"Fleeting comments, even if improper, may not warrant a new trial, particularly when the verdict is fair."
How later courts described this case
- "Fleeting comments, even if improper, may not warrant a new trial, particularly when the verdict is fair."
- recognizing an adequate curative instruction is "firm, clear, and accomplished without delay"
- "The failure to make a timely objection not only indicates the defense did not believe the remarks were prejudicial at the time they were made, but also deprives the judge of the opportunity to take the appropriate curative action."
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0460-16T4
A-2535-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SPENCER S. YOUNG and
JAHMIR K. BOUIE, a/k/a
JAH,
Defendant-Appellant.
Submitted January 14, 2019 – Decided March 12, 2019
Before Judges Fasciale, Gooden Brown and Rose.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 14-03-
0459.
Joseph E. Krakora, Public Defender, attorney for
appellants (Stephen W. Kirsch, Assistant Deputy Public
Defender, of counsel and on the brief in A-0460-16;
Lauren S. Michaels, Assistant Deputy Public Defender,
of counsel and on the brief in A-2535-16).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Carey J. Huff,
Assistant Prosecutor, of counsel and on the brief in A-
0460-16; Ian D. Brater, Assistant Prosecutor, of
counsel and on the brief in A-2535-16).
PER CURIAM
These two appeals, calendared back-to-back and consolidated for
purposes of our opinion, arise out of a single indictment charging defendants
Jahmir K. Bouie and Spencer S. Young with second-degree robbery, N.J.S.A.
2C:15-1 (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count
two); and first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or
(2) (count three). The charges ensued from the beating death of Tommy Sudano,
following an apparent drug deal around midnight on July 26, 2013, in Asbury
Park.
The State tried defendants separately. A jury convicted Bouie of all three
counts as charged. After ordering appropriate mergers, the trial court sentenced
Bouie on the murder conviction, to a fifty-five-year prison term, with an eighty-
five percent period of parole ineligibility pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Thereafter, a jury convicted Young of counts one
and two, found him not guilty of count three, but convicted him of the lesser -
included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-
A-0460-16T4
2
4(a)(1). The court ultimately sentenced Young to a prison term of fifty years,
subject to NERA.1
We affirm the convictions and sentence as to Young. We also affirm the
convictions as to Bouie, but we remand for reconsideration of his sentence. We
first address Bouie's contentions, and then those raised by Young.
I.
On appeal, Bouie raises the following points for our consideration:
POINT I
REVERSAL IS REQUIRED BECAUSE THE COURT
REFUSED TO GRANT A MISTRIAL AFTER THE
ONLY EYEWITNESS TOLD THE JURY THAT THE
VICTIM'S FAMILY DESERVES JUSTICE AND
THEREFORE THEY SHOULD CONVICT [BOUIE].
POINT II
THE FAILURE TO PROVIDE ANY LIMITING
INSTRUCTION ABOUT EVIDENCE THAT [BOUIE]
SOLD DRUGS DENIED HIM DUE PROCESS AND
A FAIR TRIAL.
(Not raised below)
1
The court initially sentenced Young to a thirty-year term of parole ineligibility,
but later amended the judgment of conviction (JOC) to properly reflect the
mandatory eighty-five percent parole ineligibility term under NERA.
A-0460-16T4
3
POINT III
THE FAILURE TO CHARGE THE JURY ON THIRD-
PARTY GUILT DENIED BOUIE DUE PROCESS
AND A FAIR TRIAL.
(Not raised below)
POINT IV
THE CUMULATIVE EFFECT OF THE
AFOREMENTIONED ERRORS DENIED [BOUIE
OF] A FAIR TRIAL.
(Not raised below)
POINT V
THE MATTER SHOULD BE REMANDED FOR
RESENTENCING.
A. Bouie's sentence was imposed without proper
consideration of his youth and attendant circumstances,
despite the fact that he was a juvenile at the time of the
crime. This violated the Eighth Amendment and
Article One, Paragraph Twelve, and rendered his
sentence illegal, requiring resentencing under State v.
Zuber[, 227 N.J 422, cert. denied, ___ U.S. ___, 138 S.
Ct. 152 (2017)].
B. The judge erred in finding and weighing aggravating
and mitigating factors, and in failing to provide an
adequate basis for his decision.
C. The [fifty-five]-year NERA sentence is manifestly
excessive and unduly punitive.
