March 12, 1997
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICKY L. HUFF, DEFENDANT-APPELLANT.
On appeal from the Superior Court, Appellate Division, whose opinion is reported at 292 N.J. Super. 185 (1996).
Chief Justice Poritz and Justices Pollock, Garibaldi, Stein, and Coleman join in the Court's opinion. Justices Handler and O'hern have filed a separate Dissenting opinion.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. Ricky L. Huff (A-101-96)
(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate division is based substantially on the reasons expressed in Judge Landau's opinion below.
Argued February 18, 1997 -- Decided March 12, 1997
The issue on appeal is whether the simulation of possession of a gun during a robbery was sufficient to sustain a first-degree robbery conviction.
The charges against Ricky L. Huff arose out of a late night robbery of a lone cashier at a 7-Eleven convenience store on December 16, 1993. According to the cashier-victim, the robber purchased a bag of Doritos after asking about directions. The cashier described the robber as a black male, about 200 pounds and six feet tall, with a mustache and closed cropped hair, wearing a dark stadium jacket and a dark shirt. The cashier testified at trial that the robber patted his waist, while saying that he had a gun, and demanded money from the cash register. He left the store after the cashier gave him the contents of the cash drawer.
About two hours later, Huff was stopped by a police officer for a motor vehicle violation. When the officer stopped the car, he observed Huff eating Doritos. Huff could not produce a license or vehicle registration. Recalling a previous radio transmission concerning the 7-Eleven robbery, the officer asked for a description of the perpetrator. Huff matched that description and the officer placed him under arrest. A search revealed that Huff had on his person $597 in small denominations. At the police station, the cashier was able to identify Huff from a photographic array prepared by the police.
At the Conclusion of trial, a jury convicted Huff of first-degree robbery (otherwise known as armed robbery) and third-degree theft by receipt of stolen property. After merger of the theft count into the armed robbery count, Huff was sentenced to the presumptive term of fifteen years, and was required to pay certain fines and penalties.
Huff appealed his convictions to the Appellate Division, claiming that: 1) the trial court's denial of his motion to dismiss the first-degree robbery count was improper because there was no evidence to support a conviction for first-degree robbery; 2) the prosecutor's exclusion of the only black juror that was qualified by the court for service on the jury denied his rights to equal protection and a fair and impartial jury; 3) the total omission of a jury instruction regarding identification denied his rights of due process and a fair trial; and 4) the imposition of the fifteen year presumptive term of imprisonment was excessive.
A majority of the Appellate Division affirmed the decision of the trial court, finding all of Huff's arguments without merit. The majority concluded that Huff failed to make a prima facie showing of discrimination in respect of the State's exercise of a peremptory challenge to excuse the only remaining black juror in the jury venire. According to the majority, a reasonable non-discriminatory basis for the challenge had been established. On the issue of the omission of a specific jury instruction on identification, the majority noted that counsel failed to object at trial. Furthermore, the court did not find the photographic array unduly suggestive. The majority also held that the presumptive term of imprisonment imposed on Huff was based on a proper balancing of aggravating factors, including a substantial history of arrests and convictions, and did not shock the judicial conscience.
The majority cited State v. H uff, 148 N.J. 78, 689 A.2d 723 in support of its affirmance of Huff's conviction of first-degree robbery. Pursuant to statute, robbery is a second-degree crime, unless in the course of the robbery, the perpetrator is armed with, uses or threatens the immediate use of a deadly weapon. Armed robbery is a crime in the first-degree. In Hutson, this Court recognized that the statutory definition of "deadly weapon" would be satisfied if: 1) the defendant possessed a tangible object, i.e., a "device, instrument, material or substance;" and 2) it was reasonable for the victim to believe the object capable of causing serious bodily harm or death. Thus, a first-degree robbery charge could be sustained even if a real gun is not used.
The majority concluded that it was reasonable for the cashier to have accepted Huff's simulation of a gun by patting his waist, which was covered by a loose fitting coat, and stating that he had a gun as he demanded the money in the cash register. In addition, the majority reasoned that Huff's statement regarding the gun properly could have been received in evidence not only to show that the victim reasonably believed Huff's simulation, but also for its truth pursuant to New Jersey Rule of Evidence (NJRE) 803(b). The matter was remanded, however, to modify the sentence to delete certain monetary penalties improperly imposed.
Judge Kleiner Dissented from only that portion of the majority opinion addressing the Hutson issue. Judge Kleiner, believing that the majority misconstrued Hutson, would have vacated Huff's conviction for armed robbery and remanded to the trial court for a judgment of second-degree robbery and resentencing. According to the Dissent, a pronouncement of the robber that he is armed, unaccompanied by the display of any object that could reasonably be mistaken for a deadly weapon, is not sufficient to support a conviction of first-degree robbery. Here, the victim's description failed to demonstrate that she perceived any device, instrument, material or substance that would comply with the statutory definition of deadly weapon. In addition, Judge Kleiner was of the view that Huff's statement to the victim, admissible as a truthful declaration under NJRE 803(b), is still insufficient to sustain a first-degree robbery conviction.
Huff appeals to this Court as of right based on the Dissent in the Appellate Division. Huff also sought but was denied certification to address the other issues raised in the appeal below. Thus, the issue before the Court is a limited one: the propriety of a first-degree robbery conviction based on the simulation of possession of a deadly weapon.
Judgment of the Appellate Division is affirmed substantially for the reasons expressed by Judge Landau in his written opinion below. Ricky L. Huff's alleged simulation of possession of a gun during a robbery was sufficient to sustain a first-degree robbery conviction.
JUSTICES HANDLER and O'HERN Dissent substantially for the reasons expressed in Judge Kleiner's Dissenting opinion below.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN and COLEMAN join in the PER CURIAM opinion. JUSTICES HANDLER and O'HERN filed a separate Dissenting opinion.
This matter was presented to the Court on defendant's appeal as of right pursuant to Rule 2:2-1(a)(2). The Court denied defendant's petition for certification of the issues not covered by the Dissenting opinion below. 146 N.J. 570 (1996).
The portion of the Appellate Division's judgment that is before the Court on defendant's appeal as of right is affirmed, substantially for the reasons expressed in Judge Landau's opinion, reported at 292 N.J. Super. 185, 678 A.2d 731 (1996).
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN, and COLEMAN join in the Court's opinion. JUSTICES HANDLER and O'HERN have filed a separate Dissenting opinion.
HANDLER, J., and O'HERN, J., Dissenting.
We would reverse the judgment of the Appellate Division, substantially for the reasons expressed in Judge Kleiner's Dissenting opinion below, reported at 292 N.J. Super. 185, 194, 678 A.2d 731 (1996).