Opinion
DOCKET NO. A-5449-12T2 DOCKET NO. A-5605-12T2
11-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARCUS CIRINO, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. SHUKRII K. MCINTYRE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Marcus Cirino (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Shukrii K. McIntyre (Dianne Glenn, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Gioiella A. Mayer, Assistant Prosecutor, and C. Christina Krauthamer, Assistant Prosecutor, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-01-0073. Joseph E. Krakora, Public Defender, attorney for appellant Marcus Cirino (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Shukrii K. McIntyre (Dianne Glenn, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey (Gioiella A. Mayer, Assistant Prosecutor, and C. Christina Krauthamer, Assistant Prosecutor, on the briefs). PER CURIAM
In these back-to-back appeals, which we now consolidate for purposes of this opinion, defendants Marcus Cirino and Shukrii K. McIntyre challenge their convictions following a joint jury trial involving robbery, aggravated assault, and weapons charges. We reverse.
I.
A Hudson County grand jury returned a nine-count indictment charging defendants with first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five). The indictment also charged Cirino with fourth-degree hindering his own apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count nine). Finally, the indictment charged McIntyre with fourth-degree hindering his own apprehension, N.J.S.A. 2C:29-3(b)(1) (count seven); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eight).
This indictment superseded an earlier indictment against defendants arising from the incident involved in this case. The earlier indictment was dismissed.
On or before October 11, 2012, defendants filed a severance motion seeking separate trials. They also each filed a motion to suppress a recorded oral statement McIntyre gave to the police following his arrest. In that statement, McIntyre asserted that he acted alone during the incident. Contrary to Rule 3:9-1(d), the trial court did not address these motions prior to trial.
On February 11, 2013, the trial judge dismissed counts one, six, seven, and nine of the indictment. The judge also dismissed counts four and five with respect to Cirino only. The trial began on February 12, 2013. On that date, the judge determined he would consider defendants' suppression motion the next day. When Cirino's attorney asked the judge about the status of defendants' severance motions, the judge replied that the motions had already been denied. However, the record does not reflect any prior decision on the motions and the judge's findings of fact and conclusions of law were not set forth in any of the transcripts.
On February 13, 2013, the judge conducted an evidentiary hearing and denied defendants' motion to suppress McIntyre's statement. During his subsequent testimony before the jury concerning the statement, a detective stated that McIntyre had inculpated Cirino in the offense. The judge denied defendants' motions for a mistrial and severance.
On February 14, 2013, the jury found defendants guilty of second-degree robbery (count two), and third-degree aggravated assault (count three). The jury found McIntyre guilty of second-degree unlawful possession of a firearm (count four); second-degree possession of a weapon for an unlawful purpose (count five); and fourth-degree obstruction (count eight).
On March 28, 2013, the judge merged count three into count two and sentenced Cirino to an extended fourteen-year prison term, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. On that same date, the judge merged count three into count two and also sentenced McIntyre to an extended fourteen-year term subject to NERA. The judge sentenced McIntyre to a concurrent five-year term on count five and a concurrent eighteen-month term on count eight. The judge also imposed appropriate fines and penalties upon both defendants. These appeals followed.
On appeal, Cirino raises the following contentions:
POINT IMcIntyre presents the following arguments:
ONCE THE JURY HEARD THAT JUST AFTER MCINTYRE EXCULPATED CIRINO, HE BROKE DOWN AND SAID "IT WAS ALL HIS IDEA. HE MADE ME DO IT," THE TRIAL COURT WAS REQUIRED TO DECLARE THE REQUESTED MISTRIAL AND GRANT THE RENEWED SEVERANCE MOTION.
POINT II
THE TRIAL COURT DENIED CIRINO A FAIR TRIAL AND DUE PROCESS OF LAW BY REFUSING TO ALLOW THE JURY TO CONSIDER THEFT AS AN ALTERNATIVE VERDICT TO ROBBERY.
POINT III
THE TRIAL COURT IMPROPERLY DOUBLE-COUNTED CIRINO'S PRIOR RECORD IN IMPOSING AN EXTENDED-TERM SENTENCE AND THEN USING IT AGAIN AS AN AGGRAVATING FACTOR, AND FAILED TO CONDUCT A MEANINGFUL ANALYSIS OF THE SENTENCING FACTORS.
POINT I
THE [TRIAL] COURT ERRED IN NOT GRANTING A SEVERANCE DURING THE PRE-TRIAL HEARINGS, OR ALTERNATIVELY, THE COURT ERRED IN NOT GRANTING A MISTRIAL AND A SEVERANCE DURING THE TRIAL WHEN THE WITNESS TESTIFIED THAT THE DEFENDANT STATED "IT WAS ALL HIS IDEA, HE MADE ME DO IT."
POINT II
THE COURT ABUSED ITS DISCRETION IN IMPOSING AN EXCESSIVE EXTENDED [FOURTEEN-]YEAR PRISON TERM WITH 85% PAROLE DISQUALIFIER WHEN AT ALL STAGES OF THE CRIMINAL PROCEEDING THE DEFENDANT AGREED TO PLEAD GUILTY IN EXCHANGE FOR A TEN YEAR PRISON TERM AND THE COURT ALSO AGREED TO SENTENCE THE DEFENDANT TO A
TEN[-]YEAR TERM BUT THE PLEA OFFERS WERE CONTINGENT AND THE CO-DEFENDANT WANTED TO GO TO TRIAL.
We agree with defendants that their motions for a mistrial should have been granted after the detective testified that McIntyre implicated Cirino in the offense. We therefore reverse defendants' convictions.
II.
The State developed the following proofs at trial. The victim, Harry Merentie, worked as a minibus driver. At approximately 2:00 p.m. on May 31, 2011, two men got on his bus. One of the men gave Merentie money for his fare and Merentie started to give him change. Merentie testified that the man then said, "'Yeah, this is him. This is -- get him -- get him --get him.'" Merentie told the men, "'Take everything you want[,]'" but neither man took anything from Merentie at that point.
Merentie testified the men then punched and kicked him. The bus was still in gear and continued to move down the street. One of the men steered the bus to the curb and Merentie got on the floor of the bus. Merentie said that one of the men took a bag that he kept on the floor and the two men then ran away. The bag contained one-hundred one dollar bills, a cell phone, and Merentie's personal papers.
On June 2, 2011, Merentie went to the police station to give a statement. Merentie told the police that Cirino had been on his bus "a few days or weeks in the past and that . . . Cirino had later confronted him that day about losing . . . a missing train ticket on the bus." Merentie "allowed . . . Cirino to look for his missing ticket that he left on the bus" but Cirino was unable to find it. Merentie testified that Cirino "became upset, but then he left the bus and had no further contact with [Merentie] that day."
Two private citizens, Arnaldo Borges and Keith McAlary, were on the street and observed the incident. They saw the two suspects run away from the bus and Merentie yelling for help. McAlary told his father-in-law, who was with him initially, to call the police, and Borges and McAlary then drove around the area until they saw a man, later identified as Cirino, walk out of a yard, open and close a gate, and then return to the yard. Borges and McAlary told Cirino they were police officers and asked him whether he was "involved in that carjacking" with the bus driver. Cirino responded, "'What are you talking about? You're crazy. I live here.'" Borges knew that Cirino did not live at that residence.
As Cirino started to walk away, Detective John Balance arrived and ordered Cirino to come to the police car with his hands up. Cirino complied. Detective Balance searched Cirino and found a pair of latex gloves and one hundred one dollar bills.
Officer Patrick Lynch reported to the scene to look for the second suspect. He went through some yards in the neighborhood until he saw a silver handgun lying near a fence. He then saw a man, later identified as McIntyre, hiding in some bushes. McIntyre struggled with Officer Lynch but, after two other officers arrived, McIntyre was subdued and arrested.
Detective Craig Largmann brought Merentie to the locations where Cirino and McIntyre were arrested. Merentie identified them as the two men who had beaten him and taken his bag. An ambulance then took Merentie to the hospital.
The police brought Cirino and McIntyre to the police station where they were kept in the same holding cell. After being advised of his Miranda rights, McIntyre gave a recorded statement to Detective Largmann. In that statement, McIntyre asserted that he grabbed Merentie by his shirt collar and "said, I don't want to hurt you[,] all I want is the money . . . ." McIntyre stated he then took Merentie's bag and ran away. McIntyre claimed he did not strike Merentie in any way and did not threaten him with a gun. McIntyre also told the police that he acted alone.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After the recorded statement was played to the jury, the prosecutor asked Detective Largmann, "is that the complete statement that . . . McIntyre gave to you that day?" The detective replied, "he then after the -- the statement was completed . . . McIntyre then began to cry and then made a statement that, 'It was all his idea. He made me do it.'" The judge denied defendants' motions for a mistrial. After a lunch break, the judge instructed the jury that "anything that may have been said" after the completion of the recorded statement "would be hearsay. And I'm going to ask that only that portion that you saw and read along with transcript that you consider."
Neither defendant testified at trial.
III.
Defendants claim that their rights under the Confrontation Clause were violated when Detective Largmann testified that McIntyre implicated Cirino in the offense. They also assert that the judge's belated curative instruction was ineffective in removing the prejudice they suffered when the State offered this testimony. Therefore, defendants contend the judge should have granted their motions for a mistrial. We agree.
The decision whether to grant a mistrial is "'peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.'" State v. Hogan, 2 97 N.J. Super. 7, 15 (App. Div. 1997) (quoting State v. Winter, 96 N.J. 640, 647 (1984 )), certif. denied, 149 N.J. 142 (1997). Therefore, we will not disturb a trial court's ruling on a motion for a mistrial unless there is an abuse of discretion. State v. Harvey, 151 N.J. 117, 205 (1997).
It is fundamental that, if a co-defendant does not testify at trial, those portions of the co-defendant's admissions that implicate a defendant are not admissible. United States v. Bruton, 391 U.S. 123, 132, 88 S. Ct. 1620, 1625-26, 20 L. Ed. 2d 476, 482-83; State v. Weaver, 219 N.J. 131, 153 (2014). There is an unacceptably high risk of prejudice to a defendant "where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." Bruton, supra, 391 U.S. at 135-36, 88 S. Ct. at 1628, 20 L. Ed. 2d at 485.
Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to
shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.Thus, if a co-defendant's incriminatory statement directly refers to the defendant, the statement is inadmissible under Bruton. Weaver, supra, 219 N.J. at 153-54 (citing Gray v. Maryland, 523 U.S. 185, 194, 118 S. Ct. 1151, 1156, 140 L. Ed. 2d 294, 302 (1998)).
[Id. at 136, 88 S. Ct. at 1628, 20 L. Ed. 2d at 485 (citing Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965)).]
Applying these principles, we conclude that the admission of McIntyre's statement implicating Cirino in the offense violated the Confrontation Clause. In his recorded statement to the police, McIntyre took full responsibility for the offense and stated that no one else was involved. However, the prosecutor then asked Detective Largmann, "is that the complete statement that . . . McIntyre gave to you that day?" The detective replied, "he then after the -- the statement was completed . . . McIntyre then began to cry and then made a statement that, 'It was all his idea. He made me do it.'"
The prejudice to Cirino from this statement was clear. McIntyre was now accusing Cirino not only of participating in the offense, but also of planning it. Because McIntyre was not planning to testify, Cirino could not cross-examine McIntyre concerning his claim.
In addressing defendants' motions for a mistrial, the judge stated that "it was never anticipated by . . . the State or me that a statement like that would come out. If, in fact, there was going to be an argument like that then, obviously, I probably would have severed [the defendants] in the very beginning." However, the record clearly indicates that the parties and the judge knew that Detective Largmann would likely testify that, after McIntyre's recorded statement ended, McIntyre went on to implicate Cirino and claim that Cirino planned the offense. Indeed, the detective had testified in a similar fashion during the suppression hearing held just prior to his trial testimony. At that time, the judge failed to instruct the State or the detective not to discuss McIntyre's additional statement at trial before the jury. As a result, the jury was informed that McIntyre told the police that Cirino was involved.
