NOT FOR PUBLICATION WITHOUT THE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 only binding 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 NO. A-4599-13T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAYMOND WILSON,
Defendant-Appellant.
__________________________
Submitted September 14, 2016 – Decided July 27, 2017
Before Judges Fuentes and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Indictment No. 12-02-0210.
Joseph E. Krakora, Public Defender, attorney
for appellant (James K. Smith, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Raymond Wilson was tried before a jury and found
guilty of first degree armed robbery, N.J.S.A. 2C:15-1; third
degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-
1b(2); third degree terroristic threats, N.J.S.A. 2C:12-3b; third
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4d; and fourth degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5d. This was the second time defendant stood trial
on these charges. The court declared a mistrial the first time
because the jury could not reach a unanimous verdict.
After applying the doctrine of merger, the trial judge
sentenced defendant to an aggregate term of fifteen years, with
an eighty-five percent period of parole ineligibility and five
years of parole supervision, as required under the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed the
mandatory fines and penalties.
Defendant now argues, for the first time on appeal, that the
trial court erred when it failed to sua sponte instruct the jury
on the concept of accomplice liability and allow the jury to
convict defendant of second degree robbery. Although defendant
is represented by counsel in this appeal, he submitted a pro se
supplemental brief in which he argues the trial court erred by not
suppressing the out-of-court eyewitness identification under the
2 A-4599-13T2
standards adopted by our Supreme Court in State v. Henderson, 208
N.J. 208 (2011). We reject defendant's arguments and affirm.
We gather the following facts from the record developed before
the trial court.
In the summer of 2011, Margaret Gillis owned two McDonald's
fast food restaurants in Neptune Township. Gillis hired Stephanie
Thompson, a retired teacher, to pick up the sales proceeds
generated by the restaurants from Monday through Saturday and to
deposit the money at a local branch of Wells Fargo Bank. The
restaurants were open seven days a week, but the bank closed on
Sundays, so Thompson's Monday pick-ups contained the sales
proceeds from Saturday and Sunday. When this incident occurred,
Thompson had worked for Gillis for the past eleven years.
At approximately 7:45 a.m. on Monday, August 1, 2011, Thompson
drove to the two restaurants and picked up the weekend sales
proceeds. She placed the bag containing the deposits on the front
passenger's side floor of the car and headed to the Wells Fargo
Bank branch located at the intersection of Route 33 and Fortunato
Place in Neptune. She parked the car in a no parking zone located
"right in front of the night deposit box." Although the bank
opened at 9:00 a.m., Thompson testified she customarily delivered
the bag with the cash to the tellers one hour before because the
deposits often comprised thousands of dollars.
3 A-4599-13T2
Following her ordinary routine, Thompson reached down and
grabbed the deposit bag located at the passenger side floor of her
car. As she did this, an unknown man "snatche[d] open" the
driver's side door and said: "[T]his is a robbery." Thompson
initially thought this was mere "horseplay." As she explained:
Being that you see the same people almost
every day and, you know, like I'm from the
town, you know a lot of people, I'm thinking
this is horseplay because everybody knows, you
know, you see the same people. I'm thinking
somebody is going to say "don't do two things
at one time," or "keep the door locked." You
know, last thing in my head is robbery.
Thompson's instinctive reaction to see innocuous “horseplay”
in the face of danger was supported by the physical characteristics
of her assailant. As Thompson explained:
I'm thinking this real quick because I['ve]
been at the high school 37 years, so you know
a lot of people know you. There's a lot of
horse play, but, you know, I'm saying to
myself, this old geezer. I'm thinking this
is one of the men that you see every day. Some
men sit in McDonald's, read the paper. Some,
you know, seniors come in for the senior
coffee. I knew right away. I just knew that,
hey, why would somebody want to rob me. That
wouldn't make sense to me.
Thompson finally realized that she faced a dangerous
situation when the assailant repeatedly yelled: "I'm going to kill
you." The man then used a small knife to cut Thompson's face and
"blood was everywhere." Despite her injuries, Thompson remained
defiant, "banging," "hitting," and "cussing" her attacker. In her
4 A-4599-13T2
own words: "I put up a fight." Thompson also maintained direct
eye contact with defendant during the five or six minutes he was
in her car. As the altercation wound down, Thompson noticed the
assailant looked familiar. A few days later, she realized she
knew him because he frequented the McDonald's. Defendant
eventually grabbed the bag with the deposits, left the car, and
fled to an adjoining parking lot. Gills, the restaurant owner,
testified the bag contained $17,170.33.
While the robbery was happening, Trevor White had driven to
the bank's parking lot to withdraw money from an ATM. He noticed
Thompson's car door was open, a woman was sitting in the vehicle's
driver seat, and a man was "leaning on the seat on his right knee,
[with his] left foot out the door." Because he did not hear any
cries for assistance or anything else that seemed suspicious or
untoward, he did not "pay that much mind" to it. However, as he
returned to his car, White heard someone say "help" twice. When
White looked at Thompson's car, he saw the man was partially inside
the car and had a "knife or a fork" in his hand. White sounded
his car horn to alert the man of his presence and called 9-1-1.
White next stepped out of his car and yelled at the man:
"[W]hat you doing, get out of here." White lost sight of the
assailant when he ran behind bushes at a nearby parking lot.
Although White did not see the assailant's face, he saw him get
5 A-4599-13T2
away in a green Pontiac Bonneville that "was going down Fortunato."
White described the Pontiac to the 9-1-1 operator as a 1993 or
1994 model with a spoiler.
At approximately 7:52 a.m., Neptune Police Officer Michael
Allen responded to a report of a "robbery in progress." Allen
knew Thompson based on her work making these deposit runs for
McDonald's. He observed Thomson had suffered a laceration to her
face and was bleeding. Both Thompson and White provided Allen
with a description of the assailant. Thompson in particular
described her attacker as a heavyset "[b]lack male, approximately
45 to 55 years old," "wearing a light blue polo . . . style shirt,"
"pants [of unknown color]," and "a baseball cap." White gave a
similar description, but added the man wore "gray khaki pants."
Neptune Police Officer Erick Amadruto heard the radio call
of the robbery, which included a description of the assailant, the
vehicle used to flee the scene, and its direction of travel.
Amadruto found a Pontiac Bonneville with New York license plates
on Winding Ridge Drive, parked in a parking lot of a condominium
located approximately a quarter mile from the scene of the robbery.
Amadruto saw a bloody white towel on the car's center console gear
shaft and blood on an armrest. The vehicle was towed to the
Neptune Police Department. The car was registered to Jerome
Coverdale of Yonkers, New York. Coverdale told law enforcement
6 A-4599-13T2
investigators that his friend Raymond Wilson used the car
exclusively. Inside the car, law enforcement investigators found
a towel stained with blood, a baseball cap, a sneaker stained with
blood, a grill fork, and documents. The New Jersey State Police
Laboratory forensically investigated and analyzed the DNA
retrieved from the items the police recovered inside the car and
found they matched defendant's DNA. Investigators also found
defendant's wallet and social security card in the car.
On August 2, 2011, Monmouth County Prosecutor's office
Detective Jose Cruz, acting as an independent agent, administered
an eyewitness identification procedure in which Thompson selected
defendant's photograph from an array of six photographs. Thompson
also provided investigators with a detailed statement describing
the assailant. White similarly selected defendant's photograph
as the man he saw in Thompson's car.
Law enforcement investigators learned that a man named
Shequan Williams, whose wife worked at McDonald's, originally
conceived of the plan to rob Thompson. Williams, however, did not
participate in the robbery. When he later learned that Thompson
had been injured in the scuffle over the deposit money, he
voluntarily contacted a detective he knew from the Asbury Police
Department and gave a full statement on September 9, 2011.
7 A-4599-13T2
Williams also testified at trial as a witness for the State. He
provided the following explanation for his decision.
[W]hen I find out that this lady got cut in
her face, man, that's what got me upset. Like
I would have left it alone. I would have left
it alone, that was my wife's teacher. That
was my wife's teacher. She's a real close
family friend and it was just wrong, like,
come on, she's an old lady. You got to cut
an old lady? A [sic] old lady?
PROSECUTOR: Let me stop you for a second.
Mr. Williams, you're talking about how it's
wrong, correct?
A. Yes.
PROSECUTOR: But you said that you planned to
rob her yourself, correct?
A. Yes.
PROSECUTOR: Why is what you were going to do
any different than what happened?
A. I wouldn't hurt her, at all.
PROSECUTOR: How would you have done it?
A. I would have snatched the bag and ran.
That's what I would have done.
Williams stated he originally approached his friend Marcus
Evans with the idea of robbing Thompson. Williams and Evans met
defendant in August 2011. The three men went to McDonald's to see
how Thompson picked up the deposit bag. They next followed
Thompson to the bank. On August 1, 2011, Evans told Williams that
he was "going to take this job" from him because he was taking
8 A-4599-13T2
"too long about it." Williams interpreted Evan's message as a
threat to take away money that Williams depended on to finance a
vacation with his wife. He responded by immediately going to his
house to retrieve supplies he needed to rob Thompson without being
identified. These items included "a gray hoodie and stocking
cap."
When Williams drove into the Wells Fargo Bank parking lot,
he received another call from Evans warning him not to go forward
with the robbery. As Williams approached the Bank's parking lot,
he noticed defendant looking inside the trunk of a green car. This
prompted Williams to abandon his plan to rob Thompson. As Williams
explained to the jury: "I'm going to leave because I'm not going
to jail for some stupid shit that they do." Williams identified
defendant as the assailant, both in court and through a photo
array presented during the investigation.
After Williams gave his statement related to this crime on
September 9, 2011, he was arrested on an open parole violation
warrant issued by New York State and housed in the Monmouth County
Correctional Institution (MCCI). While awaiting disposition of
this parole violation, Williams encountered defendant while they
were both in the MCCI Intake Housing area. Williams also
interacted with defendant when defendant was housed in the "G2"
section of the MCCI, which Williams claimed was "right next door
9 A-4599-13T2
to me." Williams provided the following description of this
custodial setting:
So there's a big glass that separates us. We
see each other every day. I actually didn't
know that he was there at first until . . . I
saw my brother-in-law and when I saw my
brother-in-law, I happened to see Mr. Wilson
sitting by the table watching T.V. also; and
I asked my brother-in-law to call him. I
wanted to make sure that that was the person
that I saw or that person that I met.
When I saw him, I asked him to come outside.
It's all glass, all around, and it was their
time for yard. We had the gym, but we can
talk through the glass or we can talk through
the doors and we had a conversation.
In that conversation, he admitted to me that
he did it. He told me that he didn't cut her,
that all he did was put the fork to her face.
I said a fork? He said yeah, a fork. You
know, one of those big BBQ fork[s]? That's
all I had. He put the fork to her face and
the only reason she got cut is because how she
was fighting. He said, man, that bitch was
strong. She was trying to bite my fingers and
everything, just going off.
Defendant presented an alibi defense. He denied having any
involvement with this crime because he was home in Yonkers, New
York on the morning of August 1, 2011. In support of this defense,
defendant called his wife Lisa Stewart as his alibi witness. As
of the time of trial, Stewart testified she had been married to
defendant for twenty-nine years. She and defendant had never been
to Neptune before defendant was arrested on August 10, 2011 in
10 A-4599-13T2
connection with this crime.1 According to Stewart, at 7:00 a.m.
on Monday, August 1, 2011, the day and time the robbery occurred,
defendant was at home with her in Yonkers.
Stewart testified she worked for the WestMed Medical Group
as a "clerical associate's office manager" when the robbery
occurred. When she woke up at 7:00 a.m. that Monday to go to
work, defendant was "[i]n the bed with a hangover." When asked
why he was "hungover," Stewart responded: "Because he went out
th[e] night before." When defense counsel asked her to elaborate
on defendant's condition that morning, Stewart stated: "Hung
over[,] [d]runk, drunk, drunk, drunk, like when he came in, and
then that morning he was just laying in the bed sick, you know.
If you drink too much[,] you get a hangover and he was just sick."
Defendant was sixty-five years old when he testified in his
own defense on December 10, 2013. He corroborated his wife's
testimony about being hungover when the robbery occurred. He
testified he was "socializing" at the "marina" the night before
and overextended himself. He did not remember which one of his
"associates" drove him home. Although he realized his car was
missing, defendant claimed he did not learn that Williams and
Evans had taken it until later.
1
Stewart testified that defendant was initially held in a jail
located in Westchester, New York for a period of two to three
weeks before he was transported to the MCCI.
11 A-4599-13T2
Defendant testified he knew Evans "[f]rom the neighborhood."
He did not know Williams at all until he met him at a party in
Yonkers. He claimed Williams set him up as the "fall guy" in this
robbery. He saw both Williams and Evans at the MCCI and claimed
they threatened him "[i]n a roundabout way." When asked by his
attorney to elaborate, defendant merely stated: "Just keep your
mouth shut." Although defendant denied any involvement in the
robbery, he conceded the towel that the police found inside his
car contained his blood. He claimed the blood was on the towel
from a self-inflicted injury to his finger that occurred about one
month before the robbery.
Against this record, defendant now appeals raising the
following arguments.
POINT I
GIVEN THE PROSECUTION'S THEORY THAT MARCUS
EVANS AND SHEQUAN WILLIAMS WERE "INVOLVED IN"
THE ROBBERY WITH DEFENDANT, THE TRIAL COURT
ERRED IN FAILING TO CHARGE THE JURY ON
ACCOMPLICE LIABILITY, AND IN FAILING TO GIVE
THE JURY THE OPTION OF CONVICTING DEFENDANT
OF SECOND-DEGREE ROBBERY. (Not Raised Below)
POINT II
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT
THE JURY THAT IT SHOULD RECEIVE AND WEIGH
SHEQUAN WILLIAM'S TESTIMONY ABOUT DEFENDANT'S
SUPPOSED CONFESSION WITH CAUTION, AND ONLY
CONSIDER IT IF THEY BELIEVE IT TO BE TRUE.
(Not Raised Below)
12 A-4599-13T2
In his pro se supplemental brief, appellant raises the
following argument.
POINT I
THE TRIAL COURT SHOULD HAVE SUPPRESSED THE
RESULTS OF THE EYEWITNESS IDENTIFICATION AS
IMPERMISSIBLY SUGGESTIVE AND UNRELIABLE.
We begin our analysis by emphasizing that all of the arguments
defendant now makes in this appeal were not raised before the
trial court. Thus, these arguments will be reviewed under the
plain error standard, which requires this court to disregard any
error or omission "unless it is of such a nature as to have been
clearly capable of producing an unjust result[.]" R. 2:10-2. We
must also review the jury charge as a whole. State v. Baum, 224
N.J. 147, 159-60 (2016). Guided by this standard of review, we
are satisfied the trial court properly instructed the jury on all
of the relevant legal issues.
Williams's testimony describing his role in this crime did
not warrant that the court sua sponte instruct the jury on the
legal elements of accomplice liability as defined in N.J.S.A.
2C:2-6. Defendant's defense strategy was based on the alibi
testimony presented by his wife. Thus, defense counsel did not
ask the court to instruct the jury on accomplice liability during
the charge conference held pursuant to Rule 1:8-7(b).
13 A-4599-13T2
Defendant's remaining arguments raised by his appellate
counsel lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). In the interest of clarity, we indicate
there was no rational basis for the trial judge to sua sponte
instruct the jury on the lesser included offense of second degree
robbery. See State v. Carrero, ____ N.J. ____, ____ (2017) (slip
op. at 19); N.J.S.A. 2C:1-8(e). The trial court also correctly
instructed the jury on how to consider and evaluate Williams's
testimony concerning defendant's alleged inculpatory statements.
State v. Cook, 179 N.J. 533, 552 (2004).
Finally, defendant's pro se argument is wholly without merit.
Applying the then-prevailing analytical standards, the trial court
found the law enforcement investigators properly followed the
identification procedures acceptable at the time. The standards
that the Supreme Court established in State v. Henderson, 208 N.J.
208, 302 (2011), do not apply to this case.
Affirmed.
14 A-4599-13T2