Opinion
DOCKET NO. A-2011-12T1 DOCKET NO. A-2988-12T1 DOCKET NO. A-3099-12T1
09-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRANDON COOPER, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRENT JOHNSON, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEON PETERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Brandon Cooper (Michele A. Adubato, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent in A-2011-12 (Deborah A. Hay, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Brent Johnson (Alan I. Smith, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent in A-2988-12 (James F. Smith, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Leon Peterson (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent in A-3099-12 (James F. Smith, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-11-2778. Joseph E. Krakora, Public Defender, attorney for appellant Brandon Cooper (Michele A. Adubato, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent in A-2011-12 (Deborah A. Hay, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Brent Johnson (Alan I. Smith, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent in A-2988-12 (James F. Smith, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Leon Peterson (John Douard, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent in A-3099-12 (James F. Smith, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a jury trial, co-defendants Brandon Cooper, Brent Johnson, and Leon Peterson were convicted of one count of armed robbery (N.J.S.A. 2C:15-1); one count of conspiracy to commit robbery (N.J.S.A. 2C:5-2, 2C:15-1); one count of possession of a handgun for an unlawful purpose (2C:39-4(a)); and one count of unlawful possession of a weapon (2C:39-5(b)). In addition, Cooper and Johnson were convicted of a second count of armed robbery; one count of aggravated sexual assault (2C:14-2); and one count of sexual assault (2C:14-2(c)).
In these appeals, which we calendared back-to-back and herein consolidate for purposes of issuing a single opinion, Cooper raises the following contentions for our consideration:
POINT I: IT WAS ERROR FOR THE COURT TO GRANT THE STATE'S MOTION TO WITHDRAW DEFENDANT'S RETRAXIT PLEA OF GUILTY.
POINT II: THE COURT ERRED IN REFUSING TO INSTRUCT THE JURY, AT DEFENDANT'S REQUEST, OF THE LESSER-INCLUDED OFFENSE OF CRIMINAL SEXUAL CONTACT.
POINT III: THE DEFENDANT'S MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED.
POINT IV: THE CONSECUTIVE SENTENCES IMPOSED UPON MR. COOPER WHICH TOTALED 27 YEARS WITH 85% WITHOUT PAROLE WERE EXCESSIVE AND MUST BE MODIFIED AND REDUCED. (Not raised below).
Johnson raises the following contentions:
POINT I: SINCE THE VIDEOTAPE CREATED BY THE TROPICANA SECURITY SUPERVISOR WAS UNABLE TO BE PROPERLY "AUTHENTICATED," THE TRIAL COURT ERRED IN ADMITTING IT INTO EVIDENCE.
POINT II: THE TRIAL COURT COMMITTED PLAIN ERROR BY PERMITTING THE JURY TO HAVE UNSUPERVISED ACCESS TO THE VIDEOTAPE DURING ITS DELIBERATIONS (NOT RAISED BELOW).
POINT III: DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE PROSECUTOR IMPROPERLY "BOLSTERED" THE IDENTIFICATION OF DEFENDANT (NOT RAISED BELOW).
POINT IV: DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL "OVERZEALOUSNESS" IN SUMMATION (NOT RAISED BELOW).
POINT V: IMPOSITION OF THE AGGREGATE CUSTODIAL TERM OF 25 YEARS WAS MANIFESTLY EXCESSIVE AND A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.
Peterson raises the following contentions:
POINT I: THE COURT'S FAILURE TO PROVIDE THE JURY WITH A CHARGE EXPLAINING HOW MR. PETERSON COULD BE FOUND GUILTY OF A LESSER-INCLUDED OFFENSE AS AN ACCOMPLICE TO THE CO-DEFENDANTS IF HE DID NOT SHARE THEIR INTENT TO COMMIT THE SPECIFIC GREATER OFFENSE OF FIRST-DEGREE ROBBERY DEPRIVED MR. PETERSON OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT II: THE FIFTEEN-YEAR AGGREGATE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND MUST BE REDUCED.
We discern the following facts from the record in light of the jury's verdict. On the evening of May 27, 2011 and into the early morning hours of May 28, 2011, S.J. was at the Tropicana Hotel with friends. At some point during the early morning, S.J. left her hotel room with a friend, M.S. They decided to go to the parking garage to smoke a cigarette.
S.J. and M.S. were only on the parking deck for a few minutes when they were approached by a group of three men. One of the men asked M.S. for a cigarette, then punched him. On seeing this, S.J. ran toward the elevator, and M.S. followed. M.S. and S.J. made it to the elevator lobby, but the men caught up. The men hit M.S. again, while someone wearing a purple shirt, later identified as Cooper, pulled S.J. back into the parking garage.
The men proceeded to kick, punch, and beat M.S., who fell to the ground, and eventually was knocked unconscious. During the attack, M.S. felt someone searching through his pockets. While he could not see the faces of his assailants because he was trying to protect his head, he was able to identify the clothing of his three attackers. He saw that one was wearing purple, one was wearing orange shorts, and the third was wearing a checkered shirt. He did not see any weapons during the attack.
Cooper stayed with S.J. while the other assailants attacked M.S. Initially, Cooper touched S.J. on top of her clothes in the area of her chest, buttocks, and vagina. While this was occurring, S.J. told him to stop and tried to scream for help. Cooper ordered her to keep quiet.
During testimony, S.J. referred to defendants by the clothing they were wearing that night. She only attempted to identify defendants at the end of her redirect, and then she misidentified Johnson as wearing the purple shirt and Cooper as wearing the tan shirt and orange shorts.