As previously noted, Rule 3:9-1(d) plainly requires that "[h]earings to resolve issues relating to the admissibility of statements by defendant . . . be held prior to the pretrial conference . . . ." That did not occur here. The judge also did not address defendants' severance motions on the record. The failure to properly address these issues prior to trial clearly contributed to the resulting Bruton error.
The prejudice caused by this testimony might have been able to be remedied had the judge provided the jury with a prompt, firm, and clear curative instruction. State v. Vallejo, 198 N.J. 122, 134 (2009). However, that did not occur. Instead, after a lunch break, the judge instructed the jury that "anything that may have been said" after the completion of the recorded statement "would be hearsay. And I'm going to ask that only that portion that you saw and read along with transcript that you consider."
In Vallejo, supra, the Court stated that it "has consistently stressed the importance of immediacy and specificity when trial judges provide curative instructions to alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial." Id. at 135. Here, the judge did not give the instruction immediately after the Bruton violation occurred and, instead, waited until after the jury had returned from lunch. The instruction was substantively erroneous because it advised the jury that McIntyre's statement was "hearsay" even though everything McIntyre said out of court to the police was hearsay; however, the statements of his own wrongdoing were admissible under N.J.R.E. 803(c)(25). The judge also did not specifically identify the portion of the statement the jury was to disregard.
Under these circumstances, we conclude that the curative instruction presented to the jury clearly failed to "pass muster" under the Vallejo test. Id. at 134. Because the curative instruction was inadequate, we are satisfied that the admission of McIntyre's statement in violation of Bruton, supra, may have led the jury to a verdict it may not have otherwise reached. Therefore, defendants' convictions must be reversed.
We recognize that a Bruton violation can be harmless if there is overwhelming evidence of guilt. See Schneble v. Florida, 404 U.S. 427, 430, 92 S. Ct. 1056, 1059, 31 L. Ed. 2d 340, 344 (1972)("The mere finding of a violation of the Bruton rule . . . does not automatically require reversal of the ensuing criminal conviction. In some cases, the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error."). While the proof of theft by Cirino was arguably overwhelming given his possession of the cash, we are not prepared to conclude that McIntyre's statement, which implicated Cirino in the robbery and assault, was harmless beyond a reasonable doubt.
IV.
Cirino next argues that the judge erred in denying defendants' request to instruct the jury on theft as a lesser-included offense of robbery. Citing State v. Lopez, 187 N.J. 91, 98 (2006), Cirino asserts that the assault was complete at the time McIntyre took Merentie's bag. Because "intimidating or assaultive conduct that is unrelated to a theft cannot elevate the theft to robbery[,]" Cirino contends the judge should have instructed the jury on theft. Ibid. We agree.
It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Id. at 287-88. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008).
In order to charge a lesser-included offense, the judge must first find that "'there is a rational basis for a verdict convicting the defendant of the included offense.'" State v. Cassady, 198 N.J. 165, 178 (2009) (quoting N.J.S.A. 2C:1-8(e)). The judge must consider whether the evidence at trial "'presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.'" Ibid. (quoting State v. Brent, 137 N.J. 107, 117 (1994)). A trial court should consider the evidence in the light most favorable to the defendant when making this determination. State v. Mauricio, 117 N.J. 402, 412 (1990).
Applying these principles, we conclude that the evidence supported an instruction on the lesser-included offense of theft. Merentie testified that he had a recent encounter with Cirino during which Cirino became upset when he could not find his bus ticket. Merentie also stated that, when the assault began, one of the men said, "Yeah, this is him. This is -- get him -- get him --get him." The men did not demand money from Merentie.
"[T]he intention to steal must precede or be coterminous with the use of force." Lopez, supra, 187 N.J. at 101. Based upon Merentie's testimony, a jury could conclude that defendants intended to assault him in connection with the past incident, rather than as an attempt to further a robbery and that, after the assault was complete, McIntyre took Merentie's bag as an "afterthought[.]" Id. at 101.
Thus, there was sufficient direct and circumstantial evidence in the record from which a properly charged jury could have found defendants guilty of theft rather than robbery and, therefore, the convictions must be reversed.
In light of our reversal of defendants' convictions, we need not address the arguments Cirino and McIntyre raise concerning their sentences. --------
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION