On appeal from the Superior Court, Law Division, Somerset Count.
Morton I. Greenberg, J. H. Coleman and Long. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before this court on defendants' appeals from judgments of conviction in a criminal case arising from an armed robbery by defendant Frederick Childs of a Kaufman Carpet store in Greenbrook, New Jersey. Defendant Rose Marie Ketchum was the operator of the vehicle in which Childs fled from the scene. Defendants jointly appealed but after a substitution of attorney was filed for Ketchum we severed the appeals. We now consolidate the appeals for purposes of decision.
The indictment returned in Somerset County charged both defendants in the first count with first degree armed robbery, N.J.S.A. 2C:15-1. Childs was separately indicted for second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7 (count four); fourth-degree unlicensed acquisition of a
handgun, N.J.S.A. 2C:39-10 (count five); third-degree aggravated assault of two uniformed police officers while they were acting in the performance of their duties, N.J.S.A. 2C:12-1(b)(5) (counts six and seven); and fourth-degree unlawful possession of hollow-nosed bullets, N.J.S.A. 2C:39-3(f) (count eight). Defendants pleaded not guilty.
At a pretrial hearing the court, though precluding the use of one conviction, ruled that four other prior convictions of Childs could be used against him for impeachment purposes under State v. Sands, 76 N.J. 127 (1978). At the ensuing jury trial Childs was found guilty of armed robbery, unlawful possession of a handgun with an unlawful purpose, simple assault as a lesser included offense under the third count and unlawful possession of snub-nosed bullets. He was found not guilty of the unlicensed acquisition of a handgun and the two charges of aggravated assault on the police officers. Count four was severed and thus was not submitted to the jury. Ketchum was found not guilty of armed robbery but guilty of the lesser included offense of hindering the apprehension of an individual, N.J.S.A. 2C:29-3.
As a result of the acquittals and mergers Childs was sentenced only on the first and eighth counts. On the first count he was sentenced to an extended term of 50 years with a 25 year period of parole ineligibility. On the eighth count he was sentenced to a concurrent term of 18 months. Ketchum was sentenced to an indeterminate term not to exceed five years. Both defendants were assessed appropriate penalties for the use of the Violent Crimes Compensation Board.
The following evidence was developed at the trial. On September 5, 1983 four employees were present at the Kaufman Carpet store in Greenbrook when a man, later identified by two of them as Childs, entered the store at about 7:15 p.m. The store was well lit at that time. Childs told one of the employees, John Goleskie, who was on the telephone to put it down. Childs then pulled the telephone from Goleskie's hands after
which he produced a gun, cocked it and struck vice president Pat LePre in the ribs. Childs then demanded money. John Mayers, another employee, kept all cash receipts in his pocket as the store had no cash register. Mayers produced $1,240 in $100, $50 and smaller bills. Childs took this money and demanded more. The employees offered money from their wallets which Childs declined. He then left the store warning the employees he would shoot if they followed him.
After Childs left the store Mayers went to the front door and was able to see a white El Dorado with out-of-state license plates on the shoulder of Route 22 pulling into traffic. He saw no other vehicle pulling out. Mayers yelled this description of the car to LePre who was already on the telephone with Greenbrook police and LePre passed the description onto the police. At that time Patrolman Schultz of the North Plainfield police, while on routine patrol, heard the radio description of the white El Dorado. He saw a car drive by him matching that description driven by a female with a man crouched down in the passenger seat. Shultz pulled the car over. Other police arrived and Ketchum, the driver, and Childs, the passenger, were detained. Kaufman employees Goleskie and Mayers were brought to the scene and within 10 or 15 minutes after the robbery identified Childs as the man who had robbed them, an identification they repeated at the trial. When Childs was stopped, he was wearing the same clothes he had been wearing during the robbery. Defendants were arrested but a search of the immediate vicinity and a pat down of Childs produced no weapons.
Defendants were taken to the police station. In a strip search the police recovered four $50 bills from Ketchum's bra and $122 from her purse. The police had difficulty in searching Childs. Obviously they were concerned about the weapon so when none was found a body cavity search was ordered, a procedure to which Childs vehemently objected. There was a brawl after the police attempted to disrobe Childs and it took six or seven police officers, one using a blackjack, to subdue
and handcuff him. There were injuries in the fighting and Childs became unconscious. $200 was found in Childs' wallet. The police called the rescue squad to transport Childs to the hospital and while he was unconscious in the rear of the squad vehicle, a police officer, Carl Gaebel, unzipped Childs' pants and recovered a small handgun from his underwear. Gaebel testified that although there was an attendant present when the weapon was recovered, he did not know his name, nor did he indicate in his police report that the attendant had been present at that time. Neither side called this attendant as a witness.
Childs and Ketchum testified in their own defense. Childs said he and Ketchum were driving from Phillipsburg to East Orange, returning to a party. At the time they were stopped he had been drinking and was dozing, slumped in the front passenger seat. He denied being the robber and said he never had a weapon. Ketchum corroborated Childs' testimony.
On this appeal Childs contends:
POINT I -- APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO EFFECT PARTICULAR INVESTIGATORY MEASURES WHICH WOULD HAVE UNCOVERED ...