Around the time of the attack, Kenneth Wicks, a patron of the casino that evening, left the casino with his friend Steven Petosa and went to the parking garage. When Wicks and Petosa got off the elevator, Wicks walked into the garage and observed M.S. lying on the ground with blood coming out of his nose. The two men standing over M.S. claimed that he was their friend and was drunk. Wicks did not believe them and went back into the lobby to tell his friend. When Petosa went into the garage and saw M.S. covered in blood, he asked what had happened. M.S. replied that the men standing around him had mugged him, he was hurt and he needed help.
At this point, one man lifted his shirt and showed the men the handle of a gun. As he displayed the gun, he said, "You should get out of here before something happens." During this exchange, the men observed S.J. leave with one other person. Wicks and Petosa immediately left the area, and Petosa called 9-1-1. They began to drive away, but returned out of concern for the victim. By the time they returned, the attack was over, and no one involved was in the area.
At some point, Johnson stopped participating in the attack on M.S. and came to where Cooper and S.J. were standing. He told her to be quiet and then showed S.J. that he had a black gun in his waistband. Johnson told her that if she did not do what they wanted that he would kill her.
In response, S.J. offered to give the men money if they took her to an ATM machine. Cooper and Johnson responded, "what if we don't want money? What if we want something else?" At this moment, the two men took S.J. behind a wall, and told her to let them do what they wanted or they would kill her.
As they were behind the wall, Cooper started to touch S.J. again in the area of her breasts, buttocks, and vagina. This time Cooper not only touched her on top of her clothes, but also touched her underneath her clothes. S.J. testified that during this assault, Cooper penetrated her vagina with his finger. While Cooper was touching S.J., Johnson participated, limiting his conduct to touching her breasts. At the same time, the men were also physically assaulting S.J. Her arm was fractured as a result of the physical attack. In addition, someone took her camera and cell phone from her.
After the men stopped assaulting M.S. and he regained consciousness, the men took his shirt from him, and told him to walk to the other side of the parking deck. As he was walking away, he saw the man in the purple shirt holding S.J. "like hugging her very closely from behind," while the man wearing orange was walking "a little bit in front of her[.]" After he completed his walk, one of the men told him to take off the rest of his clothes, so he removed the remainder of his clothes except for his underwear.
Near the end of the incident with Cooper and Johnson, S.J. was able to run away toward the elevators. However, the men caught up with her and forced her to get into the elevator with them as they wanted to go to her hotel room. When the elevator doors opened next, the police were waiting and arrested the two men. The police searched both men and found a black handgun and M.S.'s cell phone on Johnson. A search of Cooper did not reveal any items. In the course of processing the arrests, the police identified Cooper as the man wearing the purple shirt, and Johnson as the man wearing the tan shirt and orange shorts.
When Officer Michael Losasso responded to the Tropicana hotel, security directed his attention to an individual acting suspiciously, later identified as Peterson. Security had tracked Peterson on camera from the floor of the robbery to the site where Losasso observed him. At the time, Peterson was reaching into a trash can with both hands. When the officer reached him, Losasso told Peterson to put his hands behind his head and arrested him. Losasso's search of Peterson did not reveal a weapon but did reveal a wallet that belonged to M.S. Next, Losasso searched the trash can, and found a pair of pants, pair of shoes, a shirt, and a belt. M.S. later identified the items as his.
The police later obtained the surveillance video from the hotel. Cody Clisham, the security supervisor at the hotel, observed some of the events of the evening live through the hotel's security cameras. The hotel had an extensive surveillance system that included feeds from more than 900 cameras. After the incident was over, Clisham followed hotel procedure and compiled the feeds of various cameras that had captured the incident into a single video. The video did not include images from all the hotel's cameras as Clisham, using his professional judgment, only included the recorded images pertaining to the incident. According to Clisham, he included the full camera recording of the location of the incident for the time period of the event and any recorded images that contained either of the two victims or any person considered a suspect. Clisham testified that he spent a considerable amount of time compiling the video and he did not omit any video recording in which he saw the victims or any defendant.
On November 22, 2011, a grand jury returned an indictment against Cooper, Johnson, and Peterson for two counts of first degree robbery, (N.J.S.A. 2C:15-1) (counts one and two); conspiracy to commit robbery, (N.J.S.A. 2C:5-2, 2C:15-1) (count three); possession of a firearm for an unlawful purpose, (2C:39-4(a)) (count four); and unlawful possession of a handgun (2C:39- 5(b)) (count five). The grand jury charged Cooper and Johnson with the additional crimes of aggravated sexual assault (2C:14-2) (count six), and sexual assault (2C:14-2(c)) (count seven).
On May 7, 2012, Cooper entered a plea of guilty before the trial court to first-degree robbery, second-degree conspiracy to commit robbery, and first-degree aggravated sexual assault. The agreement included the State recommending a sentence of twelve years, while Cooper reserved the right to argue for a lower sentence. Because the case was already past the plea cut-off date and scheduled for trial, the parties had to specify a change in circumstances for allowing a late plea. R. 3:9-3(g). Both the State and Cooper's attorney stated at the plea hearing that the changed circumstances were that the victim was unwilling to testify and that Cooper agreed to plead guilty and provide "truthful testimony" against his co-defendants. Additionally, that contingency was contained in the plea agreement, which was signed by Cooper.
