Opinion
DOCKET NO. A-0717-14T2
01-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUSTINA HAMPTON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-03-0424. Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury with her co-defendant, Parysh Wood, defendant Justina Hampton was found guilty of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count two); third- degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and third-degree hindering the apprehension of another, N.J.S.A. 2C:29-3(a)(7) (count six). The jury was hung as to two other counts of the indictment charging her with unlawful possession of a handgun and possession of a handgun for an unlawful purpose.
After merging count two into the armed robbery offense in count one, the court sentenced defendant to ten years in prison, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed concurrent three-year sentences for counts three and six.
The sole issue defendant raises on appeal is her claim that the trial court erred in extemporaneously providing an inaccurate added jury instruction on accomplice liability, following a sidebar request by the prosecutor. For the reasons that follow, we discern no prejudicial error stemming from the ad hoc jury instruction and affirm.
The State's proofs showed that the victims, a husband and wife, owned and operated a pizzeria in New Brunswick. Late in the evening of January 4, 2013, a woman called the pizzeria shortly before closing. She ordered two large pizzas to be delivered to an address in New Brunswick. The husband and wife decided to make this the last order of the evening, so they closed the shop after making the pizzas and drove to deliver them to the customer's address.
After arriving at the customer's apartment building, the husband called the customer and asked her to come outside. He then carried the thermal bag carrying the pizzas to the front of the apartment, leaving his wife in the car. He encountered a woman, later identified to be defendant, and she asked him to come inside the apartment. The husband walked inside, but defendant did not pay for the pizzas. According to his testimony, at that point defendant stood against a wall. A man wearing a mask, later identified as co-defendant Wood, appeared and pointed a gun at the husband.
The husband tried to escape, but he was unable to open the door. He fell down, and, according to his testimony, the man came up to his left side with the gun while defendant stood in front of him brandishing a knife. She held the knife against his stomach. The attackers demanded that he give them his money, his wallet, and his cell phone. The husband gave them money but said that his wallet and cell phone were in the car. At that point, the male attacker banged the gun on the husband's head and directed him to go upstairs. The husband complied, and then saw the male attacker try to stuff something into the pizza bag and run outside.
Meanwhile, according to the testimony of the wife, defendant came out to her car while her husband was in the building. Defendant started circling the car. Defendant then said to the wife that her husband was inside and "need[ed] some change," which made the wife suspicious. The wife then saw the masked man run out of the building with the pizza bag in his hand. At that point defendant started running away as well.
The husband emerged from the building and got back into the car with his wife. They called 9-1-1 to report the robbery. One of the police officers responding to the dispatch soon observed a Toyota in the vicinity with a black male and a black female whom the officer suspected might be the robbers. The car was driven by defendant. A police officer pursued the Toyota in his squad car as it continued through the local streets. As the squad car turned around to be next to the driver's side of the Toyota, the male passenger jumped out and fled toward a house.
The officer asked defendant who the male was, and she gave the officer a false name. The male then returned to the Toyota, grabbed defendant, and they attempted to run away together. More police officers arrived, and they apprehended the duo in a local driveway. Wood was found in possession of a knife. A pizza box and some of the items stolen from the victims were found in the Toyota, along with a mask.
The police conducted a show-up identification with the victims. Because English is not their primary language, the victims had some difficulty understanding the officers. The husband stated that Wood resembled his masked attacker but was not entirely sure. He also believed that defendant was not as heavy as the female robber. However, he did indicate at trial that a dark scarf worn by defendant resembled one worn by the female robber. Additionally, at trial, the husband recognized the knife taken by police from Wood as the one that had been wielded by the female assailant. The wife, meanwhile, was "[n]inety percent" sure that defendant was the female robber.
Defendant took the stand in her own defense at trial. She claimed that she had nothing to do with a robbery. She contended that she met Wood, her boyfriend, outside of her aunt's house in her car. She noted that he was acting nervously and smelled of marijuana. She explained that she had driven away from the police because of Wood's demeanor. He told her that he had an outstanding municipal court warrant for his arrest, and defendant stated that is why she lied to the police about his identity.
The trial judge provided the jurors with appropriate customary instructions explaining the elements of armed robbery and unlawful possession of a weapon, as well as hindering apprehension. However, as the judge was in the midst of orally delivering the portion of the charge on accomplice liability, a sidebar occurred. At that sidebar, the prosecutor expressed concerns that the court's accomplice charge had only addressed defendant's potential culpability with respect to the knife and had omitted the alternative possibility that defendant was liable as an accomplice with respect to the use of the handgun. The prosecutor's concern prompted the judge to give the following extemporaneous instruction:
There's a mistake in the charge . . . .Defendant did not object to this additional oral instruction. The written charge provided to the jurors did not contain it.
Right now, I just finished reading to you accomplice liability, right?
. . . .
Is she [defendant] guilty of armed robbery as an accomplice to Mr. Wood[][?] Mr. Wood[], [the] State alleges, had a gun, but under the theory of accomplice liability, she's just as guilty as he is of that charge, because even though she didn't actually possess the gun, he possessed it but she was his accomplice. So, [the] State is saying she could be found guilty of robbery though that, through complicity with him during possession of the weapon.
As we have already noted, the jury was unable to reach a verdict with respect to the counts alleging that defendant possessed the gun. However, the jury found her guilty of armed robbery, two possessory offenses concerning the knife, and hindering apprehension.
In her brief on appeal, defendant raises only the following point:
THE ROBBERY CONVICTION MUST BE REVERSED BECAUSE THE JURY WAS NOT PROPERLY INSTRUCTED THAT IT MUST FIND THAT DEFENDANT PURPOSELY FACILITATED THE ROBBERY TO BE GUILTY AS AN ACCOMPLICE TO THAT ROBBERY. (Not Raised Below).Essentially defendant contends that the judge's extemporaneous instruction after the sidebar improperly invited the jurors to convict her as an accomplice to an armed robbery without requiring them to find, as the law requires, that her own state of mind respecting the gun, distinct from that of Wood, was purposeful. She asserts that the flaw in this instruction comprises plain error and that she is thereby entitled to a new trial. We disagree.
In evaluating whether claimed defects in jury instructions rise to the level of reversible error, we must consider those alleged defects within the overall context of the charge as a whole. State v. Simon, 161 N.J. 416, 477 (1999). The alleged error must be "viewed in the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). If, upon reviewing the charge as a whole, the reviewing court finds that prejudicial error did not occur, then the jury's verdict must stand. State v. Coruzzi, 189 N.J. Super. 273, 312 (App. Div.), certif. denied, 94 N.J. 531 (1983).
With respect to principles of accomplice liability, we are cognizant that courts must provide jurors with accurate and understandable instructions regarding those accomplice concepts, even without a request by defense counsel. State v. Ingram, 196 N.J. 23, 38 (2008) (citing State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993)). We are equally mindful that "a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that [s]he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)). The court must also tailor the accomplice liability charge to the particular facts of the case. State v. Savage, 172 N.J. 374, 389 (2002).
Bearing in mind these principles, we discern no plain error in the on-the-spot oral instruction that the judge issued concerning accomplice liability relating to the gun. To be sure, that particular instruction did not mention that defendant's state of mind concerning the gun needed to be purposeful in order for her to liable as an accomplice to an armed robbery insofar as it was committed with a gun. However, that omission here was inconsequential.
The State had two alternative grounds to convict defendant of armed robbery: one based on the use of the gun and the other based on the use of the knife. Both the gun and the knife are weapons that can satisfy the threat-of-force element of armed robbery. N.J.S.A. 2C:15-11(a)(2) and (b). This is because the statutory definition of a deadly weapon explicitly includes firearms and, in these circumstances, defendant's actions demonstrated her intent to use the knife as a threatening weapon. See N.J.S.A. 2C:11-1(c) (defining a "deadly weapon"); see also State v. Brown, 325 N.J. Super. 447, 454 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). The jury found that defendant illegally possessed the knife during the robbery. In fact, there was no proof that Wood, the co-perpetrator, used or possessed the knife himself when accosting the male victim delivering the pizza. There is abundant evidence in the record to support defendant's conviction as an armed robber who held and used a knife to cause the victim to relinquish his money.
Since the jury did not find defendant guilty of either of the counts for illegal possession of the gun, it is unrealistic to believe that the judge's ad hoc gun-related instruction on accomplice liability somehow misled the jurors when they convicted her of armed robbery. The jurors obviously credited the evidence that defendant brandished the knife while Wood pointed the gun. The charge as a whole, despite this singular alleged flaw, clearly did not produce any manifest injustice.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION