On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-02-511.
Before Judges Coburn,*fn1 Wells and C.S. Fisher.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant was charged with one count of second-degree robbery, in violation of N.J.S.A. 2C:15-1, and, after being convicted, was sentenced to a sixteen year term of imprisonment subject to an 85% parole disqualifier, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Mandatory monetary assessments were also imposed.
On appeal, defendant raises the following issues:
I. THE COURT'S REFUSAL TO REQUIRE A UNANIMOUS JURY FINDING AS TO WHICH OF DEFENDANT'S ACTS CONSTITUTED A USE OF"FORCE" DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. HENCE, HIS ROBBERY CONVICTION MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.
II. THE COURT ERRED IN PERMITTING THE PROSECUTOR TO ELICIT TESTIMONY THAT TIFFANY DAVIS HAD BEEN NOTICEABLY PREGNANT AT THE TIME OF THE INCIDENT.
III. THE IMPOSITION OF AN EXTENDED-TERM SENTENCE OF 16 YEARS WAS MANIFESTLY EXCESSIVE AND SHOULD BE VACATED.
The contentions raised in Points II and III are clearly without merit and do not warrant discussion. R. 2:11-3(e)(2).
In Point I, defendant questions whether the jury rendered a unanimous verdict when all jurors agreed defendant used force but were divided in considering against whom the force was used. Our inquiry into whether this verdict was unanimous differs from more common challenges to jury unanimity. For example, defendant was not charged with violating a statute which contains"conceptually distinct" offenses, as in United States v. Gipson, 553 F.2d 453, 458 (5th Cir. 1977), or accused of committing a distinct offense in multiple, contradictory ways, thus raising the potential for a non-unanimous"patchwork" verdict, as in State v. Frisby, 174 N.J. 583, 599-600 (2002). Instead, we are required to consider a third category which has received little attention -- whether a particular fact, as to which a jury announces its disagreement, is sufficiently material to call into question the unanimity of its verdict. Because we conclude the jury's disagreement as to which of two persons was victimized by defendant's use of force was immaterial, the judgment of conviction will be affirmed.
At trial, the jury heard evidence that, on November 14, 2001, defendant entered a Rite-Aid drug store in Camden. While he was hiding some small boxes of cigars on his person, a store employee, Tiffany Davis, approached defendant and told him to put the cigars back and leave. Defendant started to comply when Davis's attention was diverted by an unrelated shoplifting incident. Seizing this opportunity, defendant reached for several large boxes of cigars and ran toward the front of the store. Davis testified that defendant"charged" into her, knocking her backwards. Defendant testified that he simply"brushed" Davis as he ran.
As defendant fled, Davis shouted to David Lowe, the store manager. Lowe testified that he ran to the front of the store and intercepted defendant in the vestibule, grabbing the back of defendant's pants in an attempt to keep him from leaving the store. This struggle proceeded onto the sidewalk, where according to one witness, defendant punched at Lowe and tried to break free by twisting Lowe's wrist. According to the testimony of Davis and a customer, Celia Cintron, Lowe ended up on the ground and defendant began kicking, stomping and punching him. Cintron retrieved a steering wheel club from her vehicle and held it out toward defendant, demanding that he stop. Another customer, Jose Martinez, helped pull defendant back into the store vestibule. The doors on both sides of the vestibule were closed and guarded by Cintron and Martinez. While in the vestibule, defendant continued to struggle with Lowe. The police eventually arrived and defendant was arrested.
During deliberations, the jury sent the trial judge a note, indicating that all jurors agreed that"defendant knowingly used force against" either Davis or Lowe, but one group of jurors believed defendant knowingly used force on Davis but not Lowe, and the other group believed defendant knowingly used force on Lowe but not Davis. The jury asked whether this constituted"a unanimous vote." After hearing counsel's views, the trial judge instructed the jury that they were unanimous as to whether defendant knowingly used force. Ten minutes later, the jury returned its guilty verdict. Defendant argues that this instruction was erroneous since it permitted the jury to render a guilty verdict when it had expressed a disagreement as to what defendant actually did in committing the offense.
Our Supreme Court has held that the"unanimity principle is deeply ingrained in our jurisprudence." State v. Frisby, supra, 174 N.J. at 596. Article I, paragraph 9 of the New Jersey Constitution"presupposes a requirement of a unanimous jury verdict in criminal cases," State v. Parker, 124 N.J. 628, 633 (1991), cert. denied, 503 U.S. 939, 112 S.Ct. 1483, 117 L.Ed. 2d 625 (1992), and R. 1:8-9 requires that the"verdict shall be unanimous in all criminal actions." The Supreme Court has determined that jury instructions regarding the unanimity requirement instills in the jury"the necessity of reaching a subjective state of certitude on the facts in issue." State v. Parker, supra, 124 N.J. at 633 (quoting Gipson, supra, 553 F.2d at 457).
Stating the importance of this principle, however, is only the starting point in a given case. As the Court said in Frisby,"[a]lthough the need for juror unanimity is obvious, exactly how it plays out in individual cases is more complicated." 174 N.J. at 596; see also Gipson, supra, 553 F.2d at 456 ("Although a federal defendant's right to a unanimous jury verdict is clear, the scope of that right, unfortunately, is not.").
Jury unanimity problems arise in various ways. Some criminal statutes may create a potential for the lack of unanimity because they group conceptually-different, multiple acts as a single crime. Unanimity problems may also arise when an indictment charges multiple factual occurrences, any of which may be sufficient to support a conviction. And a third category, presented here, occurs when jurors disagree on a specific ...