SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2857-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS H. OUTLAND, a/k/a

THOMAS GO OUTLAND, 

ISLAM GOODWIN, and THOMAS 

H. JAMISON,

Defendant-Appellant.

Submitted April 3, 2019 – Decided June 17, 2019

Before Judges Alvarez and Reisner.

On appeal from Superior Court of New Jersey, Law 

Division, Union County, Indictment No. 16-02-0107.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Michael Timothy Denny, Assistant Deputy 

Public Defender, of counsel and on the brief).

Michael A. Monahan, Acting Union County 

Prosecutor, attorney for respondent (Michele C. 

Buckley, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the briefs).

NOT FOR PUBLICATION WITHOUT THE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.
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Appellant filed a pro se supplemental brief.

PER CURIAM

Tried by a jury, defendant Thomas Outland was convicted of seconddegree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and 2C:5-2, and fourthdegree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 

2C:39-4(e). He was acquitted of first-degree robbery, N.J.S.A. 2C:15-1. On 

August 25, 2017, the trial judge sentenced defendant to nine years 

imprisonment, subject to the No Early Release Act eighty-five percent parole 

ineligibility. See N.J.S.A. 2C:43-7.2. He imposed an eighteen-month term of 

imprisonment on the possession charge, to be served concurrently to the 

conspiracy. The sentences ran consecutive to a sentence defendant was then 

serving. He appeals the conviction and also argues the judgment of conviction 

(JOC) should be corrected to reflect the correct degree of the crime. We affirm 

defendant's conviction. With the State's consent, we remand for the limited 

purpose of correcting a typographical error in the JOC.

At trial, five McDonald's employees testified regarding the incident, 

which occurred after closing on September 4, 2015. Mr. Martinez, the only 

victim named in the robbery count, was about to place the restaurant receipts in 
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a safe in his office at the back. The remaining employees were cleaning and 

preparing for the following day.

Defendant and a person who was never identified entered the restaurant 

wearing masks and carrying firearms. Defendant was carrying what appeared 

to be a shotgun. As he walked towards the door to Martinez's office, a female 

employee saw him and began to cry.

Mr. Exume, another employee, testified that he heard defendant say to 

Martinez, "hold up, hold up, you're being robbed." Martinez only remembered 

seeing defendant standing in front of him holding a weapon. Exume realized 

that the shotgun was an imitation, and said: "I told him to, you know what the 

f--- did you do with a fake toys gun and I say it in a loud voice, as my military 

speaking, drill sergeant voice, very forceful." Defendant then lifted his ski mask 

and told Martinez, "this is a joke." Martinez recognized defendant because he 

had worked at the restaurant until approximately a month before. Martinez

raised his hands to "lower the weapon that was there" as defendant approached

him. Immediately afterwards, defendant left. Exume also testified that 

defendant laughed when he removed his ski mask, but that it sounded "fake." 

Meanwhile, towards the front of the restaurant, the other masked man 

grabbed Mr. Estrada's arm, and pulled him over to a counter demanding his cell 
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phone. While approaching Mr. Salazar, who was mopping the floor, the man 

slipped and fell. Salazar saw the man holding a gun, and although his 

understanding of English was limited, he emptied his pockets, placing his cell 

phone and twenty dollars on the table.

Defendant returned to the front of the restaurant still laughing, gave 

Estrada a hug, and told the other man to give everything back. Once the items 

were returned, defendant and the other man left.

Police were not called that night since Martinez knew defendant was the 

brother of a more senior manager at the same McDonald's, and he wanted to 

discuss whether he should report the incident with his general manager. One of 

the other employees contacted the authorities.

Defendant's trial strategy was to cast the incident as nothing more than a 

poor joke gone awry. The State's theory was that it was robbery, aborted when 

Exume announced that the weapon was a fake.

Three days before the trial was scheduled to begin, the court heard

defendant's motion to represent himself, which had been filed some four months 

earlier. During the course of the colloquy, defendant explained he wanted to 

represent himself with the assistance of an attorney from the public defender's 

office, and that he had applied for their services. Defendant, a high school 
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graduate, was unable to accurately respond to the judge's questions regarding 

his sentencing exposure if convicted of robbery, including the fact that because 

he was mandatory extended-term eligible, he could be sentenced to life. He had

limited experience with trials despite his criminal record. Defendant was 

unfamiliar with terms such as accomplice liability, renunciation, or the defense 

of intoxication. He was also unfamiliar with the criminal code or the rules of 

evidence. Defendant had fired his attorney that day.

Defendant did not know that he was charged with conspiracy in addition 

to robbery. He told the judge because he "was there when the incident took 

place," he was the most familiar with the circumstances and therefore "the best 

person to represent [him]self."

