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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Kenneth Daniels 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 into count two and imposed a sentence of thirteen years imprisonment subject to the eighty-five percent parole disqualifier required by N.J.S.A. 2C:43-7.2. On counts five, six and seven, the judge imposed concurrent four-year terms of imprisonment, concurrent to the sentence imposed on count two. On counts five and six, the court also imposed a two-year term of parole ineligibility. Appropriate fines and penalties were imposed.
We reverse defendant's convictions on counts two, five and six and remand for entry of a judgment of acquittal on those counts. We reverse and remand for a new trial on counts three, four and seven.
Jury selection began on May 15, 2006 and concluded on May 31, 2006. On May 31, 2006, a sheriff's officer advised the judge that 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. On a different day during 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."
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 any of them 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. The judge asked the same question on the first day of trial, June 1, 2006, and received the same negative response.
We now summarize the most pertinent facts. Officer Edward Uranyi of the Chatham police department testified that on June 30, 2005, at approximately 9:00 p.m., he was dispatched 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 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 defendant Kenneth Daniels.
As Uranyi struggled to get out of his patrol vehicle, he shouted commands at defendant and Coleman to stop and freeze. When Uranyi was finally able to force open the door of his patrol vehicle, Coleman climbed out 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 and was able to escape Uranyi's grasp. Defendant and Coleman then ran toward Roosevelt Avenue.
As defendant and Coleman ran toward Roosevelt Avenue, an Infiniti operated by co-defendant Jones drove past Uranyi's patrol vehicle and exited the parking lot onto Roosevelt Avenue in the direction of defendant and Coleman. As Jones drove by in the Infiniti, the two dove head first into the vehicle through the passenger window. As the Infiniti sped off, defendant 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 in response to 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 businesses. 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 businesses 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 three defendants. Jones 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 Jones, 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 interior of the Infiniti after it was recovered on the night in question. A Chatham police officer found a screwdriver, a tire wrench and a pair of black nylon gloves in the back seat. Further investigation later that night revealed five other vehicles in the restaurant parking lot with damage to their door locks.
After the State rested, all three defendants moved for a judgment of acquittal. The judge denied each motion. None of the defendants testified. Only defendant presented witnesses, both of whom testified about the point of impact of the police vehicles with the Lexus and Infiniti. 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. Consequently, the judge instructed the jury to determine first whether defendant was guilty as an accomplice on the charge of first-degree robbery, and if they answered "no," to then consider whether defendant was guilty as an accomplice of the lesser included offense of second-degree robbery. 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.
On all counts charged in the indictment, the judge instructed the jury to render a verdict on whether defendant was guilty as an accomplice of Coleman and Jones. With the exception of the aggravated assault counts, the judge also instructed the jury that if it acquitted defendant of any of the original charges, it should proceed to determine whether defendant was guilty of the specified lesser included offense. Specifically, he instructed the jury that if it found defendant not guilty of first-degree robbery as an accomplice (count two), it should consider whether he was guilty of second-degree robbery as an accomplice. He also instructed the jury that if it found defendant not guilty as an accomplice of either theft (count three) or receiving stolen property (count four), it should proceed to decide if defendant was guilty as a principal of the lesser included offense of unlawful taking of a means of conveyance as a passenger on those two counts. He also instructed the jury that if it found defendant not guilty as a principal of resisting arrest by physical violence (count seven), it should determine whether he was guilty of the lesser included offense of resisting arrest by flight as a principal.
Before the judge charged the jury, he advised defense counsel that, in order to protect courtroom security, he intended to place all three 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 arrangements 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 MOTION FOR A JUDGMENT OF ACQUITTAL OR, IN THE ALTERNATIVE, FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED.
II. THE TRIAL COURT'S DEFICIENT ACCOMPLICE LIABILITY CHARGE CONSTITUTES PLAIN ERROR. (Not Raised Below)
III. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED TO VOIR DIRE THE JURORS AS TO WHETHER THEY ...