On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
J. H. Coleman, Gaulkin and Shebell. The opinion of the court was delivered by J. H. Coleman, J.A.D.
Following a jury trial, defendant was found guilty of conspiring with Larnell Holcomb, Dewey Upshaw, Clarence Waldron and Tyrone Coleman to commit an armed robbery contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1. He was sentenced to a custodial term of ten years with five years of parole ineligibility.
On this appeal, defendant contends:
1. THE STATE FAILED TO MEET ITS HEAVY BURDEN WITH RESPECT TO DICKENS' INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS.
2. THE COURT'S INSTRUCTION AS TO THE LAW OF CONSPIRACY AND CIRCUMSTANTIAL EVIDENCE WERE CONFUSING AND MISLEADING TO THIS LAY JURY AND MANDATES REVERSAL OF DEFENDANT'S CONVICTION.
3. THE TRIAL COURT'S COMMENT UPON THE EVIDENCE PREJUDICED DEFENDANT AND CONSTITUTED REVERSIBLE ERROR.
4. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT CHARGED THE JURY THAT THE STATE COULD MEET ITS BURDEN OF PROOF THROUGH "WHAT DEFENDANT SAYS."
5. THE COURT ERRED BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.
6. THE TRIAL COURT IMPROPERLY DENIED DEFENDANT DICKENS' MOTION FOR SEVERANCE DUE TO PREJUDICIAL JOINDER.
7. THE TRIAL COURT'S SANCTIONING OF DELIBERATIONS AFTER MIDNIGHT ON GOOD FRIDAY HAD A COERCIVE EFFECT ON THE JURY.
8. THE TRIAL COURT ERRED BY PERMITTING OFFICER STANKOVITS TO STATE THAT THE CAR USED IN THE ROBBERY HAD NOT BEEN REPORTED STOLEN.
9. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR CHANGE OF VENUE OR, IN THE ALTERNATIVE FOR A FOREIGN JURY TO BE UTILIZED.
10. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING APPELLANT DICKENS TO A LENGTHY CONSECUTIVE TERM OF CONFINEMENT AND BY LATER DENYING DEFENDANT'S MOTION FOR A REDUCTION IN SENTENCE.
11. THE AGGREGATE EFFECT OF THE COURT'S ERRORS WAS TO DEPRIVE DEFENDANT OF A FAIR AND IMPARTIAL TRIAL.
The State's theory against defendant essentially is that he conspired with Holcomb and others to rob the University Savings Bank in North Brunswick between August 27 and 28, 1980. Defendant's role was to provide transportation with his girlfriend's automobile. Almost immediately after the robbery, the getaway car crashed into a tree while the police were in hot pursuit. The four co-felons and occupants of the getaway car were arrested on August 28, 1980 or shortly thereafter. Defendant, however, was not arrested until December 30, 1980. After the arrest by the FBI in Trenton, defendant was turned over to Detective Zimmerman of the Middlesex County Prosecutor's office.
Zimmerman transported defendant to the Middlesex County Prosecutor's office. Defendant was asked to give a statement. The following colloquy ensued between defendant and Zimmerman before the statement, later admitted as evidence, was given:
Q. Would you be willing to answer some questions about that car [1969 Cadillac registered to Bernice Evans, defendant's girlfriend] and about anything that ...