On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-10-1402.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Cuff, C.L. Miniman and Baxter.
Defendant Terrique Jones appeals from his August 18, 2006 conviction following a trial by jury*fn1 on first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count four); two counts of third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5) (counts five and six); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count seven). The jury acquitted him of second-degree conspiracy to commit aggravated assault (count one). At sentencing, the judge merged counts three and four with count two and imposed a sentence of twenty-seven years imprisonment subject to the eighty-five percent parole disqualifier that is required by N.J.S.A. 2C:43-7.2. On counts five, six and seven, the judge imposed concurrent five-year terms of imprisonment, with a two and one-half year parole disqualifier on each count, concurrent to the sentence imposed on count two. Appropriate fines and penalties were imposed. We affirm defendant's conviction on counts three, five, six and seven, and reverse his conviction on counts two and four. We remand those two counts for a new trial.
Jury selection began on May 15, 2006 and concluded on May 31, 2006. During jury selection, a prospective juror stated in open court, "I'm a New York City taxi driver. I've been robbed a few times by blacks. So I'm definitely prejudiced. I couldn't render a fair judgment." After the judge excused that juror for cause, all three defendants moved to excuse the jurors who were seated in the jury box at the time as well as other prospective jurors who were seated in the courtroom. They urged the judge to begin anew with a fresh pool of jurors.
The judge denied defendants' request. He concluded that the statement made by the prospective juror was not sufficiently prejudicial to have infected the jury pool as a whole. The judge did, however, decide to individually question each prospective juror at sidebar about whether the statement would adversely impact that juror's capacity to serve fairly and impartially. Each juror responded that the statement would have no such effect. Consequently, the judge did not remove any of the jurors, start with a fresh pool or take any further remedial action.
Prior to the start of the second day of jury selection, a document was posted on a bulletin board outside the courtroom, which listed the trial and identified each defendant. Next to each defendant's name was "jail." On another occasion, a notice was left on a table in the jury room indicating a "request for transport" from the jail. The notice contained the names of the three defendants, their jail cell numbers, and other information indicating their status as inmates in the Morris County jail. The judge denied a defense request to strike the seated jurors and begin anew because of the possibility of prejudice. Instead, he asked them as a group whether anyone had read any notice about the case that was posted in the hallway or left on the table in the jury room. Because no juror answered in the affirmative, the judge took no further action.
We now summarize the most pertinent portions of the trial testimony. Officer Edward Uranyi of the Chatham police department testified that on June 30, 2005, at approximately 9:00 p.m., he was dispatched to respond to an auto theft in progress at a restaurant on Roosevelt Avenue in Chatham. When Uranyi, in a marked police vehicle, arrived at the parking lot of the restaurant, he observed a Lexus emerge from the back of the same parking lot. The Lexus stopped briefly, turned its headlights off, and then accelerated toward Uranyi's vehicle at a speed of approximately 30 miles per hour, striking the patrol vehicle on the front driver's side. After hitting two other parked vehicles, the Lexus stopped.
Due to the impact, the left side of Uranyi's patrol vehicle was crushed, pinning Uranyi in the vehicle and bruising his ribs and left shoulder. Because the Lexus was only three to four feet away from Uranyi's patrol vehicle after it stopped, Uranyi was able to see the driver's face. At trial, he identified co-defendant Coleman as the driver of the Lexus. Uranyi was not able to see the passenger well enough to identify him; however, the passenger was later identified as co-defendant Kenneth Daniels.
As Uranyi struggled to get out of his patrol vehicle, he shouted commands at Coleman to stop and freeze. When Uranyi was finally able to force open the door of his patrol vehicle, Coleman climbed out the window of the Lexus and attempted to flee. Uranyi was able to grab the back of Coleman's shirt, but after a brief struggle, Coleman broke free.
As Coleman and Daniels ran toward Roosevelt Avenue, an Infiniti operated by defendant drove past Uranyi's patrol vehicle and exited the parking lot onto Roosevelt Avenue in the direction of Coleman and Daniels. As defendant drove by in the Infiniti, the two dove head first into the vehicle through the passenger window. As the Infiniti sped off, Coleman and Daniels were partially hanging out of the vehicle.
The Infiniti then accelerated, traveling at a speed of thirty to thirty-five miles per hour toward Officer Larry Dillon's vehicle. Like Uranyi, Dillon arrived at the scene after hearing the police dispatch. Officer Dillon testified that he attempted to avoid a collision with the Infiniti, but the Infiniti struck his right front bumper. The impact caused Dillon to sustain a separated shoulder and torn ligaments. The Infiniti kept driving and disappeared into a parking lot behind some stores. Although Dillon was able to follow the Infiniti, Uranyi lost sight of both vehicles.
Uranyi then observed three individuals, including defendant, running from behind the stores toward Roosevelt Avenue. Uranyi pursued them on foot through several backyards, but was unable to apprehend any of the three. Police officers from a number of surrounding communities, many of whom testified, ultimately apprehended all defendants. Uranyi also assisted in the arrest of defendant, who resisted his arrest by failing to put his hands behind his back, struggling, fighting, and rolling around. Defendant was identified by Officer Dillon as the driver of the Infiniti.
The State also produced the testimony of the owners of the Lexus and Infiniti. Each testified that he had not given Coleman or defendant, respectively, permission to drive his vehicle.
The owner of the Infiniti, David Garramone, also testified that during the evening of June 28, 2005, two days before the events in question, he looked out the fifth-story window of his office building in Woodbridge and saw two vehicles parked next to his Infiniti coupe. He then observed an unknown individual get out of the back of his car and open the trunk. At that point, Garramone told a colleague to call police and ran down the stairs of the building. As he reached the ground floor, he saw all three of the cars, including his, driving away. Garramone then reported his vehicle stolen.
Two days later, Garramone received a phone call from the Woodbridge police department advising him that Chatham police had recovered his vehicle. When he retrieved his car, he observed considerable body damage, including a damaged lock on the driver's door.
Detective Corporal William Stitt of the Morris County Sheriff's Department found a locksmith tool kit in the passenger compartment of the Infiniti after the Infiniti was recovered. A Chatham police officer found a screwdriver, a tire wrench and a pair of black nylon gloves in the back seat. Further investigation that was conducted later that night revealed five other vehicles in the restaurant parking lot with damage to their door locks similar to that on the Infiniti.
After the State rested, all defendants moved for a judgment of acquittal. The judge denied each motion. None of the defendants testified. Only Daniels presented witnesses, both of whom testified about the point of impact of the police vehicles with the Lexus and Infiniti on the night in question. The State called no rebuttal witnesses.
During the charge conference, the judge denied all defendants' request that he refrain from charging second-degree robbery as a lesser included offense on the first-degree robbery count. The judge also specified during the charge conference the precise counts on which he would instruct the jury that each defendant was charged either as a principal or as an accomplice.
Before charging the jury, the judge advised defense counsel that in order to protect courtroom security, he intended to have all defendants in ankle shackles when the jury entered the courtroom with its verdict. After consulting with counsel about the appropriate method of hiding the ankle shackles from the jury, the judge decided to seat defendants at a "bench" in the courtroom when the jury verdict was read. Although the record does not describe the "bench" or its placement in the courtroom, apparently the ankle shackles could not be seen by the jurors if defendants remained seated. The State asserts in its brief, and defendant does not contest, this description of the seating arrangement in the courtroom:
[D]efendants never stood up. They were shackled at the ankle and their pants covered the shackles. They were not handcuffed at all and the shackles were invisible to the jury. Also, the three defendants and their three attorneys were all seated together, two tables away from the jury box. Besides the two tables, there were also two Assistant Prosecutors between the jury and the defendants and their attorneys.
The judge agreed to announce that everyone should remain seated when the jury entered the courtroom with its verdict so as not to draw undue attention to defendants, who would remain seated to avoid the awkwardness of rising while wearing ankle shackles. With that additional precaution, all three defendants agreed to this plan.
When the jury notified the judge it had reached a verdict, the jury was brought into the courtroom. With the jurors seated in the jury box, but before taking the verdict, the judge reviewed the verdict sheet and realized that the jury had not completed the entire verdict sheet and had consequently returned only a partial verdict. The judge sent the jury back to the jury room to continue its deliberations.
Defendants then asked the judge to poll the jury to determine whether any jurors had seen defendants in ankle shackles. The judge denied the request, reasoning that the shackles were not visible because defendants were seated. The jury subsequently returned with a complete verdict, finding defendant guilty of the charges we have described.
On appeal, defendant raises the following claims:
I. DEFENDANT'S RIGHT TO TRIAL BY A FAIR AND IMPARTIAL JURY WAS VIOLATED.
A. THE TRIAL COURT DID NOT ENSURE THAT THE JURY DID NOT LEARN OF DEFENDANT'S INCARCERATION AND APPARENT DANGEROUSNESS IN THE COURTROOM AND THAT THIS KNOWLEDGE DID NOT COLOR THEIR DELIBERATIONS.
B. REFUSING TO REMOVE THE SEATED JURORS AND START WITH A FRESH POOL AFTER JURORS HEARD THE "I WAS ROBBED BY BLACKS" COMMENT VIOLATED DEFENDANT'S FAIR TRIAL RIGHT.
II. DEFENDANT'S CONVICTION FOR ROBBERY STANDS ON INSUFFICIENT EVIDENCE AND IMPROPER JURY INSTRUCTIONS. (PARTIALLY RAISED BELOW)
III. EVEN IF THE STATE'S PROOFS COULD HAVE SUSTAINED A ROBBERY CONVICTION UNDER ONE OF THE SCENARIOS PRESENTED ON THE VERDICT SHEET, OR UNDER A THIRD SCENARIO COMBINING THE ACTS OF THEFT OF THE LEXUS AND DRIVING THE INFINITI AT OFFICER DILLON, THE JURY WAS NOT CHARGED THAT IT HAD TO UNANIMOUSLY AGREE ON WHAT ACTS THE DEFENDANT COMMITTED IN ORDER TO FIND DEFENDANT GUILTY OF ROBBERY. THIS VIOLATED DEFENDANT'S RIGHT TO A UNANIMOUS JURY VERDICT. (PLAIN ERROR)
IV. THE JURY CHARGES FOR RECEIVING STOLEN PROPERTY AND AGGRAVATED ASSAULT ON OFFICER URANYI WERE INCOMPLETE AND INSUFFICIENT.
V. DEFENDANT'S SENTENCE IS EXCESSIVE.
In Point I, defendant argues that the cumulative effect of two trial court errors violated his right to a fair and impartial jury: (1) "the court did not take the necessary steps to ensure that the jury was not exposed to the fact that the defendants were incarcerated and considered a security threat in the courtroom"; and (2) "the court did not ensure that at least 8 jury members were not prejudiced by the racist comment made by the prospective juror during voir dire."
Both the State and federal constitutions guarantee the right to trial by an impartial jury. State v. Fortin, 178 N.J. 540, 575 (2004). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Tyler, 176 N.J. 171, 181 (2003).
A. Ensuring that jurors did not learn of defendant's incarceration
We turn first to defendant's claim that the judge failed to take adequate steps to ensure that the jury was not prejudiced against him because it may have known he was incarcerated during trial. Defendant argues that the jury may have learned of defendant's incarceration by: (1) the notice on the bulletin board in the hallway that stated defendant was in jail; (2) the transportation listing left in the jury room that said defendant was in jail; and (3) "the possible viewing of defendants wearing foot shackles surrounded by extra security personnel in the courtroom." According to defendant, the "court should have'erred on the side of caution'" and "started with a fresh jury panel" after the first two errors, and for the third error, it should have "at least questioned the jurors about the possible viewing of defendants in foot shackles."
The jury's knowledge that a defendant is incarcerated has the capacity to cause "an erosion of the presumption of innocence." State v. Gertrude, 309 N.J. Super. 354, 357 (App. Div. 1998)(quoting State v. Carrion-Collazo, 221 N.J. Super. 103, 111 (App. Div. 1987), certif. denied, 110 N.J. 171 (1988)).
Here, the court specifically asked the impaneled jurors whether they had read "any notice about this case that was in the hallway" on the first day of jury selection. The jurors shook their heads in the negative, indicating that they did not see the notice. The court also specifically asked the impaneled jurors whether any one of them happened "to notice a piece of paper that was laying on the desk" in the jury room, and if so, to raise his or her hand. No one did so.
"Trial courts conducting voir dire are best able to evaluate the credibility and sincerity of a prospective juror in a way that the record will never allow." State v. Loftin, 191 N.J. 172, 211 (2007)(quoting State v. Fortin, 178 N.J. 540, 629 (2004)). "Ordinarily, a juror's declaration of impartiality will be accorded great weight and a judge's assessment of a juror's credibility in responding to questions will be respected." State v. Carroll, 256 N.J. Super. 575, 599 (App. Div.), certif. denied, 130 N.J. 18 (1992). Here, nothing in the record demonstrates that the judge's evaluation of the jurors' impartiality is not entitled to that deference.
There is nothing in the record that would suggest that any of the jurors were dishonest in their response to the judge. "[W]here there is doubt as to the prospective juror's competency or impartiality[,] he should be permitted to stand aside so that a clearly qualified juror may take his place." State v. Jackson, 43 N.J. 148, 160 (1964). Here, however, nothing in the record suggests the jurors saw the notice or were prejudiced against defendant. Consequently, we reject ...