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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Kerman Coleman 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 nineteen 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 five-year terms of imprisonment, concurrent to the sentence imposed on count two. Appropriate fines and penalties were imposed. We affirm.
Jury selection began on May 15, 2006 and concluded on May 31, 2006. During jury selection on May 16, 2006, 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 neither removed any of the jurors, nor started with a fresh pool, nor took any further remedial 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 that was 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 defendant 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 defendant to stop and freeze. When Uranyi was finally able to force open the door of his patrol vehicle, defendant climbed out the window of the Lexus and attempted to flee. Uranyi was able to grab the back of defendant's shirt, but after a brief struggle, defendant broke free.
As defendant and Daniels 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 Daniels. 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 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 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 defendant 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 the Infiniti was recovered on the night in question. A Chatham police officer who was assisting him found a screwdriver, a tire wrench and a pair of black nylon gloves in the back seat. Further investigation 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 three 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 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, ...