premises" at
the specified address.3 Although being "in any place" without
authority is an element of a petty disorderly persons offense
under subsection (b), the jury was never instructed as to the
"notice against trespass" element of the petty disorderly persons
offense.
Therefore, a judgment of acquittal shall be entered as to
trespass. Any further comment on Jones's contentions regarding
the jury instruction on criminal trespass is unnecessary.
B.
Having searched the record, we are unconvinced that Brown
requested an instruction on the lesser-included offense of
conspiracy to commit theft. Thus, we review his argument under a
plain error standard, which requires a showing of error "clearly
capable of producing an unjust result." State v. Funderburg, 225
N.J. 66, 79 (2016) (quoting R. 2:10-2). The court is required to
give an unrequested instruction sua sponte "when there is obvious
3
Notably, as the question was posed in the disjunctive, it is
unclear whether the jury even found entry at all.
22 A-2466-13T3
record support for such a charge"; in other words, "[o]nly if the
record clearly indicates a lesser-included charge — that is, if
the evidence is jumping off the page . . . ." Id. at 81 (internal
quotation marks and citations omitted).
Brown contends that the evidence that he knew Jones possessed
a gun was equivocal. Wade testified that when they arrived at the
target's house, Jones retrieved the gun from the trunk. Wade
further stated that Brown was standing at the side of the car and
could not see precisely what Jones was getting. But, particularly
in light of the other evidence in support of the crime as charged,
uncertainty regarding whether Brown saw the gun falls short of
"obvious record support" for charging the lesser-included offense
that Brown conspired with the others only to commit a theft.
Wade testified that Brown was the one who proposed to "rob"
the victim, and Brown was the one who disclosed the target
possessed over $100,000. All three conspirators waited for the
target to be in his home, and they all had ski masks — both facts
suggesting they intended to confront their victim. It is also
implausible to believe that their intended target would part with
over $100,000 unless "threaten[ed] . . . or purposely put[] . . .
in fear of immediate bodily injury . . . ." N.J.S.A. 2C:15-1(a).
Although this review of the record demonstrates that Brown
has failed to meet his burden, there is even less factual basis
23 A-2466-13T3
for the lesser-included offense when one considers the evidence
surrounding Wade's and Jones's intent. After all, Wade testified
that Jones possessed the gun; Wade saw that he did; Jones's DNA
was on the gun; and the gun was found near the spot where Jones
was arrested. There can be no doubt that Jones and Wade planned
to commit a robbery that night.
Brown does not consider the latter evidence in his brief
because he contends he could conspire to commit a theft even if
Jones and Wade conspired with him to commit a robbery. His
argument relies on our Court's adoption of the "unilateral"
approach to conspiracy. We are unpersuaded by his application of
this doctrine.
An essential element of a conspiracy is the agreement with
another to commit a specific crime:
A person is guilty of conspiracy with another
person or persons to commit a crime if with
the purpose of promoting or facilitating its
commission he:
(1) Agrees with such other person or
persons that they or one or more of them will
engage in conduct which constitutes such crime
or an attempt or solicitation to commit such
crime; or
(2) Agrees to aid such other person or
persons in the planning or commission of such
crime or of an attempt or solicitation to
commit such crime.
[N.J.S.A. 2C:5-2(a).]
24 A-2466-13T3
As noted in State v. Del Fino, 100 N.J. 154, 160 (1985), which
Brown cites, this definition focuses a trier of fact on the
individual conspirator's culpability, rather than the culpability
of the conspiracy as a whole.
But the drafters' "unilateral" approach only meant that there
need not be at least two guilty conspirators in order for a
conspiracy to exist. Ibid. For example, a conspiracy can exist
where the defendant's only co-conspirator faked his agreement.
See State v. Conway, 193 N.J. Super. 133, 159-60 (App. Div.)
("[U]ndercover agents can be conspirators for the purpose of
proving that a conspiracy existed."), certif. denied, 97 N.J. 650
(1984); State v. La Forge, 183 N.J. Super. 118, 119-21 (Law Div.
1981); see also Paul H. Robinson & Jane A. Grall, Element Analysis
in Defining Criminal Liability: The Model Penal Code and Beyond,
35 Stan. L. Rev. 681, 752-53 (1983) (noting that a "unilateral
concept of agreement" only requires "that the defendant believe
that he has entered into an agreement with the co-conspirator" and
that the nonliability of a co-conspirator is not a defense under
this theory).
Indeed, the drafters of this provision distinguished its
definition from others that required "at least two guilty
conspirators" in order for there to be a conspiracy at all. II
New Jersey Criminal Law Revision Commission: Commentary p. 131
25 A-2466-13T3
(1971) (internal quotation marks and citation omitted). Quoting
the Tentative Draft of the Model Penal Code, the Criminal Law
Revision Commission noted three contexts in which the unilateral
approach would yield a different result from a bilateral approach:
"[w]here the person with whom the defendant conspired" (1) "is
irresponsible or has immunity"; (2) "secretly intended not to go
through with the plan"; and (3) "has not been apprehended or tried,
or his case has been disposed of in a manner that would raise
questions of consistency about a conviction of the defendant."
Ibid.
Brown suggests a different understanding of "unilateral"
conspiracy. It does not involve a conspiracy with an irresponsible
actor or an undercover officer who "agrees" to engage in criminal
conduct but does not intend to follow through; nor does it involve
a conspiracy with another person who has been or is later
acquitted. Brown contends a conspiracy could exist without a
meeting of the minds at all: he could think he was agreeing with
his cohorts to commit a theft, while his cohorts believed he was
agreeing to commit a different crime. Brown has provided no
precedent for that precise proposition, nor have we found any. In
any event, the trial court was not required, sua sponte, to fashion
an instruction based on such a novel theory.
26 A-2466-13T3
C.
The remaining issues presented by Jones and by Brown in his
supplemental pro se brief lack sufficient merit to warrant extended
discussion. R. 2:11-3(e)(2). The following brief comments with
respect to Jones's points will suffice.
The court did not err in denying Jones's motion for a judgment
of acquittal on the weapons offenses as there was ample evidence
from which a jury could reasonably convict. Although Jones raised
questions about the chain of custody of the firearm and other
aspects of the DNA testing, Sauvigne testified that he
appropriately handled the firearm and secured it. An expert
testified that Jones's DNA was found on the magazine. Furthermore,
Wade testified that Jones possessed the firearm; Jones fled
separately from Brown and Wade when police arrived; and the firearm
was found near the spot where Jones was stopped.
Jones's claim of prosecutorial misconduct pertains to remarks
in the prosecutor's closing statement. To persuade the jury that
the State's agreement with such an unlikable character as Wade was
unavoidable, the prosecutor compared the State's agreement with
one federal prosecutors were famously constrained to make with the
noted organized crime figure, John Gotti. As defense counsel did
not object, we presume the comments were not prejudicial. State
v. Frost, 158 N.J. 76, 83 (1999). We are unconvinced there was
27 A-2466-13T3
error, let alone plain error, warranting a new trial. The
prosecutor's remarks were neither inflammatory, nor were they
likely to be understood to liken defendants to "mob members." If
anything, they defamed the State's own witness.
Affirmed as to Brown; affirmed in part and reversed in part
as to Jones.
28 A-2466-13T3