July 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL KIRKLAND, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-12-2232.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2009
Before Judges R. B. Coleman and Simonelli.
Following the denial of his motion for a judgment of acquittal, a jury convicted defendant Michael Kirkland of third- degree shoplifting, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:20-11b(1) (count one); and second-degree employing a juvenile in the commission of a crime (shoplifting), N.J.S.A. 2C:24-9 (count two). The trial judge sentenced defendant to an eight-year term of imprisonment consecutive to a sentence he was then serving on an unrelated offense. The judge also imposed the appropriate assessments and penalty.
On appeal, defendant raises the following contentions:
THE TRIAL COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S CHALLENGE TO THE LACK OF RANDOMNESS IN THE COMPOSITION OF TWO JURY PANELS SUMMONED IN THIS CASE WHICH DID NOT CONTAIN ONE AFRICAN AMERICAN IN A COUNTY WITH A SUBSTANTIAL AFRICAN AMERICAN POPULATION.
THE TRIAL COURT ERRED IN FAILING TO DISMISS THE STATE'S CASE FOR FAILURE TO PRESENT A PRIMA FACIE CASE.
IMPOSITION OF THE MAXIMUM TERM WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.
In his pro se supplemental brief, defendant raises the following contentions:
First point raise, is the tape of recording of me entering, and time in store. Fact is, if I was viewed by her on camera, according to her testimony, and also in her testimony she states, the equipment used is multiplex-multistream video, which is recorded as it view. See Part 1, Page 11, 8-15, 16-17, 18-20. Also states viewed bag and seen shorts in bag from monitor view from the live stream video, which records as viewed. Supporting facts see Page 14, 18-25. Page 15, 2-9. Page 17, 21-24. Pg. 25, 11-12. Point and issue raised, if the tape that was submitted to support testimony. Then why was the tape edited and pieces of the recorded tape chopped out. When all pieces/parts that would of showed the criminal acts [alleged] to be clear. Instead the most important parts to prove the state's case is missing, instead of these part of tape, the loss prevention employee testimony injected, in place of missing part of video. In which that testimony has continuous [contradiction]. The state did not prove their case. We should have been able to view the bag, we should have been able to see the shorts in bag as he pass back through the [jewelry] dept. The same as the loss prevention watch from monitor, and stated to have seen from, we should have to, according to the information given in testimony of loss prevention employee. "These are multi media, multiplex, live stream video" meaning as the camera view, they records. Fact is, with the recordings of such, it would be so much clear of a crime taking place. That without it, it is not clear and without a [doubt], that I am guilty of the [alleged] crime.
This [cannot] be ruled as [frivolous] errors. This was a strong point raised, and a strong piece of the state's case, that was used to prove the state's case, and a major part to be missing, failed the four prongs of proving beyond a reasonable doubt, but instead was used as misleading, presumptions, hearsay, and theory's.
Second point raised, [i]s the state never prove their case. Never proved or shown me enter or leaving with the other girls, nor prove any influence or control I had over the girls. According to testimony it was stated that I was a passenger in the same vehicle as the girls, in which two other adults were also within. According to testimony, the other adult was inside the store as well, and also engage in conversation, and may have entered with the girls, but at no time was she recorded, yet was present inside the vehicle where goods confiscated from, but was never considered of [alleged] charge. As well as any other adult, when it is clear that the other adults had more control of the minors, even to the extent of a legal guardian who was present. The state would not only have to prove, I had control over minors, but also I had control or power over the other adults, as well as the vehicle. In which the state failed to do, and [cannot] charge me for the goods confiscated from the vehicle in which two other adults present. The vehicle did not belong to me, nor did I possess control of. Therefore the items confiscated from vehicle can not be transferred to me to answer for, and support a felony charge to be lodge against me. Again the state failed to prove their case.
With the records of proceedings supporting the facts raised within the brief and the supplement brief, should support the reversal, along with Criminal procedure rules, and fair trial under the State and U.S. Constitutional laws.
We reject these contentions and affirm.
We summarize the facts from the record. At approximately 7:30 p.m. on June 5, 2006, defendant, along with Melissa Mann, Tonya Kirkland, M.K., and K.A., drove to the Kohl's store in Paramus.*fn1 When they arrived, Tonya remained in the car while the others went into the store. Once inside the store, defendant went his own way.
According to Katie Sabino (Sabino), the store's Loss Prevention Officer, while conducting a routine surveillance using the store's closed circuit television, she saw a male, later identified as defendant, enter the store, pick up an empty shopping cart, and push the cart "rather quickly" through the jewelry department and into the men's department. She then saw defendant select some Sonoma shorts from a clothing rack, put them into a plastic bag, and put the bag into the cart. Defendant then took the elevator to the second floor and went to the customer service line, where he spoke to two young females, later identified as K.A. and M.K.*fn2 Defendant stayed in the line, and the young women went in another direction. Sabino then called the customer service desk and instructed the clerk to closely examine any receipt defendant produced.
Sabino then saw defendant approach a register, produce a cash receipt and attempt to return for cash the Somona shorts he had placed in the bag. The clerk scanned the receipt and discovered that the UPCs, or bar codes, did not match the UPCs on the shorts. The clerk advised defendant that because of this discrepancy, she could not return the shorts for cash but could give him a merchandise credit, which defendant refused. The clerk then returned the shorts to defendant, and he placed them back into the bag.
Sabino continued that defendant then left the customer service area and met up with K.A. and M.K., who were still in the store. While the three were speaking to each other, the young women showed defendant merchandise they had placed into their shopping cart. Defendant took the receipt he had given to the clerk and placed it inside the young women's shopping cart. The three then went downstairs together, at which time they "split up." Defendant went to the men's department where he selected a black pair and a tan pair of Dickey shorts and one pair of U.S. Polo shorts. After selecting the shorts, defendant, while pushing his cart, looked to see if anyone was watching him. Defendant then went to the back of the young men's department, placed the shorts into the bag, and placed the bag into the cart. Defendant then exited the store without paying for the merchandise.
Sabino then discontinued her surveillance and approached defendant outside of the store. After she identified herself as a Loss Prevention Officer and asked defendant to return to the store, he pushed the cart at her and ran across the parking lot to Route 4 westbound. Sabino called the police and gave them defendant's description and the direction in which he ran. Sabino returned to the store with the cart and bag. Sabino's examination of the bag revealed the five pairs of shorts she saw defendant place into it but no receipt.
Sabino then returned to the store to look for K.A. and M.K. She saw them in the juniors' department with a cart filled with merchandise, which they pushed into the dressing room. After the young women exited the dressing room, they proceeded to the entrance, where Sabino saw a Kohl's bag filled with merchandise in the cart. The young women exited the store with the bag and without paying for the merchandise.
When Sabino exited the store to apprehend the young women, she saw them place the bag in the trunk of a Mitsubishi Montero. A police officer who had arrived at the scene recovered the bag from the vehicle.
K.A. testified at trial that when defendant spoke with her and M.K. at customer service line, he gave them an empty large Kohl's bag and asked them to pick out "baby boy clothing." Although defendant did not specifically instruct K.A. what to do with the bag, she understood that she was to put the clothing in it, which she did. She had no intention of paying for the items, and defendant gave her no money to do so.
K.A. continued that she showed defendant the clothing and, thereafter, she and M.K. went into the dressing room and put it in the bag. They then left the dressing room and exited the store without paying for the merchandise in the bag.
Sabino later examined all the merchandise defendant, K.A., and M.K. had taken from the store. After taking the sales and discounts in effect on June 5, 2006 into account, she calculated their final cost at $1,000.89 ($890.89 for the clothing K.A. and M.K. shoplifted, and $110 for the clothing defendant shoplifted). The shoplifting incident was recorded on videotape, which the jury viewed.
Defendant first contends that the trial judge erred in denying his challenge to the jury's composition. He argues that the lack of any African-Americans on the two panels demonstrated a possibility of taint in the jury's composition. During jury selection, defense counsel advised the judge that because there were no African-Americans on the two panels, defendant would not proceed with a trial before an "all-white jury." Noting that the panels consisted of other minorities and a wide array of ethnicities, the judge concluded that there being no African- Americans on the panels was insufficient to sustain a challenge to the selection process.
Defendant argues that under the Sixth Amendment,*fn3 jury pools must represent a "fair cross-section" of the community and must be free from any discrimination in their composition. Defendant admits that he is not entitled to a jury that includes African-Americans. However, he submits that Bergen County has a significant African-American population, and the fact that no African-Americans were on the panels in this case "creates a suspicion of taint," which required the judge to either dismiss the panels, or to conduct a hearing to determine if there had been discrimination in the selection process. We disagree.
"[A] defendant has no right to a jury that includes members of his own race." State v. Ramseur, 106 N.J. 123, 216 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). The Equal Protection Clause*fn4 guarantees that jury selection is free from any "taint of discriminatory purpose." The Sixth Amendment guarantees that jurors are selected from pools that "represent a 'fair cross section' of the community[.]" Id. at 215.
To prove either an equal-protection or a fair-cross-section claim, defendant must (1) identify a constitutionally-cognizable group, that is, a group capable of being singled out for discriminatory treatment; (2) prove substantial under-representation over a significant period of time; and (3) show discriminatory purpose either by the strength of his statistical showing or by showing the use of racially non-neutral selection procedures to support the inference of discrimination raised by substantial under-representation. [State v. Dixon, 125 N.J. 223, 232 (1991) (citing Ramseur, supra, 106 N.J. at 215-16)].
Defendant satisfies the first prong of this test because there is no question that African-Americans are a group capable of being singled out for discriminatory treatment. However, defendant does not satisfy the second or third prongs. He has provided no evidence of substantial under-representation over a significant period of time, and no evidence of discriminatory purpose. Defendant does not even discuss the jury selection procedure utilized in Bergen County, let alone offer proof that it is racially non-neutral. There is no evidence indicating the panels were not randomly selected or that African-Americans were excluded.
Defendant next contends that the judge erred in denying his motion for judgment of acquittal. He argues that the State failed to establish a prima facie case, especially with regard to count two, because there was no proof that he entered Kohl's with K.A. and M.K., that he acted in concert with them, or that he controlled them. Defendant also argues that only K.A.'s testimony supports count two, and that her testimony lacks credibility because she pled guilty to shoplifting.
Giving the State all favorable inferences which could be reasonably drawn from Sabino's and K.A.'s testimony, the judge found that a reasonable jury could find defendant guilty of the charges beyond a reasonable doubt. The judge continued that the jury would determine K.A.'s credibility and whether her testimony indicated some type of agreement with defendant to shoplift.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Kittrel, 145 N.J. 112, 130 (1996); State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.) (citing State v. Moffa, 42 N.J. 258, 263 (1964)), certif. denied, 144 N.J. 587 (1996); State v. Tarver, 272 N.J. Super. 414, 425 (App. Div. 1994). We must determine [w]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony, as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), certif. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed. 2d 396 (1962)).]
See also State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 81 (2002); R. 3:18-1.
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Papasavvas, 170 N.J. 462, 521 (2002) (internal quotations omitted). "If the evidence satisfies that standard, the motion must be denied." Spivey, supra, 179 N.J. at 236.
Defendant was charged with third-degree shoplifting. An individual is guilty of shoplifting if he or she: take[s] possession of, carr[ies] away, transfer[s] or cause[s] to be carried away or transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of possession, use or benefit of such merchandise or converting the same to the use of such person without paying to the merchant the full retail value thereof.
Defendant was also charged with second-degree employing a juvenile in commission of a crime. An individual is guilty of employing a juvenile in commission of a crime if he or she is at least eighteen years of age, and "knowingly uses, solicits, directs, hires, employs or conspires with a person who is in fact 17 years of age or younger to commit a criminal offense[.]" N.J.S.A. 2C:24-9a.
Having considered the trial proofs in the entirety, we are satisfied that the trial judge properly denied defendant's motion. Giving the State the benefit of all its favorable testimony and the inferences to be drawn therefrom, a reasonable jury could find defendant guilty of the charges beyond a reasonable doubt.
We now address defendant's sentence. Defendant contends that the judge abused his discretion in sentencing him to eight years instead of seven-and-one-half years. This contention lacks merit.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215.
Here, the applicable statutory range of imprisonment is five to ten years for a second-degree crime. The judge sentenced defendant to an eight-year term of imprisonment consecutive to a sentence he was then serving on an unrelated charge.*fn5 In imposing the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1a(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), and N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law). The judge also found, but gave limited weight to, mitigating factor N.J.S.A. 2C:44-1b(11) (the imprisonment of the defendant would entail excessive hardship to himself or his dependents).
Based upon our careful review of the record, we discern no abuse of discretion in defendant's sentence. Defendant has an extensive criminal history, including several shoplifting convictions, and convictions for criminal tampering, criminal trespass, burglary, intent to defraud, petit larceny, and criminal possession of stolen property. The judge's findings are amply supported by the evidence, and the sentence imposed is within the range for second-degree crimes.