At the plea hearing, Cooper provided a factual basis for the plea, stating that he and the other two co-defendants participated in a robbery, where Johnson was armed. He further testified that he and Johnson sexually assaulted S.J. and that he digitally penetrated her vaginal area.
Subsequently, the State had a pre-trial meeting with Cooper to discuss his trial testimony. At this meeting, Cooper provided a completely different version of events than that provided in his plea colloquy. In particular, Cooper denied his involvement in the robbery, denied that Johnson had a handgun, and denied that any of the co-defendants participated in a robbery. He further denied sexually assaulting S.J. He stated that his prior statements to the court were not true and maintained this position despite his attorney informing him of the consequences of his stance.
After this meeting, the State moved to vacate his plea because they were concerned that Cooper would not provide truthful testimony. Cooper opposed this motion and requested specific performance of the plea agreement. On July 30, 2012 the court granted the State's motion to vacate Cooper's plea. In granting the State's request, the court found that the plea agreement was conditioned on Cooper's truthful testimony and Cooper was unwilling to comply with the conditions.
At the trial, the victims, the arresting officer, the investigating officer, the two witnesses, and the hotel security supervisor testified to the facts stated above. Additionally at trial, the court played the video compiled by Clisham for the jury. This tape was again played during M.S.'s testimony, during which time M.S. described the events as they were shown on screen.
Before the jury began deliberating, the judge suggested that the jury should have access to the video during deliberations. The court proposed two possibilities to counsel: (1) closing off the courtroom to permit the jury to use the courtroom as its jury deliberation room; or (2) giving the jury unsupervised access to the video in the jury deliberation room. None of the three defendants voiced an objection to either procedure and left the decision to the judge's discretion. Ultimately, the court staff arranged for a television to be brought to the jury deliberation room.
The jury convicted both Cooper and Johnson on all the counts. The jury returned a verdict of guilty for Peterson on all counts except one count of robbery (of S.J.), which was a verdict of not guilty.
After the trial, Cooper filed a motion for a new trial. Cooper claimed that he was entitled to a new trial because a police detective testified, both to the grand jury and at trial, that M.S. told him he saw a gun, but that M.S. testified that he saw no gun. The judge denied the motion, reasoning that this matter was explicitly and thoroughly developed on cross-examination. Thus, the judge found no need for a new trial since the jury was able to make a credibility determination of the officer.
In sentencing Cooper, the judge found that the aggravating factors substantially outweighed the mitigating factors. On the robbery counts, the judge sentenced him to two concurrent seventeen year terms in state prison subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the aggravated sexual assault count, after merging the sexual assault count, the judge sentenced Cooper to a ten year term of incarceration, also subject to NERA parole ineligibility. The judge found that the aggravated sexual assault was a separate and distinct crime from the robbery, and determined that this count was to run consecutively to the robbery sentences. On the weapon conviction, the court gave Cooper a three year term of incarceration, concurrent to any other sentence.
As to Peterson, the court found multiple aggravating factors and no mitigating factors. Accordingly, the court sentenced Peterson to fifteen years on the armed robbery count, subject to NERA parole ineligibility. The judge sentenced Peterson to a three year term of incarceration on the weapon charge, concurrent with the robbery sentence.
As to Johnson, the court found multiple aggravating factors and no statutory mitigating factors. On the robbery charges, the court sentenced him to two concurrent fifteen year terms of incarceration subject to NERA parole ineligibility. The judge also made the three year sentence for the weapons charge concurrent with the armed robbery. On the aggravated sexual assault charge, after merging with the sexual assault charge, the court sentenced Johnson to ten years, consecutive to the robbery sentence.
Each of the three defendants filed an appeal. We address their contentions in turn.
I.
As previously stated, Cooper alleges that the court erred in permitting the State to withdraw the plea agreement, in failing to charge the jury on the lesser included offenses of criminal sexual contact, in denying his motion for a new trial, and in imposing an excessive sentence. We reject Cooper's claim that his plea should not have been vacated. We find that the trial judge committed reversible error in failing to charge the lesser included offense of criminal sexual contact as the evidence adduced at trial supported that charge. We have considered Cooper's remaining contentions and find them without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
A.
Cooper first contends that the trial judge erred by permitting the State to withdraw from the plea agreement and denying specific performance of the agreement. We are not persuaded.
"'Plea bargaining has become firmly institutionalized in this State as a legitimate, respectable and pragmatic tool in the efficient and fair administration of criminal justice.'" State v. Means, 191 N.J. 610, 618 (2007) (quoting State v. Taylor, 80 N.J. 353, 360-61 (1979)). Plea bargaining affords a "mutuality of advantage" both to the State and a defendant in that it "'enables a defendant to reduce his [or her] penal exposure and avoid the stress of trial while assuring the State that the wrongdoer will be punished and that scarce and vital judicial and prosecutorial resources will be conserved through a speedy resolution of the controversy.'" Ibid. "Generally, once an agreement is reached and the defendant pleads guilty, '[d]ue process concerns . . . inhibit the ability of the prosecutor to withdraw from a guilty plea.'" Ibid. (quoting State v. Warren, 115 N.J. 433, 445 (1989)) (alterations in original).
A trial court may vacate a plea "when the interests of justice will not be served by approval of the terms of the plea agreement." Id. at 619 (quoting R. 3:9-3(e)). While the Court Rules expressly permit a defendant to move the court to vacate a plea, it does not address vacation by the State. Id. at 620. Even so, the State is free to place conditions on a plea and to withdraw from the plea agreement if the conditions are not met. State v. Conway, 416 N.J. Super. 406, 411 (App. Div. 2010); State v. Smith, 306 N.J. Super. 370, 383 (App Div. 1997). Importantly, those conditions must be expressly contained within the agreement; otherwise a plea agreement must "be enforced according to its terms, without implying unstated terms favorable to the State and unfavorable to the defendant." Conway, supra, 416 N.J. Super. at 411.