A-0460-16T4
4
A.
We begin by addressing Bouie's contention that the trial court erroneously
denied his motion for a mistrial because a comment by the State's sole
eyewitness was "wholly improper and exceedingly prejudicial." We disagree.
The remark in question was elicited during J.B.'s2 testimony. At the time
of the incident, J.B. was sitting on the porch of his apartment building when he
saw Bouie and Young exit the building after what J.B. believed was "maybe a
drug sale." Defendants then attacked Sudano from behind, striking him in the
head and shoulders. When Sudano fell to the ground, Bouie and Young
"continu[ed] to hit him . . . punch him and kick him . . . all over" his body.
Defendants left the scene, but returned shortly thereafter, and "search[ed]
[Sudano's] pockets[, . . . ] going through his pants . . . looking for stuff."
After responding to defense counsel's inquiry regarding J.B.'s
identification of Bouie, J.B. asked whether he were permitted to "say
something." Although the court would not allow J.B. to comment at that point,
the court permitted him to respond to the prosecutor's question on redirect
examination, as follows:
[PROSECUTOR:] You wanted to say something
concerning [Bouie's] mustache, correct?
2
We use initials to protect the privacy of the witness.
A-0460-16T4
5
[J.B.:] It wasn't even concerning the mustache. Well,
it was that, but I just wanted to say to the jury, you
know, this happened three years ago. Some things I
may remember to the T, other things not so much, but I
know for a fact that was the guy. The family deserves
justice.
[(Emphasis added).]
The prosecutor immediately refocused J.B. on the certainty of his identification
of Bouie, and concluded her examination. J.B. made no other comments
pertaining to justice for the victim's family.3
Minutes later, at the conclusion of J.B.'s testimony, Bouie moved for a
mistrial. The trial court denied the motion, then excused the jury for lunch.
Following the lunch break, the prosecutor requested that the court issue a
3
In a footnote of his merits brief, Bouie claims, for the first time on appeal that
"[a]dding to the prejudice, the prosecutor echoed [J.B.]'s outburst" during
summation with several comments pertaining to fairness. In particular, the
prosecutor summarized the evidence, then asked rhetorically, after each
summary, "Was that fair?" Bouie does not, however, argue how those comments
are prejudicial. Nor do any of the comments pertain to justice for the victim's
family. Moreover, Bouie did not object to the comments during or immediately
following the prosecutor's remarks. We find no plain error here. See State v.
Timmendequas, 161 N.J. 515, 576 (1999) (recognizing that when a defendant
does not object to the prosecutor's summation, the remarks generally "will not
be deemed prejudicial"); see also State v. Murray, 338 N.J. Super. 80, 87-88
(App. Div. 2001) ("The failure to make a timely objection not only indicates the
defense did not believe the remarks were prejudicial at the time they were made,
but also deprives the judge of the opportunity to take the appropriate curative
action.").
A-0460-16T4
6
limiting instruction, "in an abundance of caution[,]" indicating the jury should
disregard J.B.'s remark because it was improper opinion testimony. The trial
court granted the State's application, reasoning:
[J.B.] added something which he was not asked, and
that remark should be stricken from the record. The
jury will be instructed to disregard that remark. [The
court] will simply say that [J.B.] ventured his opinion
about his view of the cause of justice, which he is not
entitled to do, and the jury will disregard it. And I [the
court] will give that instruction.
So there [i]s no mistake, what [the court] will tell
the jury is [t]hat witnesses -- unless they [a]re qualified
as experts, cannot express their opinions. They can
only testify as to their personal observations of events
which they then relate to the jury.
Bouie did not object to the court's proposed curative instruction. When
the jurors returned from lunch, the court gave the following instruction, in
pertinent part:
Later on in the case we anticipate you [wi]ll be hearing
from some expert witnesses. I will be giving you a legal
instruction about how you judge the credibility of
expert witnesses. Expert witnesses are permitted to
express their opinion about things to assist you in
finding the facts.
Lay witnesses generally . . . are not permitted to
express their opinions about anything. They are
permitted to testify as to what they observed, what they
recall seeing, and what they recall happening. They
[a]re not permitted to express their opinion.
A-0460-16T4
7
You may recall earlier today that there was at one
point where [J.B.] was being questioned about [Bouie's]
mustache but in the course of being asked the question,
he volunteered his opinion about the merits of a cause.
He [i]s not permitted to express his opinion about
anything, let alone what he did express his opinion
about. So that testimony has been stricken from the
record, and you are to disregard it entirely.
....
The best example I can give is, if a witness gets
up and testifies about pink elephants, and I determine
for legal reasons that that testimony should not be part
of your considerations, I instruct you, as I have
instructed you already, to disregard that testimony
about pink elephants[. H]uman nature being what it is,
as soon as I mention the word "pink elephants" in your
head pops a vision of a pink elephant, and that [i]s just
human nature.
But I [a]m instructing you and you have to follow
this instruction that that comment that was ventured as
his opinion is not part of the case. You may not rely
upon it, and you must disregard it entirely in
determining the facts of this case when you get to that
point in the trial.
Bouie did not object to that instruction. He now argues the instruction not
only was insufficient "to cure the prejudice[,]" but also it was "so delayed and
so vague that its impact, if any, was minimal." As further support, he relies on
our recent decision in State v. Herbert, ___ N.J. Super. ___ (App. Div. 2019)
A-0460-16T4
8
(slip op. at 1), decided after briefing in the present matter. 4 Bouie's argument is
unavailing.
In Herbert, we reversed the defendant's convictions for murder and
weapons offenses where the lead detective, in violation of a prior court ruling,
referenced the defendant's alleged gang membership and the presence of gangs
in the area of the homicide. Id. at 2. Importantly, we determined the references
to gang membership impermissibly suggested to the jury that the defendant was
"a bad person with the propensity to commit crimes." Id. at 24.
We further observed, "Each time the detective referred to gangs, the trial
came to an abrupt halt. The second time, when the detective called the defendant
a gang member, the jury gasped, according to defense counsel at sidebar." Id.
at 23. Under those particular circumstances, and because the curative instruction
was otherwise inaccurate, we concluded the instruction was insufficient to
alleviate the prejudice caused by the detective's remarks. Id. at 25-27.
Conversely, here, J.B.'s remark, while an improper opinion, was fleeting
and did not suggest Bouie committed prior bad acts. See Jackowitz v. Lang, 408
N.J. Super. 495, 505 (App. Div. 2009) ("Fleeting comments, even if improper,
may not warrant a new trial, particularly when the verdict is fair."). J.B. did not
4
See R. 2:6-11(d). The State did not file a responding submission.
A-0460-16T4
9
violate a prior court ruling, nor is there any evidence in the record that the jury
reacted in any way to the remark.
Further, our decision in Herbert did not overrule well-established
principles enunciated by our Supreme Court, i.e., when inadmissible testimony
is inadvertently admitted in evidence at trial, the decision to give a curative
instruction or grant the "more severe response of 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. Winter, 96 N.J. 640, 646-47 (1984). We review the denial of
a mistrial for an abuse of discretion and uphold the trial court's decision unless
manifest injustice would result. State v. LaBrutto, 114 N.J. 187, 207 (1989).
Similarly, "when weighing the effectiveness of curative instructions," we
"should give equal deference to the determination of the trial court" and reverse
only when the possibility of an unjust verdict was "sufficient to raise a
reasonable doubt as to whether the error led the jury to a result it otherwise might
not have reached." Winter, 96 N.J. at 647. In fact, "[e]ven in the context of a
constitutional error, a curative instruction will not be deemed inadequate unless
there is a real possibility that the error led the jury to a result it otherwise might
A-0460-16T4
10
not have reached." State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div. 1997)
(citing Winter, 96 N.J. at 647).
Reviewing the curative instruction, here, we are satisfied it was sufficient
to cure any possible prejudice to Bouie. See State v. Vallejo, 198 N.J. 122, 134
(2009) (recognizing an adequate curative instruction is "firm, clear, and
accomplished without delay"). Without repeating the improper remark, the trial
court clearly referenced J.B.'s comment that "he volunteered his opinion about
the merits of a cause." In doing so, the judge minimized the impact of the
reference, but firmly instructed the jurors to disregard the improper opinion
testimony in their deliberations. See N.J.R.E. 701. Further, the instruction was
given right after the jurors returned from lunch and before the State called its
next witness. Under these circumstances, we find the court properly denied
Bouie's motion for a mistrial and gave an effective curative instruction instead.
State v. Allah, 170 N.J. 269, 281 (2002) (a mistrial is not appropriate if there is
"an appropriate alternative course of action").
B.
Bouie next asserts a new trial is mandated because the culmination of two
trial errors denied him a fair trial. State v. Rivera, 437 N.J. Super. 434, 444
(App. Div. 2014). We find these arguments lack merit. R. 2:11-3(e)(2). We add
A-0460-16T4
11
the following brief comments on the two challenges raised, noting Bouie 's
failure to challenge the court's instructions to the jury at trial constitutes a waiver
to object to those instructions on appeal. R. 1:7-2; see State v. Torres, 183 N.J.
554, 564 (2005). Accordingly, we will reverse on the basis of unchallenged jury
instruction error only if the error was "clearly capable of producing an unjust
result." R. 2:10-2; State v. Ross, 229 N.J. 389, 407-08 (2017).
1.
Bouie claims he was deprived of a fair trial and his due process rights
were violated because the trial record is replete with references to his uncharged
drug dealing, yet the trial court failed, sua sponte, to issue a limiting instruction
pursuant to N.J.R.E. 404(b). Because the uncharged conduct was "intrinsic" to
the charged crimes, we disagree.
Evidence may be intrinsic to the charged crime in two ways. "First,
evidence is intrinsic if it 'directly proves' the charged offense." State v. Rose,
206 N.J. 141, 180 (2011). "Second, uncharged acts performed
contemporaneously with the charged crime may be termed intrinsic if they
facilitate the commission of the charged crime." Ibid. (internal quotation marks
omitted). Evidence that is "intrinsic" to the charged crime is not "other crimes"
evidence, and therefore not subject to N.J.R.E. 404(b). Ibid.; State v. Sheppard,
A-0460-16T4
12
437 N.J. Super. 171, 193 (App. Div. 2014). However, even "intrinsic evidence"
is subject to N.J.R.E. 403, which permits exclusion of "relevant evidence . . . if
its probative value is substantially outweighed by the risk of . . . undue
prejudice." Rose, 206 N.J. at 177.
In this case, evidence of Bouie's drug dealing was minimal, limited to the
date of the incident, and relevant because it arguably provided an opportunity
for the robbery. Indeed, the sole reference to prior drug transactions between
Bouie and Sudano was made during defense counsel's opening statement: "Now,
the evidence will show that for a period of time [Bouie] either facilitated or sold
small amounts of drugs to Mr. Sudano. He was the person Mr. Sudano would
contact when he would come to Asbury Park to purchase his drugs."
Conversely, the prosecutor limited references of Bouie's drug dealing to the day
in question. Because the evidence was not offered to show Bouie's criminal
propensity, see id. at 180-81, a limiting instruction was not necessary.
Accordingly, we discern no error, let alone plain error.
2.
Little needs to be said regarding Bouie's final argument that the trial court
was obligated, sua sponte, to supply the jury with the model instruction on third -
party guilt. See Model Jury Charges (Criminal), "Third Party Guilt Jury Charge"
A-0460-16T4
13
(approved Mar. 9, 2015). That instruction essentially reinforces the more
general instruction to the jurors, which was repeatedly delivered by the court,
underscoring that the State always maintains the burden of proof in a criminal
trial, and the defense has no obligation to prove anything or present any
evidence. The third-party guilt instruction simply ties those general precepts to
a context where, as here, a defendant is suggesting that some other person is
responsible for the harm he is alleged to have caused.
Viewing, as we must, the charge as a whole in light of the record, we are
unpersuaded that the court's omission of the unrequested third-party guilt charge
was likely to cause an unjust outcome in this case. "Plain error in the context
of a jury charge . . . [must be] sufficiently grievous . . . to convince the court
that of itself the error possessed a clear capacity to bring about an unjust result."
State v. Hyman, 451 N.J. Super. 429, 455 (2017) (alterations in original).
"Under the plain error standard, defendant has the burden of proving t hat the
error was clear and obvious and that it affected his substantial rights." State v.
Koskovich, 168 N.J. 448, 529 (2001) (internal quotation marks omitted).
That burden is not met here. The prosecutor did not suggest in summation
or otherwise that the defense had a burden to prove that someone else, rather
than Bouie and Young, stomped the victim to death, or that Bouie was not
A-0460-16T4
14
allowed to rely on evidence from the State's case-in-chief to support such an
alternative theory. The third-party-guilt charge was not needed here to defuse
some misimpression injected into the case. Nor is the situation even remotely
akin to the omission of a lesser-included offense instruction that is "clearly
indicate[d]" by the proofs. Cf. State v. Jenkins, 178 N.J. 347, 361 (2004).
In sum, we are satisfied that neither of the errors alleged by Bouie,
individually or cumulatively, warrants the granting of a new trial. See State v.
Jenewicz, 193 N.J. 440, 473 (2008).
C.
Finally, we address Bouie's sentencing arguments. Bouie contends his
fifty-five-year prison term is excessive and unconstitutional because the court
imposed the sentence without properly considering his age pursuant to Zuber,
227 N.J. 422. He also argues the court erred in finding and weighing aggravating
and mitigating factors.
In particular, Bouie contends the court unconstitutionally failed to
adequately consider his youth, as required by recent United States Supreme
Court and New Jersey Supreme Court precedent, restricting lengthy custodial
terms for juvenile-aged offenders that have the practical impact of imposing a
life sentence without a realistic prospect of parole. Having considered these
A-0460-16T4
15
arguments of unconstitutionality in light of that precedent, some of which was
decided after the sentence was imposed by the trial court in this case, we are
constrained to remand for reconsideration of the sentence.
Our analysis is guided by a series of opinions by the United States
Supreme Court and, most recently, the New Jersey Supreme Court. In Graham
v. Florida, 560 U.S. 48, 82 (2010), the United States Supreme Court held that
the Eighth Amendment of the United States Constitution prohibits the
imposition of a life without parole (LWOP) sentence "on a juvenile offender
who did not commit homicide." The Court observed that juveniles generally
have lessened culpability and are "less deserving of the most severe
punishments." Id. at 68. The Court recognized in Graham that a LWOP sentence
is "especially harsh" for a juvenile, who will "on average serve more years and
a greater percentage of his life in prison than an adult offender." Id. at 70. The
Court noted that LWOP affords no chance for true rehabilitation because a
juvenile who knows that he or she will never leave prison has "little incentive
to become a responsible individual." Id. at 79. The Court's holding in Graham,
however, was limited to nonhomicide offenders. Miller v. Alabama, 567 U.S.
460, 473 (2012).
A-0460-16T4
16
In Miller, the United States Supreme Court clarified that the Constitution
prohibits the imposition of statutory mandatory LWOP sentences upon minors,
even in homicide cases. Id. at 465. The Court stated that the "mandatory penalty
schemes" at issue, which required a LWOP sentence for anyone convicted of
murder regardless of age, improperly prevented the sentencing court from taking
account of the mitigating qualities of youth as required by Graham. Id. at 474-
77. Specifically, the Court found that sentencing a juvenile to LWOP under a
mandatory sentencing statute
precludes consideration of his chronological age and its
hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and
consequences. It prevents taking into account the
family and home environment that surrounds him—and
from which he cannot usually extricate himself—no
matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the
extent of his participation in the conduct and the way
familial and peer pressures may have affected him.
Indeed, it ignores that he might have been charged and
convicted of a lesser offense if not for incompetencies
associated with youth—for example, his inability to
deal with police officers or prosecutors (including on a
plea agreement) or his incapacity to assist his own
attorneys.
[Id. at 477-78.]
A-0460-16T4
17
Despite holding that mandatory LWOP statutes should not be applied to
juveniles, the Supreme Court nonetheless made clear in Miller that it had not
"foreclose[d] a sentencer's ability to make [the] judgment in homicide cases" on
a case-by-case discretionary basis, that a juvenile offender's crime "reflects
irreparable corruption" warranting a LWOP sentence. Id. at 479-80 (citation
omitted). However, the Court stressed that appropriate occasions for imposing
this degree of penalty would be "uncommon." Id. at 479. Thereafter, the Court
specified that the principles of Graham and Miller apply retroactively.
Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, 732-33 (2016).
Our own Supreme Court recently addressed these juvenile offender
sentencing concerns in Zuber, 227 N.J. at 446-47, and a companion appeal in
State v. Comer, 227 N.J. 422, 433-34, cert. denied, ___ U.S. ___, 138 S. Ct. 152
(2017). In Zuber, the Court determined "Miller's command that a sentencing
judge 'take into account how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison,' applies with
equal strength to a sentence that is the practical equivalent of [LWOP]." Id. at
446-47 (quoting Miller, 567 U.S. at 480). The Court explained that the "proper
focus" under the Eighth Amendment is "the amount of real time a juvenile will
spend in jail and not on the formal label attached to his sentence." Id. at 429.
A-0460-16T4
18
In sum, a judge must conduct "an individualized assessment of the
juvenile about to be sentenced—with the principles of Graham and Miller in
mind." Id. at 450. Stated differently, the Court distilled the "Miller factors" as
entailing "[the] defendant's 'immaturity, impetuosity, and failure to appreciate
risks and consequences'; 'family and home environment'; family and peer
pressures; 'inability to deal with police officers or prosecutors' or his own
attorney; and 'the possibility of rehabilitation.'" Id. at 453 (quoting Miller, 567
U.S. at 477-78).
Importantly, as in Graham and Miller, our Supreme Court in Zuber did
not categorically prohibit the imposition of sentences on juvenile-aged offenders
that are the functional equivalent of LWOP. Id. at 450-52. Instead, the Court
stated that "even when judges begin to use the Miller factors at sentencing,"
some juveniles may appropriately receive long sentences with substantial
periods of parole ineligibility, "particularly in cases that involve multiple
offenses on different occasions or multiple victims." Id. at 451.
Here, Bouie was seventeen years old 5 when he committed the present
offenses. Recognizing defendant's age, and the United States Supreme Court's
5
Because Bouie was a juvenile when the offenses were committed, jurisdiction
of his delinquency case was waived to the Law Division by the Family Part
pursuant to Rule 5:22-2.
A-0460-16T4
19
mandates under Miller and its progeny, the trial court acknowledged it was
unconstitutional and inappropriate to sentence Bouie to life imprisonment.
However, the court did not address the Miller factors when analyzing potential
mitigating factors of the sentence imposed.
In fairness to the court, it did not have the benefit of our Supreme Court 's
2017 opinion in Zuber when it imposed sentence on Bouie in September 2016.
Nor did the court have the benefit of the legislation enacted in July 2017 aimed
at implementing the constitutional policies underlying Graham, Miller, and
Zuber. See N.J.S.A. 2C:11-3(b), amended by L. 2017, c. 150.
We recognize Bouie's fifty-five-year sentence with forty-six years and
nine months of parole ineligibility is not literally a LWOP sentence. However,
as a practical matter, it closely approaches it. Accordingly, we conclude Bouie's
sentence must be revisited on remand for an evaluation taking into account the
Miller constitutional factors of youthfulness, this time with the beneficial
guidance of Montgomery, Zuber, and the recent statutory amendment.
Because we are remanding for resentencing in view of the Miller factors,
we need not reach Bouie's remaining arguments regarding the court's assessment
of the aggravating and mitigating factors, which shall be reassessed on
resentencing.
A-0460-16T4
20
Affirmed as to Bouie's convictions. Remanded for reconsideration of the
sentence. We do not retain jurisdiction.
II.
We next consider Young's arguments on appeal:
POINT I
THE JURY INSTRUCTIONS ERRED IN TWO
RESPECTS: (1) FAILING TO EXPLAIN THE
FINDINGS NECESSARY FOR A JURY TO
CONCLUDE THAT ONE IS GUILTY AS AN
ACCOMPLICE OF AGGRAVATED OR RECKLESS
MANSLAUGHTER WHEN THOSE CRIMES
REQUIRE A RECKLESS STATE OF MIND, BUT
ACCOMPLICE LIABILITY REQUIRES A
PURPOSEFUL STATE OF MIND, AND (2) FAILING
TO EXPLAIN THAT, DEPENDING ON HIS
MENTAL STATE, [YOUNG] MIGHT ONLY BE
GUILTY OF RECEIVING STOLEN PROPERTY
EVEN IF [BOUIE] COMMITTED A ROBBERY.
(Not raised below)
A. The jury instruction failed to explain how a verdict
can be returned for accomplice liability for a reckless
crime like aggravated manslaughter when accomplice
liability requires a purposeful state of mind.
B. The accomplice-liability instruction only detailed
the option of a lesser-offense verdict for aggravated or
reckless manslaughter, but did not address the
possibility that [Young] may have only been guilty of
receiving stolen property even if [Bouie] intended a
robbery of the victim.
A-0460-16T4
21
POINT II
THE MATTER SHOULD BE REMANDED FOR
RESENTENCING.
A.
1.
Initially, we consider Young's arguments that the accomplice liability
charge was erroneous, observing he failed to object to the charge when it was
given. As we observed above in considering Bouie's jury-charge argument, "we
analyze his claim . . . through the lens of plain error review." Ross, 229 N.J. at
408.
When the State proceeds under a theory of accomplice liability, "the court
is obligated to provide the jury with accurate and understandable jury
instructions regarding accomplice liability even without a request by defense
counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993); see
also State v. Ingram, 196 N.J. 23, 38-39 (2008). "[W]hen 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." Ingram, 196 N.J. at 38 (second alteration in original).
A-0460-16T4
22
"[J]ury instructions on accomplice liability must include an instruction
that a defendant can be found guilty as an accomplice of a lesser[-]included
offense even though the principal is found guilty of the more serious offense."
State v. Norman, 151 N.J. 5, 37 (1997). Thus, "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.'" Bielkiewicz, 267 N.J. Super. at 528 (third alteration in
original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).
Here, Young first argues the accomplice liability instruction for the lesser-
included offenses of aggravated and reckless manslaughter was erroneous, and
that his rights to due process and a fair trial under the Fourteenth Amendment
were violated. We disagree.
Pertinent to this appeal, the court's instructions concerning accomplice
liability closely tracked the Model Jury Charge, Model Jury Charges (Criminal),
"Liability for Another's Conduct (N.J.S.A. 2C:2-6): Accomplice Charge Two"
(rev. June 11, 2018). See Pressler & Verniero, Current N.J. Court Rules, cmt.
8.1 on R. 1:8-7 (2019) ("Use by the court of model jury charges is recommended
as a method, albeit not perfect, for avoiding error.").
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Nonetheless, Young claims the instruction "badly distorted the requisite
elements of accomplice liability as applied to aggravated manslaughter" because
the court used the terms, "solicited," "aided," "purpose," and "promote," which
do not evince reckless conduct. To support his argument, Young references the
following portion of the court's instruction:
Therefore, in order to find [Young] guilty of the
lesser included offenses of aggravated manslaughter or
reckless manslaughter, the State must prove beyond a
reasonable doubt that . . . Bouie committed the crime
of murder as alleged in the indictment or the lesser
included offense of aggravated manslaughter or
reckless manslaughter; that [Young] solicited . . . Bouie
to commit aggravated manslaughter or reckless
manslaughter or did aid or agree to or attempt to aid
him in planning to commit the aggravated manslaughter
or reckless manslaughter; that [Young]'s purpose was
to promote or [facilitate] at any time the commission of
an aggravated manslaughter or a reckless
manslaughter; that [Young] possessed the criminal
state of mind that is required for the commission of an
aggravated manslaughter or reckless manslaughter.
Young's argument is misplaced.
In State v. Bridges, 254 N.J. Super. 541 (App. Div. 1992), we discussed
the concept of vicarious liability for crimes with a culpability requirement of
recklessness.
What then of vicarious liability for a crime whose
culpability requirement is not knowing or purposeful
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action but rather reckless action? If vicarious liability
requires the purpose that the crime be committed, but if
the crime does not have a purposeful element, can there
be vicarious liability at all? The apparent conundrum
is how one can intend a reckless act. We are, however,
satisfied that that conundrum is semantical rather than
substantive.
....
[I]mposition of vicarious liability for a crime whose
culpability requirement is recklessness requires an
initial focus on the actor's conduct rather than on the
crime itself. As a first condition, the accomplice . . .
must have intended that the actor's conduct take place,
i.e., that the accomplice . . . had the purpose of
promoting or facilitating the commission of that
conduct by the actor and took some step or steps, as
stipulated . . . in order actually to promote or facilitate
that conduct.
If the actor is liable for a "reckless" crime,
vicarious liability for that crime or a lesser-included
"reckless" crime may attach to an accomplice . . . who
purposely promoted or facilitated the actor's conduct;
who was aware when he did so, considering the
circumstances then known to him, that the criminal
result was a substantial and [un]justifiable risk of that
conduct; and who nevertheless promoted that conduct
in conscious disregard of that risk. . . . Vicarious
liability for a "reckless" crime may also, however,
attach when the actor commits an "intent" crime and the
accomplice . . . did not intend that that crime be
committed but nevertheless intended that the actor take
a specific action or actions which resulted in the crime.
If criminal liability for the criminal result of that
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conduct can be predicated on a reckless state of mind,
an accomplice . . . can be vicariously liable for that
"reckless" crime under the same principles which apply
where the actor's culpability is also based on
recklessness. This is so even if the actor himself is
guilty of an "intent" crime. The point . . . is that each
participant in a common plan may participate therein
with a different state of mind. The liability of each
participant for any ensuing crime is dependent on his
own state of mind, not on anyone else's.
[Id. at 563-66 (footnotes and citations omitted).]
See also Bielkiewicz, 267 N.J. Super. at 528-30.
Here, we find Young's arguments concerning the judge's accomplice
liability charge are more "semantical rather than substantive." Bridges, 254 N.J.
Super. at 564; see also Bielkiewicz, 267 N.J. Super. at 528-30. The court
initially informed the jurors to consider "whether [Young] should be found not
guilty or guilty of acting as an accomplice of . . . Bouie with full and equal
responsibility for the crimes charged." The judge then stated,
If, however, you find [Young] not guilty of acting
as an accomplice . . . on the specific crimes charged,
then you should consider whether [Young] did act as an
accomplice of . . . Bouie but with the purpose of
promoting or facilitating the commission of some lesser
offenses than the actual crimes charged in the
indictment.
In accordance with our discussion in Bridges, the court further instructed:
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Our law recognize[s] 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 own state
of mind and not on anyone else's.
We are satisfied that the charge was not in error. The court instructed the
jury that Young's liability depended on his state of mind, and that a defendant
could be found guilty as an accomplice of a lesser-included offense. In doing
so, the court provided the jury with "accurate and understandable jury
instructions regarding accomplice liability." Bielkiewicz, 267 N.J. Super. at
527.
2.
We have considered Young's second argument, that the accomplice
liability charge was flawed because it omitted receiving stolen property, and
find it lacks sufficient merit to warrant discussion in our written opinion. R.
2:11-3(e)(2). Instead, we add the following brief remarks.
The trial court specifically charged receiving stolen property as a lesser -
included offense of second-degree robbery. In particular, the court instructed
the jury: "It is alleged here that [Young] received stolen property, specifically
. . . Sudano's cell phone." To support "a rational basis" for that charge, see
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N.J.S.A. 2C:1-8(e), Young claimed he "accepted the victim's phone from
[Bouie] after the fact." Indeed, four days after the incident, police apprehended
Young with Sudano's cell phone in his possession. Young voluntarily waived
his Miranda rights,6 and initially said he received the stolen phone from Bouie.
Later in his statement, Young admitted he struck Sudano and kicked him
in the face "[t]hree times." Young then acknowledged he and Bouie robbed
Sudano. Young's video-recorded statement was played for the jury at trial,
which found him guilty of robbery.
Nonetheless, at the very least, Young admitted he acted as a principal with
regard to receiving the stolen cell phone. Under those circumstances, we discern
no error, let alone plain error in the court's failure to charge accomplice liability
for receiving stolen property, especially where, as here, the court charged that
offense as a lesser-included offense of robbery.
B.
Finally, Young contends the matter should be remanded for resentencing
because the court imposed a thirty-year parole-ineligibility term instead of the
mandatory eighty-five percent term pursuant to NERA, and the Department of
Corrections "correct[ed]" the sentence without a hearing. Citing our decision in
6
Miranda v. Arizona, 384 U.S. 436 (1966).
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State v. Ramsey, 415 N.J. Super. 257 (App. Div. 2010), Young claims "a remand
for a full reconsideration of sentencing" is necessary. Young's argument is
legally and factually incorrect.
In short, in Ramsey, we remanded for resentencing because the court did
not consider the defendant's parole ineligibility period under NERA. Id. at 271-
72. Conversely, here, the court explicitly stated it was imposing Young's
sentence pursuant to NERA, but mistakenly calculated the parole ineligibility
term as thirty years. Thereafter, the court amended the JOC to reflect the correct
NERA parole ineligibility term. 7 Young's contentions require no further
comment. R. 2:11-3(e)(2).
Affirmed as to Young.
7
Inexplicably, Young only provided the initial JOC in his appendix.
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