The judge denied the application, finding defendant lacked a sufficient 

understanding of the rudiments of the law, including affirmative defenses which 

might be applicable in his case. Most significantly, defendant had little 

understanding of the charges he faced or the grave potential sentencing 

consequences. The judge found that defendant's responses would "not support 

even remotely a finding that the defendant ha[d] intelligently attempted to waive 

the assistance of counsel." The judge noted that the attorney who was 

representing defendant at that time was the second lawyer in the case. The judge 
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then granted the attorney's application to withdraw in light of the fact that his 

client no longer wished him to represent him, and rescheduled the trial.

At the close of the case, the judge extensively reviewed jury charges with 

counsel, and after instructing the jury, reaffirmed that there were no objections. 

During deliberations, the jury asked the judge "[i]s it possible to find [defendant] 

guilty of conspiracy if we don't believe he intended to rob [Martinez][?]" The 

question was followed by a bullet point requesting "clarification of the meaning 

of 'conspiracy to commit robbery.'"

With counsel's consent, the judge told the jury:

Yes, it is possible to find the Defendant guilty of 

conspiracy even if the jury does not believe the 

Defendant intended to rob [Martinez].

"A conspiracy to commit the crime of robbery is 

a crime in itself separate and distinct from the crime of 

robbery. In other words, a defendant may be found 

guilty of the crime of conspiracy regardless of whether 

that defendant is guilty or not guilty of the crime of 

robbery."

"Each offense in this indictment should be 

considered by you separately. The fact that you may 

find the Defendant guilty or not guilty of a particular 

crime should not control your verdict as to any other 

offense charged against the Defendant."

As to seeking a clarification on conspiracy, I 

refer you to my previous legal instructions on 
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conspiracy from pages 15 to 18 in the written 

instructions.

Now on appeal, defendant's counseled brief asserts the following points:

POINT I

THE TRIAL COURT'S INCORRECT AND 

GROSSLY MISLEADING RESPONSE TO THE 

JURY'S QUESTION IMPROPERLY PERMITTED 

THE JURY TO CONVICT DEFENDANT OF 

CONSPIRACY EVEN IF THEY DID NOT BELIEVE 

HE HAD A SHARED PURPOSE TO COMMIT 

ROBBERY.

POINT II1

THE JUDGMENT OF CONVICTION SHOULD BE 

AMENDED TO REFLECT THE CORRECT DEGREE 

OF THE CRIME.

In his pro se brief, defendant raises the following point:

POINT I

THE TRIAL COURT ERRED WHEN IT DENIED 

APPELLANT, A CRIMINAL DEFENDANT HIS 

CONSTITUTIONAL RIGHT TO REPRESENT 

HIMSELF AT TRIAL AFTER ASSERTING HIS 

CLEAR AND UNEQUIVOCAL, KNOWINGLY AND 

INTELLIGENTLY WAIVER OF HIS RIGHT TO 

COUNSEL.

 

1

 The State agrees that the judgment of conviction requires amendment to reflect 

defendant was convicted of second-degree conspiracy, not first-degree. 

Accordingly, we do not address that issue.
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I.

Defendant contends that the trial court erred in responding to the jury's 

question because the judge's response allowed them to convict defendant of 

conspiracy without addressing any shared purpose to commit robbery. There 

can be no doubt that appropriate jury charges are essential to a fair trial. State 

v. Baum, 224 N.J. 147, 158-59 (2016). "Because proper jury instructions are 

essential to a fair trial, 'erroneous instructions on material points are presumed 

to' possess the capacity to unfairly prejudice the defendant." Id. at 159 

(quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).

Defendant did not object at trial, thus we consider the point applying the 

plain error standard. See R. 2:10-2. Defendant must demonstrate the claimed 

error was "clearly capable of producing an unjust result." Ibid. In the context 

of a jury charge, plain error is a "[l]egal impropriety in the charge prejudicially 

affecting the substantial rights of the defendant and sufficiently grievous to 

justify notice by the reviewing court and to convince the court that of itself the 

error possessed a clear capacity to bring about an unjust result." State v. 

Camacho, 218 N.J. 533, 554 (2014) (alteration in original) (quoting State v. 

Adams, 194 N.J. 186, 207 (2008)). In order to determine whether the error 

affected defendant's substantial rights and was sufficiently grievous for us to 
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reverse a conviction, the jury instructions will be considered as a whole. State 

v. Brown, 190 N.J. 144, 160 (2007). Where, as in this case, there was no 

objection to the charge, "there is a presumption that [a] charge was not [in] error 

and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 

157, 182 (2012) (citing State v. Macon, 57 N.J. 325, 334-34 (1971)).

The basis for defendant's argument is the fact that the jury acquitted 

defendant of the robbery charge. But the absence of direct proofs of an 

agreement between defendant and his co-conspirator does not mean that their 

conduct did not provide overwhelming circumstantial evidence of a shared 

purpose. Neither does the jury's not guilty verdict on the robbery count, which 

named only Martinez as the victim, somehow establish a failure to find a shared 

purpose.

Defendant and his co-conspirator walked into the McDonald's together, 

both carrying weapons, or what the victims had reason to believe were weapons. 

It was not until Exume said the weapon defendant was carrying was not real that 

defendant reversed course. He and the other man were outnumbered.

The judge's conspiracy instruction, which he gave orally and in writing,

tracks the model jury charge. It states that a person can be convicted of 

conspiracy only if
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with the purpose of promoting or facilitating its 

commission [he]: (1) [a]grees with such other person or 

persons that they or one or more of them will engage in 

conduct which constitutes such crime or an attempt . . .

to commit such crime; or (2) [a]grees to aid such other

person or persons in the planning or commission of 

such crime or of an attempt . . . to commit such crime.

[Model Jury Charges (Criminal), "Conspiracy 

(N.J.S.A. 2C:5-2)" (rev. Apr. 12, 2010).]

The judge told the jury that defendant must have agreed with his co-conspirator 

and that his purpose must have been "to promote or facilitate the commission of 

the crime of robbery." He defined purpose.

Thus there is neither a basis in the facts or the record for the jury to have 

been mistaken, nor any indication they ignored the mental state required to prove 

the offense. Defendant's co-conspirator relieved the employees of their 

belongings in the room which defendant, while holding a "shotgun," had just 

walked through headed towards Martinez's office and the cash receipts. Nothing 

in the record suggests defendant acted with a purpose other than to rob the 

restaurant and those inside jointly with the other masked man. The judge's 

charge explained the required state of mind. The circumstances supported a 

finding of a shared purpose. Therefore, the instruction did not possess a clear 

capacity to bring about an unjust result.

II.
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In his pro se brief, defendant argues that the court's failure to permit him 

to represent himself was reversible error. As a threshold matter, we note that it 

is not so clear that defendant actually wanted to represent himself. He wanted 

to represent himself with a public defender sitting at his side as a guide. That is 

more than just stand-by counsel.

Certainly, a defendant in a criminal matter has the right to counsel under 

the Sixth Amendment to the United States Constitution and Article 1 Paragraph 

10 of the New Jersey State Constitution. Within that Sixth Amendment right to 

counsel is the right a defendant has to dispense with counsel's assistance and 

represent himself. Faretta v. California, 422 U.S. 806, 836 (1975).

Although we question whether this was an unequivocal request for selfrepresentation, the trial judge engaged in the inquiry outlined in State v. Crisafi, 

128 N.J. 499, 510-12 (1992). The judge explained to defendant the nature of 

the charges, possible defenses, the range of punishment, the risks that come with 

self-representation, the requirement that defendant abide by rules of the court, 

and the inadvisability of proceeding on a self-represented basis. State v. 

Figueroa, 186 N.J. 589, 593 (2006). In State v. Reddish, 181 N.J. 553, 593-94 

(2004), the Court expanded the inquiry to include the practical consequences 

that might hamper a defense when a defendant is allowed to proceed pro se.
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There is no doubt that a defendant who represents himself does so to his 

"likely detriment." Id. at 580. The Court has said "that a defendant who 

represents himself 'relinquishes, as a purely factual matter, many of the 

traditional benefits associated with the right to counsel.'" Ibid. (citing Faretta, 

422 U.S. at 835). But because it is the defendant who bears the consequences 

of a conviction, it is only the defendant who should decide whether or not selfrepresentation is a particular advantage in that case. Ibid.

The judge's exploration of defendant's ability to represent himself focused 

narrowly on his technical knowledge, which is not dispositive of a knowing, 

intelligent, and voluntary waiver of the right to counsel. See Faretta, 422 U.S. 

at 836. In this case, however, had defendant been convicted of the first-degree 

robbery, the sentencing consequences would have been a life sentence imposed 

consecutive to a sentence for robbery defendant was already serving. Defendant 

was unaware of that sentencing consequence. Nor did he know the actual 

charges that were pending against him, including conspiracy, would have been 

a much more difficult charge for him to defend, given the circumstances of the 

case.

The judge's inquiry adequately elicited two key pieces of information that 

warranted denial of the motion. Despite the fact the motion was heard just three 
13 A-2857-17T4

days before trial, defendant did not know the charges he faced or the fact that,

if convicted, he would be serving a life sentence consecutive to a sentence he 

was already serving. Thus, the judge's failure to allow defendant to represent 

himself was not error because defendant was not making a knowing and 

intelligent waiver.

Affirmed as to the conviction. Remanded to correct the JOC. We do not 

retain jurisdiction.