Cooper argues that the court erred in permitting the State to withdraw the plea because the court did not make it clear that Cooper was obligated to testify against the other defendants. We find this contention without merit as it is not supported by the record.
While the trial court did not expressly inform Cooper of his obligation to provide truthful testimony as part of the plea agreement, Cooper's counsel placed the condition that Cooper had agreed to give "truthful testimony" on the record during the plea hearing. Cooper's counsel also acknowledged the agreed-upon condition of truthful testimony on the "Request to Plead Case off the Trial List" form. Moreover, Cooper himself signed the written plea agreement that contained the condition that he give truthful testimony, and on the page containing the condition, he initialed less than one inch from the condition. While the court may not have explicitly discussed with Cooper that he had an obligation to provide truthful testimony, the court did ask Cooper if he went over the plea form with his lawyer, and whether his lawyer answered his questions. Cooper answered affirmatively.
Under these circumstances, given that the condition to provide truthful testimony was expressly written into the agreement and placed on the record, the judge did not abuse his discretion in permitting the State to withdraw from the plea agreement. Conway, supra, 416 N.J. Super. at 411. We are satisfied that the interests of justice would not be served by allowing Cooper to obtain the benefit of a very generous plea offer while not fulfilling the condition which was part of the agreement. See R. 3:9-3(e).
B.
Cooper's second contention is that the court erred in failing to charge the jury on the lesser included offense of criminal sexual contact. "Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Under certain circumstances, defendants are entitled to jury charges on lesser included offenses. State v. Jenkins, 178 N.J. 347, 361 (2004). If a defendant requests a lesser included charge, then he or she is entitled to a charge on any lesser included offense for which "a rational basis exists for the jury to acquit the defendant of the charged offense and convict him [or her] of the lesser offense." State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003). Even if the defendant does not ask for such a charge, the trial court has an independent obligation to instruct the jury on lesser included offenses where the facts at trial "clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361.
If an error at trial is not objected to at trial, such error will only result in reversal "if the mistake 'was clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jury to a result it otherwise might not have reached.'" Ibid. (quoting State v. Brims, 168 N.J. 297, 306 (2001)). However, because "jury charges are especially critical in guiding deliberations in criminal matters, improper instructions on material issues are presumed to constitute reversible error." Ibid.; Harris, supra, 357 N.J. Super. at 541-42; State v. Jordan, 240 N.J. Super. 115, 120-21 (App. Div.), certif. denied, 122 N.J. 328 (1990). Courts are hesitant to place the jury in an "all-or-nothing" position where it is either forced to convict on the greater offense or acquit entirely. Harris, supra, 357 N.J. Super. at 542.
Under certain circumstances, sexual contact may be a lesser included offense to sexual assault. Both sexual assault and aggravated sexual assault require penetration, N.J.S.A. 2C:14-2, while sexual contact and aggravated sexual contact do not. N.J.S.A. 2C:14-3. Consequently, if a basis exists to find that penetration did not occur, the lesser included offense of criminal sexual conduct may be charged to the jury. State v. Muhammad, 182 N.J. 551, 575 (2005); see also State v. Gallagher, 286 N.J. Super. 1, 14 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).
The State disputes Cooper's claim that he appropriately raised this issue at trial. In the charge conference, Cooper's counsel requested that the judge make a charge of criminal sexual contact in the event Cooper was acquitted of first-degree armed robbery. The court responded that the degree of robbery was not relevant to the sexual assault charges. Trial counsel did not press the issue further. We cannot find that the court denied defendant's request to charge a lesser included offense as it was not made with any specificity. However, this discussion was at least sufficient to alert the court to a possible lesser included offense issue and the trial court was not forced "to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." State v. Denofa, 187 N.J. 24, 42 (2006). Even so, when the judge charged the jury without giving a lesser included charge, defendant made no objection to the charge. Accordingly, this contention is subject to the plain error doctrine. State v. Singleton, 211 N.J. 157, 182 (2012) (failure to object to a jury charge is subject to plain error analysis).
That said, we are convinced in this case that the failure to charge the lesser-included offense of aggravated sexual contact and sexual contact was plain error as the charge was clearly indicated by the evidence. See Jenkins, supra, 178 N.J. at 361. Defendant's theory of the case was that no sexual assault occurred. In his summation, defense counsel argued the video did not show an assault, there was no torn clothing, no medical treatment, no medical evidence of rape, and no DNA samples. He also highlighted how confused S.J. was as she incorrectly identified defendants in court.
In this case, the evidence of Cooper's guilt, as well as Johnson's, for the sexual assault charges was not overwhelming. The State's case rested entirely on the testimony of the victim, who was clearly under emotional distress and confused when giving her statement to the police. She was also highly emotional testifying in court and misidentified her assailants at trial. It is well-established that
[a] jury is not bound to believe the testimony of any witness, in whole or in part. Jurors "may reject what in their conscientious judgment ought to be rejected and accept that which they believe to be credible. The model jury charge specifically instructs jurors that they must "determine the weight" to be given to the testimony of each witness and that they may "accept all . . ., a portion . . ., or none" of that witness's testimony.
[Muhammad, supra, 182 N.J. at 577 (citations and quotation marks omitted).]
In Muhammad, where the accuser claimed she was sexually assaulted, the Court noted that rape is "an act that by its nature involves physical contact between the assailant and the victim." Id. at 578. In finding the trial court's charge of sexual contact appropriate, the Court reasoned that "[t]he verdicts might reflect the fact that the jury credited part and rejected part of [the victim's] testimony, and concluded that defendant touched [the victim] . . ., but did not penetrate her." Id. at 576, 578. Similarly, the jury could have accepted the part of S.J.'s testimony that had additional corroboration, such as surveillance footage, while rejecting the portions of her testimony that did not have independent support in the evidence. See Jordan, supra, 240 N.J. Super. at 120-21. The jury should not have been left with the "all-or-nothing" choice of convicting the defendants on sexual assault or acquitting them entirely of any sexual offense against S.J. See Harris, supra, 357 N.J. Super. at 542. Accordingly, we are constrained to reverse Cooper's conviction on count six and seven and remand for a new trial on those counts.
II.
Peterson charges two points of reversible error on appeal. First, Peterson argues that the trial court's jury instruction on accomplice liability was deficient. Second, Peterson argues that his sentence was excessive. Because we agree with Peterson's argument that the trial court's jury instruction on accomplice liability was deficient, we are constrained to reverse his conviction. Consequently, we need not address his claim of error in sentencing.
Peterson contends that the court's failure to explain to the jury that Peterson could be found guilty of a lesser included offense as an accomplice if he did not share his co-defendants' intent to commit armed robbery deprived Peterson of a fair trial. Because he did not object to the instruction when the court gave it, "we review the charge for plain error and reverse only if such an error was 'clearly capable of producing an unjust result.'" State v. Miller, 205 N.J. 109, 126 (2011) (quoting R. 2:10-2).
Peterson does not contend that the accomplice liability charge was deficient for any of the other counts of the complaint.
We begin by summarizing the relevant statutes and jury charges. The robbery statute provides, in pertinent part, that "[a] person is guilty of robbery if, in the course of committing a theft, he . . . [i]nflicts bodily injury or uses force upon another[] or . . . [t]hreatens another with or purposely puts him [or her] in fear of immediate bodily injury[.]" N.J.S.A. 2C:15-1(a)(1),(2). "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 . . . is armed with . . . a deadly weapon." N.J.S.A. 2C:15-1(b). Here the indictment charged Peterson with two counts of first-degree robbery. Nevertheless the court charged both first and second-degree robbery, apparently as a lesser included offense.
Specifically, after defining the elements of theft, robbery and armed robbery, the court said, "If you find that the State has proven, beyond a reasonable doubt, the Defendant committed the crime of robbery . . ., but if you find the State has not proven, beyond a reasonable doubt, that the Defendant was armed with or used or purposely threaten the immediate use of a deadly weapon, then you must find the Defendant guilty of robbery in the second degree." --------
The judge also charged the jury on accomplice liability. The model jury charges include two charges on accomplice liability: one for use when no lesser included offenses are charged, the other for use when lesser included offenses are charged. The former states in relevant part:
A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he/she (a) solicits such other person to commit it and/or (b) aids or agrees to aid such other person in planning or committing it.
This provision of the law means that not only is the person who actually commits the criminal act responsible for it but one who is legally accountable as an accomplice is also responsible as if he/she committed the crime(s) himself/herself.
. . . .
In order to convict the defendant as an accomplice to the crime(s) charged, you must find that the defendant had the purpose to participate in that particular crime(s). He/she must act with the purpose of promoting or facilitating the commission of the substantive crime(s) with which he/she is charged.
. . . .
In sum, in order to find the defendant guilty of committing the crime(s) of ___, the State must prove each of the following elements beyond a reasonable double:
1. That X committed the crime(s) of ___.
2. That this defendant's purpose was to promote or facilitate the commission of the offense(s).
3. That this defendant solicited him/her to commit it/them and/or did aid or agree or attempt to aid him/her in planning or committing it/them.
4. That this defendant possessed the criminal state of mind that is required to be proved
against the person who actually committed the criminal act.
[Model Jury Charge (Criminal), "Liability for Another's Conduct" (1995). (N.J.S.A. 2C:2-6), Accomplice, Charge # One - Where defendant is charged as accomplice and jury does not receive instructions on lesser included charges).]
Charge # 2 has the same language but adds the following relevant language:
Now, as I have previously indicated, you will initially consider whether the defendant should be found not guilty or guilty of acting as an accomplice of X with full and equal responsibility for the specific crime(s) charged. If you find the defendant guilty of the specific charge(s), then you need not consider any lesser charges(s).
If, however, you find the defendant not guilty of acting as an accomplice of X on the specific crime(s) charged, then you should consider whether the defendant did act as an accomplice of X but with the purpose of promoting or facilitating the commission of some lesser offense(s) than the actual crime(s) charged in the indictment.
Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his/her own state of mind and not on anyone else's.
Guided by these legal principles, and if you have found the defendant not guilty of the specific crime(s) charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charge of ___. I will now explain the
elements of that offense to you. (Here the court may tell the jury what view of the facts could lead to this conclusion).
In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his/her own state of mind and no one else's.
[Model Jury Charge (Criminal), "Liability for Another's Conduct" (1995). (N.J.S.A. 2C:2-6), Accomplice, Charge # Two - Where defendant is charged as an accomplice and jury is instructed as to lesser included charges.]
The court here essentially used Charge # 1 for a case where a lesser included offense of robbery was charged. The reason for the latter additional instruction in Charge # 2 is that "when an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (alteration in the original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987). The court should also explain to "the jury what . . . facts could lead to this conclusion." Id. at 533.
Failure to properly instruct the jury on accomplice liability for lesser included offenses is usually reversible error. See Jenkins, supra, 178 N.J. at 360-61; State v. Savage, 172 N.J. 374, 397-98 (2002); State v. Hogan, 297 N.J. Super. 7, 23 (App. Div.), certif. denied, 149 N.J. 142 (1997). That is because "[a]n erroneous jury charge 'when the subject matter is fundamental and essential or is substantially material' is almost always considered prejudicial." State v. Maloney, 216 N.J. 91, 104-05 (2013) (quoting Green, supra, 86 N.J. at 291. "Such errors are 'poor candidates for rehabilitation under the harmless error philosophy.'" Id. at 105 (quoting State v. Simon, 79 N.J. 191, 206 (1979)). We conclude that the judge's inadequate and incomplete instruction constitutes reversible error under a plain error analysis.
"An accomplice may be guilty of armed robbery even though he did not personally possess or use the firearm in the course of the commission of the robbery." State v. White, 98 N.J. 122, 130 (1984). On the other hand, "[i]t is possible for an accomplice to be guilty of robbery and for his compatriot to be guilty of armed robbery." Id. at 131. Trial courts have an obligation to instruct a jury "properly on the law and on all clearly indicated less-included offenses, even if at odds with the strategic considerations of counsel." State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); see also Jenkins, supra, 178 N.J. at 361 ("A trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense."). "However, a court is not obligated to, indeed should not, instruct a jury to return a verdict that would clearly be unwarranted by the record." State v. Crisantos, 102 N.J. 265, 273 (1986). A charge can be clearly indicated by the record so long as there is evidence to support the lesser included offense. State v. Samuels, 189 N.J. 236, 251-52 (2007). Here the jury reasonably could have returned a verdict of guilty on the second degree robbery.
As previously discussed, "[r]obbery 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 . . . is armed with . . . a deadly weapon." N.J.S.A. 2C:15-1(b). Here, Johnson was armed with a deadly weapon and the jury found he committed first degree robbery.
The State tried Peterson on the theory that he was Johnson's accomplice to the armed robbery and the jury so found. In contrast, Peterson's theory was that the video showed he was very uninvolved, participated very little in the beating, and stayed completely away from S.J. Importantly, there was no evidence that Johnson displayed his gun to Peterson before or during the robbery of M.S. or that Peterson had any knowledge that Johnson had a weapon. Indeed, in sentencing Peterson, the judge noted this lack of evidence that Peterson knew of any weapon before the robbery was underway. Hence, the evidence clearly indicated a basis to find Peterson not guilty of first-degree robbery and guilty of second-degree robbery.
In light of the existence of evidence, the judge's failure to charge the appropriate accomplice charge must be examined to see if it was capable of producing an unjust result. In State v. Ingram,, 196 N.J. 23, 40 (2008), the Court found that under the facts in that case, the trial court's failure to charge that "two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind" and that each participant's liability "is dependent on his/her own state of mind and not on anyone else's" did not result in reversible error. However, as the Court stressed, this conclusion was reached as a result of "a detailed review of the comprehensive jury charge, as a whole, actually given in this case[, which] would have been largely unnecessary" had the proper charge been given. Id. at 41.
In Ingram, the Court reaffirmed its holding in Bielkiewicz that "when a prosecution is based on the theory that a defendant acted as an accomplice, the court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability[,]" and emphasized that the jury must be so instructed. Ibid. "That reaffirmation is based on a core and indisputable notion: that a principal and an accomplice, although perhaps liable for the same guilty act, may have acted with different or lesser mental states, thus giving rise to different levels of criminal liability." Ibid.
This case differs from Ingram for two significant reasons. First, in contrast to Ingram, where the defendant was indicted for robbery and theft, the indictment here was only for two counts of first-degree robbery and did not include second-degree robbery. Hence, in the jury charge, the trial court did not put the emphasis on the lesser included offense that is generally warranted by a separate count of an indictment. Second, in discussing both the lesser included offenses as well as the accomplice liability charge, the trial court did not give the jury examples tailored to the facts of the case. "In addition to requiring trial courts to instruct juries that an accomplice can have a different mental state from that of the principal, our courts regularly have noted the importance of tailoring the jury charge to the facts of the case." Savage, supra, 172 N.J. at 389.
We are convinced, taking the jury charge as a whole, a properly instructed jury may have rejected the greater charge and convicted on the lesser charge. Accordingly, reversal is warranted here because the erroneous charge was capable of producing an unjust result. R. 2:10-2. Consequently, we vacate the judgment of conviction on the first-degree robbery count. Because we are reversing, we do not reach the claim that the sentence was excessive.
III.
Johnson alleges five reversible errors. He argues that the security video was inadmissible because it was not properly authenticated; the court erred in permitting the jury to view the video without supervision during deliberations; the prosecutor engaged in misconduct by "bolstering" the victim's later identification. He also argues that the prosecutor was overzealous in summation. Finally, Johnson argues that his sentence was excessive.
Remarkably, Johnson does not argue, as did Cooper, that the court erred in failing to charge the jury with the lesser included offenses of aggravated sexual contact and sexual contact. See supra, Point I. Johnson and Cooper were both tried for the same charges and the jury received the same instruction on those counts, which did not include the lesser included offenses of sexual contact. An "appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court." R. 2:10-2. Consequently, because we found the trial court's failure to charge the lesser included offenses of sexual contact while instructing the jury on sexual assault was plain error, this finding applies with equal force to Johnson's conviction. Accordingly, in the interest of justice, we are also constrained to reverse Johnson's conviction on counts six and seven and remand for a new trial on those counts. R. 2:10-2.
Despite the remand, we will address Johnson's contentions concerning the admission of the video into evidence and allowing the jury to watch it during deliberations. We will also discuss some of the allegations of prosecutorial misconduct and summation as guidance for the next trial. We have considered Johnson's other contentions and find them without sufficient merit for further discussion. R. 2:11-3(e)(2).
A.
Johnson first contends that the security video was not properly authenticated and was inadmissible as a result. We do not agree.
The New Jersey Rules of Evidence permit the admission of properly authenticated relevant evidence. N.J.R.E. 901. Authentication requires testimony establishing that the evidence accurately represents what it purports to be. Ibid. Videotaped evidence that is properly authenticated is admissible into evidence in New Jersey. Velazquez v. Jiminez, 336 N.J. Super. 10, 42 (App. Div. 2000), aff'd, 172 N.J. 240 (2002).
"Authentication of a video is much like that of a photograph, that is, testimony must establish that the videotape is an accurate reproduction of that which it purports to represent and the reproduction is of the scene at the time the incident took place." State v. Loftin, 287 N.J. Super. 76, 98 (App. Div.) (citing State v. Wilson, 135 N.J. 4, 15 (1994)), certif. denied, 144 N.J. 175 (1996). However, authentication of a video which purports to capture actual criminal activity taking place does not require the presence of a witness to confirm the accuracy of the recorded events. State v. Bunting, 187 N.J. Super. 506, 508-10 (App. Div.) (admitting surveillance video of a robbery without any witness testifying as to the accuracy of the details on the tape), certif. denied, 95 N.J. 181 (1983); see also State v. Tarlowe, 370 N.J. Super. 224, 235 (App. Div. 2004) (admitting time-lapse surveillance tape taken inside a supermarket).
Johnson argues that the video cannot be authenticated because Clisham had no direct knowledge of the incidents, but rather included those images which he thought involved the incident from all cameras in the area. Clisham testified that the hotel had a policy to prepare recordings of an event from start to finish. According to Clisham, he reviewed all the tape from nearby cameras and included any video containing images of the victims or any of the three people who participated in the assault. Additionally, Clisham testified he only lost camera sight of the assailants once during the video.
This case is strikingly similar to Loftin, where due to a murder at a hotel-casino, the head of security searched through numerous security tapes and made a compilation of recordings showing the murder suspect throughout the hotel. Loftin, supra, 287 N.J. Super. at 99. We found that the security head's testimony about the security system and his efforts compiling the video was sufficient to show "that the matter is what its proponent claims." Ibid. (citing N.J.R.E. 901). We are satisfied that Clisham's testimony established the authenticity of the subject video as being what it purported to be. Consequently, the court did not abuse its discretion in admitting it into evidence.
B.
Johnson's second contention is that the jury should not have been given unsupervised access to the surveillance videotape. Generally, trial court rulings on evidentiary matters are reviewed to determine whether the trial court abused its discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010). A court abuses its discretion when it makes a clear error of judgment. State v. Marrero, 148 N.J. 469, 483-84 (1997).
In the normal course, the jury may take exhibits received into evidence into the jury room. R. 1:8-8(a). However, exhibits involving videotaped testimony implicate additional concerns of potential prejudice. State v. A.R., 213 N.J. 542, 560 (2013); State v. Burr, 195 N.J. 119, 134 (2008). Such an exhibit is similar to having the witness testify a second time without cross-examination in the jury room. A.R., supra, 213 N.J. at 560. The Court is specifically concerned with the danger that the jury will emphasize the videotaped testimony over the testimony at trial, including cross-examination of the witness. Burr, supra, 195 N.J. at 134. Hence, where the jury requests a playback of recorded testimony, the trial judge must determine if any additional parts of the direct or cross-examination are required to place the testimony in context, and the jury is not permitted to have unsupervised access in the jury room. Id. at 133-34. Importantly, the video here is not a recording of testimony but a depiction of events as they were occurring.
We find no abuse of discretion in the trial court's decision to grant the jurors unsupervised access to the video. While courts have expressed concern about a jury having unsupervised access to testimonial recordings, the same sort of concerns are not present in the instant case, where the video simply documented the events of the evening without narration. Cf. A.R., supra, 213 N.J. at 552, 560. There is no need to give context to the video as the images simply speak for themselves. In our view, the recording at issue in this case is more analogous to a photograph, which does not raise concerns about unsupervised access, than the video-recorded testimony at issue in A.R. Thus, we do not find that the trial court abused its discretion.
Additionally, "errors that 'were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal . . . .'" A.R., supra, 213 N.J. at 561 (quoting State v. Corsaro, 107 N.J. 339, 345 (1987) (alterations in original)). Rather, in a case where a party invites the error, the question is whether the particular error "cut mortally into the substantive rights of the defendant . . . ." Id. at 562 (citations omitted) (alteration in original).
Here, although originally objecting to its admission, defense counsel used the video in his opening and summation to bolster the defense that Johnson was not participating very much in the events. Moreover, when the judge suggested giving unlimited access to the jury by allowing them to have the video, defense counsel stated, "I don't have any problem with [that]." And, during deliberations, when a television was supplied to the jury for them to view the video during their deliberations in the jury room, again defense counsel had no objection. Thus, we find that Johnson clearly invited the error. As he also strategically used the video to support his case, the invited error, allowing the video in the deliberation room with the jury, did not cut mortally into his rights. Id. at 562-63.
C.
Johnson next raises several contentions alleging prosecutorial misconduct. First, he asserts that the prosecutor improperly "bolstered" S.J.'s identification of the defendants by referring by name to two of her attackers before she identified them in court. Second, he argues that the prosecutor's summation was overzealous in directing the jury's attention to the impact on the victim, in describing the defense's focus on an uncharged co-conspirator a "red herring," and appealing to a sense of societal duty.
On the issue of "bolstering" the witness's credibility, it is well established that credibility is an issue of fact for the jury to determine. State v. Frisby, 174 N.J. 583, 594-95 (2002). The State should not provide witnesses to "bolster[]" the credibility of a witness. Id. at 595. Johnson's claim of error is without merit. The State did not produce a witness to claim that S.J.'s identification of the defendants was credible. Furthermore, there was no prejudice from the claimed error. In the present case, S.J. identified her assailants by the clothing they wore, and the arresting officer testified to the clothing that was worn by each of the defendants at the time of their arrest. Thus, no reversible error resulted from the prosecutor's statement in the case.
As to the summation, prosecutors must act under principles of fairness. State v. Echols 199 N.J. 344, 359 (2009) (quoting State v. Wakefield, 190 N.J. 397, 436 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)). Prosecutors have "considerable leeway in making opening statements and summations." Id. at 359-60 (quoting State v. Williams, 113 N.J. 393, 447 (1988) (internal quotations omitted)). Even so, they must refrain from inaccurately stating either facts or law, and limit comments both to facts proved at trial or reasonable inferences to be drawn from those facts. Id. at 360.
A finding of error is appropriate if a prosecutor fails to adhere to the above standards and the "conduct was 'so egregious as to deprive defendant of a fair trial.'" Ibid. (quoting Wakefield, supra, 190 N.J. at 437). In reviewing the challenged conduct, we must focus on whether trial counsel responded to the conduct, and the overall tenor of the trial. Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)); State v. Rodriguez, 365 N.J. Super. 38, 47 (App. Div. 2003) (requiring consideration of both the severity of the misconduct and its prejudicial effect on a defendant's right to a fair trial), certif. denied, 180 N.J. 150 (2004). Generally, failure to make a timely objection is fatal to a claim of error on appeal, as such failure "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Echols, supra, 199 N.J. at 360 (quoting Timmendequas, supra, 161 N.J. at 576).
Moreover, a prosecutor's improper remarks made during summation can be cured so long as the trial court "clearly instruct[s] the jury that the remarks made . . . were not evidence, but argument." State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013); see also State v. Loftin, 146 N.J. 295, 390 (1996). Such an instruction is sufficient to save a conviction from reversal even when the prosecutor makes a "clearly improper" statement. See State v. Setzer, 268 N.J. Super. 553, 566 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).
The challenged summation comments by the prosecutor did not require reversal of the conviction. Johnson's first claim of misconduct is that the prosecutor improperly drew the jury's attention to the crime's impact on the victim, citing Williams, supra. However, in Williams, the prosecutor had referred to the victim's attendance at church, her future plans to get married, and her community involvement. Williams, supra, 113 N.J. at 448. Similarly, in Rodriguez, the prosecutor continually described the victim as a mother, which was not even in evidence. Rodriguez, supra, 365 N.J. Super. at 48. Both these cases involved a calculated attempt by the prosecutor to generate sympathy for the victim based on the good character of the victim rather than focusing on the crime. The court reversed these convictions out of fear that the jury may have reached a verdict based on the virtuous character of the victim, rather than the culpability of the defendant. Williams, supra, 113 N.J. at 451-52.
In the present case, Johnson claims that the prosecutor improperly focused on the assertion that the victims were in fear as a result of the incidents. This statement does not impermissibly shift the jury's focus onto the good character of the victim. In fact, in the context of the summation, the prosecutor put this description to relevant use in commenting on the victim's demeanor on the stand. Unlike Rodriguez or Williams, where there was no relevance to the comments, in the present case, the prosecutor argued that the nature of the crime could cause the victim's misidentification of her assailants, her refusal to look at the defendants during her testimony, and her overall demeanor on the stand.
The last claim of prosecutorial misconduct by Johnson is that the prosecutor improperly invoked a sense of partisanship in the jury. Comments that a guilty verdict is the only way to do justice, the only way for the jury to do its job, or that the verdict should send a message cross the line beyond permissibly forceful advocacy. State v. Rose, 112 N.J. 454, 520-21 (1988); Rodriguez, supra, 365 N.J. Super. at 52; State v. Acker, 265 N.J. Super. 351, 356-57 (App. Div.), certif. denied, 134 N.J. 485 (1993). However, given the totality of the summation, and the evidence produced at trial, there was no substantial prejudice to defendant's due process rights. Moreover, any potential prejudice that resulted from the improper remarks was cured by the judge's instruction that summations are not evidence but argument. Smith, supra, 212 N.J. at 409.
In sum, we reverse the conviction of Cooper and Johnson for aggravated sexual assault and sexual assault counts six and seven and remand for a retrial on those counts. We also reverse the conviction of Peterson for armed robbery and remand for a trial on that count. We affirm as to all other counts.
Affirmed in part and reversed in part. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION