State v. Williams

• Decision Date: 11 August 2014
• Citation: 218 N.J. 576,95 A.3d 721
• Court: New Jersey Supreme Court
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Kelvin WILLIAMS, Defendant–Respondent.

218 N.J. 576

95 A.3d 721

STATE of New Jersey, Plaintiff–Appellant,

v.Kelvin WILLIAMS, Defendant–Respondent.

Supreme Court of New Jersey.

Argued Oct. 8, 2013.

Decided Aug. 11, 2014.

Jason Magid, Assistant Prosecutor, argued the cause for appellant (Warren W. Faulk, Camden County Prosecutor, attorney).

Michael B. Jones, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).

Kenneth A. Burden, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (John J. Hoffman, Acting Attorney General, attorney).

Justice ALBIN delivered the opinion of the Court.

A jury convicted defendant, Kelvin Williams, of first-degree robbery based on evidence that he entered a bank, told a teller he possessed a bomb, and demanded money. Defendant made no gesture as he issued his threat, and a bomb was not displayed. Defendant was dressed in a hooded sweatshirt and pants, and his hands were not visible. It is undisputed that defendant was not armed with a bomb.

Second-degree robbery is elevated to a first-degree crime when the robber threatens the immediate use of a deadly weapon. N.J.S.A. 2C:15–1(b). This element of robbery does not require that the robber actually be armed with a deadly weapon, but only that he possess any “material or substance ... which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.” N.J.S.A. 2C:11–1(c).

The issue in this appeal is whether defendant's demand of money from the bank employee while telling her he was armed with a bomb, in the absence of any gesture suggesting the truth of his menacing remark, constituted sufficient evidence of an immediate threat to use a deadly weapon. The Appellate Division concluded that the failure of defendant to make some gesture suggesting he was armed with a bomb did not allow a finding that defendant threatened the immediate use of a deadly weapon. The appellate panel therefore overturned the jury verdict.

We disagree with the Appellate Division. Well-documented events since 2001 have made the public painfully aware that bombs can be secreted in cunning ways—under a person's garments, in a shoe, or in luggage—and can be exploded by various means, including by timers and remote devices. A defendant who makes a credible threat that he is armed with a bomb may be taken at his word for purposes of first-degree robbery. So long as the victim had an actual and reasonable belief that a defendant was armed with a bomb based on the totality of the circumstances, including the defendant's words, conduct, and dress, a gesture is not a prerequisite for a finding that defendant threatened the immediate use of a deadly weapon.

We therefore reverse and reinstate defendant's conviction of first-degree robbery, and remand to the Appellate Division for consideration of the remaining issue not addressed in defendant's appeal.

I.

A.

Defendant, Kelvin Williams, was tried by a jury and convicted of first-degree armed robbery, N.J.S.A. 2C:15–1. The evidence presented at trial and relevant to this appeal follows.

On the morning of October 8, 2008, defendant walked into the Sun National Bank in the Borough of Somerdale in Camden County. According to the testimony of head bank teller Cheryl Duncan, defendant stood six-feet tall and was wearing bright orange pants and an oversized white t-shirt underneath a camouflage hooded sweatshirt. As he approached her teller window, defendant's hood was “pulled over his head.”

Once there, defendant leaned his body on the teller counter and told Duncan “that he had a bomb and to give him seven million dollars.” When Duncan was asked by the prosecutor whether she saw a bomb, she responded, “No. But, he had a big hooded sweatshirt on.” Duncan could see defendant's face underneath the hood but his body and hands were not in view. Duncan was frightened and backed up behind her protective glass window. Duncan knew that the bank's customer service representative, Aline Keshishian, who was eight months pregnant and seated at a desk in the lobby, was just a few feet from defendant. Duncan thought that defendant could grab Keshishian and order Duncan to admit him into the teller station. According to Keshishian, defendant's hands were in the pockets of his baggy sweatshirt as he walked toward the teller window, an observation corroborated by a surveillance video introduced into evidence.

At first, Duncan did not believe that defendant had a bomb, thinking, “it's silly for someone to blow themselves up for money.” But she also supposed that defendant might be “crazy enough to do something like that” and thus considered “there [was] a very good possibility that [he had] a bomb.” Duncan did not see a bomb, but she “didn't know he didn't have a bomb.” And although Duncan also stated that she “didn't believe that he had a bomb,” she did not take any chances, handing defendant $552 from her teller's drawer. She did not use the bank's dye pack with marked bills because she was “scared.”

After defendant took the money, he left the bank and got in a cab. Duncan sounded the bank's silent alarm and called 9–1–1, relaying information about the robbery. She told the 9–1–1 operator, “I didn't believe him, but I gave him the money.”

Within minutes of the 9–1–1 call, officers of the Somerdale Police Department responded to the bank. Patrolman Kevin Smith testified that, on his arrival, he spoke with Duncan. She reported that a man—later identified as defendant—entered the bank and approached her teller window, threatening, “I have a bomb strapped to me” or “I have a bomb strapped to my chest,” and demanding “nine million dollars.”

A description of the robber, his clothes, and the getaway vehicle was broadcast. Defendant was tracked to a nearby mall, where he was arrested. At the time of his arrest, defendant was “carrying in his hand a camouflaged hooded sweatshirt” and “wearing jeans, a white and blue striped collared shirt, [and] a baseball hat.” The police took from defendant a receipt indicating that he had purchased for $60.98 in cash jeans and a striped shirt from the mall's Pay Half store and $481 in various denominations. The aggregate of the mall purchase and cash found on defendant closely matched the amount stolen from the bank. In addition, from a trash can inside the Pay Half store, the police recovered bright orange pants and a white t-shirt.

The police transported defendant to the bank where Duncan identified him as the robber. No evidence, however, was gathered suggesting that defendant was actually armed with a bomb.

B.

After both the State and defense rested, defendant moved for a judgment of acquittal on the first-degree portion of the robbery charge. Defendant argued that in a case in which a robber is not actually armed with a weapon, the State must show, in addition to a “threat and demand for money,” that there was “an accompanying gesture” that gave the impression that he possessed a weapon. Defendant submitted that the evidence was insufficient for a finding of guilt on the first-degree charge because he only uttered words, “I have a bomb” and “Give me the money.”

The trial court denied defendant's acquittal motion. In doing so, the trial court looked at the totality of the circumstances, including defendant's words, behavior, and the manner of his dress. The court concluded that “in these days of bombs strapped tightly to chests, bombs as part of a person's clothing ... a jury could find that [defendant] is guilty of armed robbery beyond a reasonable doubt.”

C.

The jury rejected defendant's defense of misidentification and found defendant guilty of first-degree robbery. Defendant was sentenced to a fourteen-year prison term subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43–7.2. The court also imposed a five-year period of parole supervision and the requisite fines and penalties.

Defendant appealed.

II.

In an unpublished decision, the Appellate Division held that, even giving the State the benefit of all favorable inferences, there was insufficient evidence for a jury finding that the bank teller had “a reasonable belief that defendant was armed with a bomb during the commission of the robbery.” Accordingly, the appellate panel reversed defendant's conviction for first-degree robbery.

The panel framed two questions, one general, “what conduct is required to accompany words when the defendant explicitly references a bomb,” and one specific, “whether defendant's clothing and comportment and the nature of his threat provided a sufficient basis upon which to convict him of armed robbery by simulation.” The panel construed the decisional law involving simulation of a “deadly weapon” under N.J.S.A. 2C:11–1(c) as requiring “either an object that clearly simulates a weapon or a combination of words and gestures” that give the impression that a perpetrator is armed with a weapon. The panel refused to distinguish robberies involving a simulated bomb from those involving other simulated weapons, reasoning that “to hold that a bomb threat unaccompanied by a gesture is sufficient to establish robbery by simulation would be to eviscerate the case law requiring that a threat to use a deadly weapon be accompanied by conduct indicative of the existence of the weapon.”

In the present case, the panel emphasized that defendant made no gesture indicating that he had a bomb or was ready to detonate one. In the panel's view, even the manner of defendant's dress provided no clue whether defendant was armed with a bomb: “if he did not say that the bomb was on his body, the fact that defendant was wearing a hooded sweatshirt has little relevance.” Although the panel accepted “as credible Duncan's testimony that she came to believe that defendant had a bomb,” it nevertheless concluded that her belief was unreasonable because it ...