Opinion
DOCKET NO. A-2009-12T3
01-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY MASSENBURG, a/k/a RICHARD ANDERSON, FREDDRICK CONEY, ANTHONY LONEY, RONALD A. MASSENBURG, TONY MASSENBURG, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-09-2200. Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Anthony Massenburg was indicted for numerous crimes arising from a home invasion. Tried by a jury, defendant was convicted of attempted murder and two counts of aggravated sexual assault, among other lesser offenses, and sentenced to an aggregate term of imprisonment of sixty years. On appeal, defendant seeks to vacate his conviction, alleging various trial errors. He also appeals from the sentence imposed. Following our review, and in light of the record and applicable legal standards, we affirm the judgment of conviction. However, we vacate defendant's sentence and remand for resentencing for clear consideration of all relevant aggravating and mitigating factors.
I.
The trial record reveals the following facts. In January 2010, L.T. and his girlfriend N.L. were living together in an apartment building in Irvington, where L.T. was the superintendent. Defendant is L.T.'s uncle. Around 11:00 a.m. on January 21, 2010, L.T. went out and left N.L. in their basement apartment alone. S.P., N.L.'s friend whose boyfriend lived in the same building, stopped by to visit. The apartment's doorbell to the building's main entrance rang and N.L. answered. When the male voice on the other end stated he wanted to look at an apartment, N.L. buzzed him in and went to meet him at the main entrance. However, when she reached the entrance no one was there.
Upon returning to her apartment and unlocking the door, two masked men grabbed N.L., held her at gunpoint, and asked who else was inside. N.L. recognized the voice by its southern-accent to be defendant's, whom she knew. After admitting that S.P. was there, the men brought N.L. inside the apartment. The men took the women to separate rooms, bound their hands and feet with plastic zip-ties and covered their eyes and mouths with duct tape. N.L. heard one of the men say "the only [thing] been saving him this long is his uncle," whom she believed referred to defendant. The intruders questioned N.L., saying, "where is the stuff . . . you know . . . why we're here."
Defendant took N.L. into the bedroom and told her: "[I]f you was with me you wouldn't be going through this." N.L. believed defendant was alluding to advances he had made towards her the prior December, when he was staying with L.T. The intruders repeatedly made N.L. text and call L.T. in order to lure him home. Frustrated with N.L.'s denials about knowing L.T.'s whereabouts, the men threatened S.P., one going so far as to wrap a plastic bag around her neck and tightening it so that S.P. could not breathe. Although bound and blindfolded, the women could hear the intruders ransacking the apartment throughout their four-hour captivity.
At one point, N.L. asked to use the bathroom, and defendant accompanied her. While she was sitting on the toilet, defendant forced her at gunpoint to perform fellatio on him. S.P. was also taken to the bathroom, by a man in jogging pants, and forced to perform fellatio at gunpoint. Around 4:00 p.m., the men became angry with N.L. and asked if she had ever seen anyone drown. After one began running the bathtub water, the men carried N.L. towards the bathroom. It was at this juncture L.T. returned.
When L.T. entered, someone grabbed him and yelled: "Now what's up mother f----r." Hearing his uncle's voice, L.T. initially thought it was a prank, until he saw three masked men, one of whom had a gun. L.T. struggled with the intruders, saying, "don't kill me, I have a daughter," and was hit with a hammer and a gun. During the struggle, L.T. was able to pull the mask off defendant's face, then slipped out of his jacket and escaped through the front door. He ran from the building calling for help and was found by a nearby building's superintendent. When police arrived, L.T. was taken to the hospital, and later gave a formal statement identifying defendant as one of the intruders. Ten minutes after L.T. escaped, N.L. and S.P. were able to remove their bindings and similarly fled from the apartment.
Defendant was subsequently arrested and charged with: first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3 (count one); second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b) (count two); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count four); second-degree possession of a weapon without a carry permit, N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six, ten and nineteen); second-degree conspiracy to commit aggravated sexual assault, N.J.S.A. 2C:5-2 and 2C:14-2(a)(4) (count seven); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (counts eight and thirteen); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (count nine); third-degree making terroristic threats, N.J.S.A. 2C:12-3(b) (count eleven); third-degree criminal restraint, N.J.S.A. 2C:13-2 (counts twelve and fourteen); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and 2C:18-2(a)(1) (count fifteen); second-degree burglary, N.J.S.A. 2C:18-2(b)(1) (count sixteen); fourth-degree possession of a weapon for an inappropriate purpose, N.J.S.A. 2C:39-5(d) (count seventeen); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eighteen).
The jury found defendant guilty of all but the first, second, ninth and fifteenth counts. Defendant moved for a new trial, which the court denied. After appropriate mergers, defendant was sentenced to imprisonment for an aggregate term of sixty years, consisting of three consecutive twenty-year sentences with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the attempted murder and for each of the aggravated sexual assault charges. This appeal ensued.
II.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE COURT, SUA SPONTE, SHOULD HAVE STRICKEN THE TESTIMONY ABOUT A PRE-INCIDENT RAPE ALLEGEDLY COMMITTED BY THE DEFENDANT ON ONE OF THE FEMALE VICTIMS OR, AT MINIMUM, GIVEN A LIMITING INSTRUCTION. (Not Raised Below).
POINT II
THE COURT SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNT 13, FIRST-DEGREE AGGRAVATED SEXUAL ASSAULT, BECAUSE THE VICTIM WAS UNABLE TO IDENTIFY HER ASSAILANT THUS, THERE WAS INSUFFICIENT
EVIDENCE TO CONVICT ANYONE AS EITHER THE PRINCIPLE OR ACCOMPLICE.
POINT III
THE VERDICT ON THE COUNT 13, AGGRAVATED SEXUAL ASSAULT, WAS PATCHWORK AND SHOULD BE REVERSED BASED ON LACK OF UNANIMITY. (Partially Raised Below).
POINT IV
THIS CASE SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO PURSUE AN ALIBI DEFENSE. (Partially Raised Below).
POINT V
THE CASE MUST BE REMANDED FOR RESENTENCING BECAUSE THE COURT FAILED TO CONSIDER ANY OF THE STATUTORY SENTENCING FACTORS.
Defendant first argues that the trial court's failure to intercede or issue a curative instruction with regard to inadmissible and highly prejudicial evidence of an alleged prior rape by defendant elicited solely by defense counsel violated his right to a fair trial. He also contends that the invited-error doctrine has no applicability under these circumstances.
These arguments were not raised before the trial court. We therefore consider them under the plain error standard, that is, whether the evidence was erroneously admitted and, if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Galicia, 210 N.J. 364, 386 (2012).
During cross-examination of L.T., defense counsel returned to L.T.'s direct testimony that his relationship with defendant was "up and down." In response to questions, L.T. acknowledged in late 2010, defendant stayed in the apartment he shared with N.L. Thereafter, the following exchange took place with defense counsel:
Q. Okay. And at that time [December 31, 2010, when defendant went back to North Carolina] you guys were still sugar and cake?
A. Not at that time.
Q. It wasn't at that time?
A. No, we [were] on very bad terms at that time.
Q. Oh, what happened then?
A. During [] December while he was staying here I actually walked in and caught him raping my girlfriend.
Q. Raping your girlfriend?
A. Raping my girlfriend. And that put us on very bad terms. When I say very bad terms, that put us on very bad terms.
Q. That's what your girlfriend said it was rape?
A.Q Yes.
Q. So, if she gave a statement saying that they were partying and you left, and she got drunk and con[sensually] had some sex with Mr. - -
A. No.
Q. - - that - I haven't finished with my question - you would - - you would dispute what she has said in her statement that it was consen[s]ual. You['re] saying it wasn't consen[s]ual.
. . . .
Q. Is that what your testimony is?
A. What . . . I'm saying is I'm answering you[r] [] question in December me and [defendant] was on very bad terms. I walked in and I caught him actually raping my girlfriend.
Defense counsel elicited this testimony and then attempted to impeach L.T. by asking him why he never mentioned the alleged rape to the grand jury during his testimony in 2010. On redirect, the prosecutor did not ask L.T. about the alleged rape of his girlfriend, but on re-cross, defense counsel again broached the subject. Moreover, defense counsel later raised the alleged rape during cross examination of N.L. and used the rape testimony to impugn L.T.'s credibility in summation.
The doctrine of invited error bars defendant from challenging on appeal testimony that defense counsel elicited as part of the defense strategy. See State v. A.R., 213 N.J. 542, 561 (2013). Trial errors that "'were induced, encouraged[,] or acquiesced in or consented to by defense counsel ordinarily are not the basis for reversal on appeal.'" Ibid. (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)).
The evidence of defendant's alleged rape of N.L. was repeatedly elicited by the defense to explain the motive for L.T. fabricating his testimony. The State did not mention the rape at any point in the trial, including during L.T.'s redirect. Cf. State v. Doss, 310 N.J. Super. 450, 461 (App. Div. 1998).
The questioning of L.T. regarding defendant's purported rape of N.L. furthered the defense strategy, as demonstrated by a portion of defense counsel's summation:
When people do things they do it for a reason, you always have a reason for why you do something. The Prosecutor opened up to you about vengeance. What [L.T.] told you in his statement, in his Grand Jury testimony when asked why would . . . your uncle do this? Well we had an argument months before Thanksgiving time. I thought it was all resolved so much so that he lived with me for a while and then December 31st he went home.
I asked him so when you[r] uncle went home on December 31st, nobody was mad at him? No, I ca[ught] him attempting to rape [N.L.], nothing to do with this case.
Just for the record, there are attempted rapes and attempted rape is something that I think of if a women getting her clothes ripped off and understandably then there's other rapes of someone just
coming on a little too strong, the woman says "No, stop." It's a terrible thing but what kind of rape was this? [L.T.] walked in, [there] was no fight that you would expect a real kind of bad rape we're talking about here, no fighting. I don't want you living here anymore. It's understandable, you put the hit on my girl trying to have sex with my girl, you're out of here, boom.
Given defendant's affirmative use of the challenged testimony to show a motive for L.T. to fabricate his testimony, he cannot now be heard to complain about its introduction into the case. A.R., supra, 213 N.J. at 561; see also State v. Harper, 128 N.J. Super. 270, 277 (App. Div.) (noting reversal not warranted "where the after-criticized judicial action was reasonably thought to secure a trial or tactical advantage for the defendant"), certif. denied, 65 N.J. 574 (1974).
Defendant next argues that the trial court committed reversible error by denying his motion for a judgment of acquittal on the aggravated sexual assault charge because of insufficient evidence of the identity of the assailant. We disagree.
In reviewing the denial of a Rule 3:18-1 motion for judgment of acquittal, we apply the same standard as the trial court. State v. Pickett, 241 N.J. Super. 259, 264 (App. Div. 1990). "We must determine whether, based on the entirety of the evidence and after giving the State the benefit of all its favorable testimony and all of the favorable inferences drawn from that testimony, a reasonable jury could find guilt beyond a reasonable doubt." State v. Dekowski, 218 N.J. 596, 608 (2014) (quoting State v. Williams, 218 N.J. 576, 594 (2014)). But see State v. Trotman, 366 N.J. Super. 226, 235 (App. Div. 2004) ("[T]he veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." (citation and internal quotation marks omitted)).
Defendant argues that since S.P. did not identify her attacker, the State failed to make out a prima facie case of aggravated sexual assault under N.J.S.A. 2C:14-2(a)(4) and the court should have granted his motion for judgment of acquittal. He contends that neither accomplice nor conspiracy liability was a sufficient basis from which the State could prove identity for this offense. According to defendant, the sexual assault of S.P. by one of the assailants that day was a spontaneous, opportunistic act, which is why the jury acquitted defendant of the conspiracy counts with respect to aggravated sexual assault.
We reject as meritless defendant's argument that his conviction of the sexual assault of S.P. should be reversed because it is inconsistent with his acquittal on the conspiracy to commit sexual assault counts. The verdicts on these charges are not inconsistent since conspiracy and accomplice liability are separate and distinct offenses. Compare N.J.S.A. 2C:5-2, with N.J.S.A. 2C:2-6. Assuming arguendo there was some inconsistency, the law permits inconsistent verdicts in criminal matters to stand, see State v. Grey, 147 N.J. 4, 11-12 (1996); such verdicts are sustainable "so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted." State v. Banko, 182 N.J. 44, 46 (2004).
Here, the State alleged defendant acted as an accomplice in the commission of the sexual assault of S.P. "A person is legally accountable for the conduct of another person when . . . [h]e is an accomplice of such other person in the commission of [the] offense." N.J.S.A. 2C:2-6(b)(3). To be considered an accomplice, an individual must have the "purpose of promoting or facilitating the commission of the offense" and must solicit, aid, agree to aid, or attempt to aid another person in planning or committing the crime. N.J.S.A. 2C:2-6(c)(1). The principal does not need to be prosecuted or convicted of the crime in order for an accomplice to be convicted; however, the State must prove beyond a reasonable doubt that the crime actually occurred. See State v. Lassiter, 348 N.J. Super. 152, 162-63 (App. Div. 2002).
Merely because the victim could not identify the masked assailant who forced her to perform the sexual act at gunpoint does not mean that the State failed to prove:
1. That [an unknown person] committed the crime of [aggravated sexual assault;]The assailant's identity is not an essential element with regard to the accomplice charge against defendant. See N.J.S.A. 2C:2-6.
2. That [] defendant's purpose was to promote or facilitate the commission of the offense[;]
3. That [] defendant solicited [him] to commit [it] and/or did aid or agree or attempt to aid [him] in planning or committing [it; and]
4. That [] 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), § 2C:2-6, "Liability for Another's Conduct" (1995).]
In his written decision denying defendant's motion, the trial judge found sufficient evidence from which a reasonable jury could find defendant guilty of the aggravated sexual assault of S.P. under the State's accomplice liability theory. The judge determined:
[L]ooking at the totality of the circumstances, a reasonable jury could have found that the defendant aided or agreed to attempt to aid the accomplice in committing
the aggravated sexual assault. First, defendant [] was convicted himself of the same exact type of aggravated sexual assault on the victim, [N.L.] It would be reasonable for the jury to find that the defendant and the accomplice agreed to aid one another to commit this type of crime upon their respective victims. Furthermore, a reasonable jury could have found that defendant [] aided the accomplice in the sexual assault by being armed and restraining both victims.Viewing the testimony in the light most favorable to the State and giving the State the benefit of all the reasonable and favorable inferences drawn therefrom, there was sufficient evidence for the jury to find that defendant facilitated the aggravated sexual assault committed by his principal, and shared the same purpose or intent in so doing. Therefore, we conclude defendant's motion for a judgment of acquittal was properly denied.
Moreover, a reasonable jury could have found that the defendant's purpose was to promote or facilitate the accomplice in committing the aggravated sexual assault and that the defendant had the same criminal state of mind as the accomplice. Again, the defendant was convicted of the same type of sexual assault on [N.L.] The jury could have found that he had the same state of mind a[s] the accomplice based on this fact. Furthermore, the jury could have found that the defendant had the purpose to promote o[r] facilitate the offense because he entered the house armed with the accomplice, restrained the victims and held them against their will for hours.
The argument presented in support of Point III in which defendant submits, in effect, because the verdict sheet did not require the jurors to indicate whether they found defendant guilty as an accomplice to another or as the principal in the sexual assault of S.P., the jurors may have found guilt on different theories, is without legal foundation. In State v. Frisby, 174 N.J. 583 (2002), the Court noted, "it has been held that a jury does not have to agree unanimously on whether a defendant has acted as a principal or an accomplice." Id. at 596 (citing United States v. Peterson, 768 F.2d 64 (2d Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 264 (1985)).
We turn now to defendant's claim of ineffective assistance of counsel. Defendant argues that his trial attorney performed deficiently because he neglected to pursue an alibi defense. During jury deliberations, defendant stated to the trial judge that his counsel failed to pursue an alibi defense. The record does not disclose any efforts undertaken by counsel in that regard. Defense counsel in response to defendant's assertion stated, "[t]here's no alibi defense here." After the trial, defendant presented undated, unsworn "certifications" from his parents and a friend that he was in North Carolina on the date of the incident.
Claims of ineffective assistance of counsel are typically not reviewed on direct appeal. See State v. McDonald, 211 N.J. 4, 30 (2012); see also State v. Hess, 207 N.J. 123, 145 (2011) ("[W]e routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims involve allegations and evidence that lie outside the trial record." (internal quotation marks omitted)); State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.").
Only when the ineffective assistance claim can be determined on the trial record alone is it appropriate to dispose of the issue on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006). This is not such a case. Defendant's claim of ineffective assistance of counsel is therefore not ripe for review on direct appeal.
Finally, defendant argues the sentencing judge failed to consider and articulate any findings of aggravating and mitigating factors. We agree the sentencing judge did not set forth on the record a finding of particular aggravating or mitigating factors affecting defendant's sentence.
At the time of sentencing, the court must "state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence." R. 3:21-4(g); see also N.J.S.A. 2C:43-2(e) (requiring sentencing court to provide statement on the record of "factual basis supporting its findings of particular aggravating or mitigating factors affecting sentence"). A clear explanation "of the balancing of aggravating and mitigating factors with regard to imposition of sentences and periods of parole ineligibility is particularly important." State v. Pillot, 115 N.J. 558, 565-66 (1989). That explanation should thoroughly address the factors at issue. As the Court has noted, "[a]lthough our case law does not require that trial courts explicitly reject every mitigating factor argued to the court," such a practice is encouraged, as it "not only ensures consideration of every factor but also demonstrates to defendants and the public that all arguments have been evaluated fairly." State v. Bieniek, 200 N.J. 601, 609 (2010).
A careful statement of reasons also facilitates appellate review. The trial court's explanation of its reasoning "is important for meaningful appellate review of any criminal sentence challenged for excessiveness," because the appellate court "is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" Id. at 608 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). A clear and detailed statement of reasons is thus a crucial component of the process conducted by the sentencing court and a prerequisite to effective appellate review.
We therefore remand for resentencing. On remand, the sentencing court shall explain its findings with respect to the aggravating factors and mitigating factors, and its balancing of those factors as required by State v. Fuentes, 217 N.J. 57 (2014). At the new sentencing hearing, the court should give full consideration to all relevant evidence and all relevant sentencing factors as of the day defendant stands before the court. State v. Randolph, 210 N.J. 330, 354 (2012). "As such, the sentencing court may consider defendant's conduct and comportment while imprisoned, whether positive or negative." State v. Case, ___ N.J. ___, ___ (2014) (slip op. at 34). Defendant is entitled to bring to the court's attention any rehabilitative or other constructive measures he has taken in the intervening years. The State, likewise, is not limited in its presentation. The only restriction placed on both parties is that the evidence presented be competent and relevant. We do not retain jurisdiction.
Affirmed in part and remanded in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION