July 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAKIM L. LOVE AND I-BORN HENDERSON, A/K/A IBORN HENDERSON, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-07-1613 in A-0610-08T2 and 07-07-1631 in A-0925-08T4.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2012 --
Before Judges Payne, Reisner and Simonelli.
Following a jury trial, defendants Rakim L. Love and I-Born Henderson were both convicted of first degree robbery, N.J.S.A. 2C:15-1; second degree conspiracy, N.J.S.A. 2C:5-2 and 2C:15-1; and third degree aggravated assault, N.J.S.A. 2C:12-1b(1). Love was also convicted of first degree use of a juvenile to commit a crime, N.J.S.A. 2C:24-9. After merger, Love was sentenced to an aggregate prison term of twelve years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Henderson was also sentenced to a twelve-year term subject to NERA. In these appeals, which we have consolidated for purposes of this opinion, each defendant challenges his conviction and sentence. We affirm the convictions and sentences as to both defendants.
This was the most pertinent trial evidence. On December 1, 2006, Henderson was seventeen years old, approximately three months shy of his eighteenth birthday. Love, Henderson's cousin, had turned eighteen approximately one month earlier.
On that date, Christopher McCord went to Al's Deli in Asbury Park to purchase cigarettes and juice. According to McCord's testimony, he had about sixteen dollars in his pocket. After making his purchase, McCord went outside and started unlocking his bike. While he was doing so, defendants approached him from the back and side.
Defendants began pushing him and asking "What do you want?" and "What are you here for?" McCord responded "nothing" and told them he was just in the neighborhood to buy cigarettes. He kept his head down, telling defendants that he was unlocking his bike and trying to leave. McCord testified that Love ordered him to hand over his money, but McCord told Love that he had no money.
At that point, Love took out a gun and said, "now you're going to give me your money." McCord initially thought the gun was a toy because "it didn't look real. It was all scratched up and everything." Although Love pointed the gun at McCord's chest and head, McCord "didn't think [he] was getting shot" although he expected to get beaten up. When McCord again denied having money, Henderson said he had seen him counting his money inside the store, and tried to reach in McCord's pocket. McCord pushed Henderson's hand away, and Love then hit McCord on the back of his head with the gun. Since the gun "had some weight to it," at that point McCord "assumed it was real."
However, he continued to believe he was not going to be shot, explaining:
So I figured, you know, if they were going to shoot me they'd have done it by then and just took the money and ran.
So I figured, you know, I was just going to get beat up. You know, they're going to try to get in my pockets. And hopefully, you know, because the cops patrol that area, I figured, you know, somebody's going to show up eventually, you know. All I had to do is, you know, protect myself and you know, cover up a little bit and I'd be all right.
McCord also believed that defendants would not want to attract police attention with gunfire.*fn1
Defendants continued to wave the gun in McCord's face and demand his money. They "started wrestling [him] to the ground and digging in [his] pockets." They hit him with the gun, as well as with their fists and feet. McCord "kept [his] head down, [and] tried to block what [he] could." Most of the blows he suffered were to his back and ribs, although he was also hit in the head.
McCord managed to escape inside the deli, but Love followed him. Henderson stayed outside and smashed McCord's bike on the ground. While Love stared at McCord, Mohamed Abdoul-Maoula, the deli cashier, asked McCord if there was a problem. Not wanting any additional trouble and believing the altercation had ended, McCord responded that everything was okay, and he left the store. He testified that he did not ask Abdoul-Maoula to call 9-1-1 because he did not want to give defendants a reason to shoot him, and he also was concerned about Abdoul-Maoula's immediate safety and possible later reprisals against his business. At trial, Abdoul-Maoula denied that anything happened in the store that day, and further denied seeing anyone with a gun.
McCord testified that he left the store and walked away, thinking he could reach a nearby location where he knew a police officer usually parked. However, defendants followed and attacked McCord again in front of a parking garage. One of the defendants said "[f]uck it, just shoot him." But instead, they pulled McCord to the ground, dug in his pockets, and kicked, hit, and stomped him. They pulled McCord's pants halfway down to his knees while trying to access his pockets. McCord did not see the gun during the second attack. He recalled that during the second attack, a police car drove up and an undercover officer emerged from the vehicle and rescued him. As soon as he realized he was safe, the stress of the attack caught up with him, and McCord began vomiting at the scene and felt "dazed."
According to her trial testimony, Adriana Hunt witnessed the initial altercation as she passed by the deli, and she called 9-1-1. She testified that she saw two black males, one wearing a red hooded sweatshirt and one wearing a black hooded sweatshirt, pull a small, black gun on a white male and "proceed to beat him up." Hunt identified the assailant wearing the black sweatshirt as the one holding the gun. She explained that the man with the gun put his arm around McCord and pointed the gun at McCord's chest. McCord did not defend himself.
Hunt then saw McCord enter the deli while one of the black men threw McCord's bike on the ground. When McCord left the deli, Hunt continued to watch all three men walk up the street. She testified that the two black men again started punching and kicking McCord while he did nothing to defend himself. Eventually, an unmarked police car arrived, and the assault stopped.
Detective Scott Cholewa of the Monmouth County Prosecutor's office was traveling through Asbury Park on two unrelated cases when he saw defendants and McCord on the side of the road. McCord was half-kneeling on the sidewalk, covering his head, while defendants punched and kicked him. Cholewa sounded his siren, got out of the car, and identified himself.
McCord got up and walked toward Cholewa, while Love and Henderson walked away. Cholewa grabbed Henderson and McCord to search them. He described McCord as "a little bit maybe dazed," and Henderson as "calm." Henderson told Cholewa that he was trying to get money McCord had taken from him. Love watched from about thirty-five feet away. Cholewa saw about five Asbury Park police cars approaching behind Love, but he did not see Love holding a weapon.
Detective Darius Davis, who was a patrolman at the time of the arrest, testified that he was the first Asbury Park Police Department officer to arrive on the scene. He witnessed defendants standing over McCord yelling at him as he crouched on his knees on the ground. Davis, as well as another officer, then-patrolman Alastair Sweeney, testified that Love, who was holding a gun, started to walk away. Davis got out of his car, drew his gun, and ordered Love to "put the gun down" and "get on the ground." Love walked to a grassy area, dropped the gun, continued walking, and only got on the ground when more officers arrived. Henderson got on the ground almost immediately.
Davis took Love into custody. Another officer, Lorenzo Pettway, secured Love's gun, which he believed was a real firearm. The gun "was unloaded. There was no round in the chamber, and there was no magazine in the gun." Officers searched the area and did not find a magazine. As Sweeney placed Love in the back of his car, Love nodded toward a chain link fence and said, "I just picked the gun up from over there."
At trial, the State and defendants stipulated that the gun did not qualify as a firearm under New Jersey law because it was a "starter pistol" and had not been "altered to fire fixed ammunition and/or projectiles."
According to the police witnesses, when they arrived, McCord's "nerves were shot" and he "threw up." Although he told them he did not get a good look at defendants, he identified the man with the gun as a black male with "kind of light skin" wearing a dark jacket. He confirmed to the police that the two men who were arrested were his attackers.
McCord also declined first aid, despite having a bloody cut on his head from where he was struck with the gun. Sweeney described McCord as "seem[ing] to be in shock" and "a bit shaken up." McCord later explained that at the time he made his statement to police, he only was aware of the cut on the back of his head, but the pain of his other injuries set in later. McCord believed that he "probably should have" sought treatment since he had a problem with [his] back every time [he] sat back. It felt like [he] had a broken rib or something. [He'd] get a sharp pain and it would take [his] breath away. . . . [T]he next day [he] figured . . . it's too late so [he] didn't bother going.
Defendant Love told a considerably different story than McCord. According to Love, who testified at trial, McCord was in the deli when Love arrived there with his cousin, Henderson. Henderson stayed in the store while Love waited outside. After about thirty seconds, McCord exited and jogged away. Henderson came outside and told Love that "this guy just took my money off the counter." In Love's words,
I walked up to McCord and pointed at him. I said who him. [Henderson] said yes. So I asked McCord, I said give me the money back.
He said get away from me nigger. I said, excuse me, can you give me the money back, and he pushed me. And I pushed him back.
We grabbed each other and I threw him off and he hit his head on the building. I don't know if it was on the door or the glass, but I know he hit his head.
Then he, I guess he got up. I don't want to guess, but he got up, walked across the street. . . . McCord was calling us profanity names and things like that.
McCord continued to call them "niggers or whatever," while Henderson and Love walked away. Love claimed he then heard Henderson say "get him off me," and turned to find Henderson and McCord "tussling." As he went to help Henderson, Cholewa arrived. Love then walked away.
Love testified that he walked about thirty-five feet from Henderson and McCord, to a gate in a fence by the Thurgood Marshall School. Once there, he "crouched down and picked up" the gun, which he claimed was under the gate. Love asserted that a "younger kid" had told him there was a gun in that location, so he was checking to see if it was there. If it was, he hoped to sell it. He claimed that he did not intend to use the gun against McCord, but that he meant to go home with it. Just as he picked up the gun, the police arrived and ordered him to drop it and get on the ground, which he immediately did.
Love admitted that his trial testimony differed from his statement following the incident, in which he claimed that he had approached McCord, started fighting, "slammed" him on the ground, and then walked away. In his statement, he did not mention hearing McCord engaging in any name-calling, or his asking McCord to return Henderson's money, nor did he claim McCord attacked Henderson.
Vacera Bowles also testified on defendants' behalf, asserting that she was in Al's Deli with her mother and friend when she saw Love outside "fighting and basically arguing" with a white man. Bowles claimed that "the white guy was on the ground and punching and [Love] was just punching back." When the two men entered the store, Bowles heard Abdoul-Maoula tell them "to get out of the store." On cross-examination, however, she stated that McCord asked Abdoul-Maoula to call the police, and Abdoul-Maoula told Love to "leave [McCord] alone."
Bowles claimed that she left the store with Love and McCord, and began talking to Love. McCord had walked away but started arguing with Love again. Bowles claimed to hear McCord call Love and Henderson "niggers" and "talk about [Love's] family and stuff." She followed defendants and McCord down the street, where she claimed that "[t]hey just pushed each other." They gave "just a couple of pushes and then the cops came. Like they came so quick, nothing was happening." Bowles did not see a gun, and alleged that Henderson only watched the argument without getting involved.
On cross-examination, Bowles admitted that she had dated Love for two years and remained "good friends with him." Following his arrest, Love wrote to her and told her he "needed her," which Bowles thought meant that he "needed [her] help emotionally" and needed her "to be there for him."
Based on this evidence the jury found both defendants guilty of second-degree robbery, as well as first-degree robbery. In answering a series of questions on the verdict sheet concerning the basis for the first-degree robbery conviction, the jury found that defendants were armed with a deadly weapon in the form of an imitation firearm and threatened the immediate use of a deadly weapon which McCord reasonably believed was a firearm. They also found that defendants committed third-degree aggravated assault by purposely or knowingly causing bodily injury to McCord with a deadly weapon. They found both defendants guilty of conspiracy to commit first-degree robbery and found Love guilty of conspiring with a juvenile to commit first-degree robbery. The jury did not reach a unanimous decision on the other questions involving aggravated assault as a basis for first-degree robbery.*fn2
On this appeal, defendant Henderson contends that jury selection was tainted by a racially-biased peremptory challenge; that the prosecutor made improper comments in summation; that the first-degree robbery conviction was against the weight of the evidence; and the sentence was excessive. He presents the following points for our consideration:
POINT I: SINCE THE PROSECUTION EXERCISED A PEREMPTORY CHALLENGE ON CONSTITUTIONALLY-IMPERMISSIBLE GROUNDS BY EXCUSING THE ONLY AFRICAN-AMERICAN JUROR FROM THE JURY, THE TRIAL COURT ERRED BY FAILING TO DISCHARGE THE ENTIRE VENIRE AND BEGINNING THE JURY SELECTION PROCESS ANEW.
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ON THE BASIS THAT THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.
POINT III: THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF FIRST DEGREE ROBBERY WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below.)
POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Having reviewed the record we find no basis to disturb Henderson's conviction, and we find no error in his sentence.
We begin by addressing the jury selection issue. Toward the end of jury selection, the judge questioned juror number ten who, at that point, would have been the only African-American on the jury. This juror revealed that about eighteen years earlier, his son had been convicted of robbery. He explained that his son was with a person, and it was his car. He gave a friend a ride and they arrested him . . The person that he gave a ride to, he said that he wanted to roll a gas station.
So, my son was hauling this guy around as a favor and he got pulled over with him.
The juror indicated that his son remained in jail pre-trial and was convicted at trial, but the conviction was overturned on appeal. The juror insisted that he and his family thought the son was "treated fairly," because "[h]e was with the wrong guy" and based on the "evidence or the situation at the time" it was understandable that the son was convicted. The juror also revealed that his "wife's sister was murdered" about seventeen years ago. The killer was convicted, and the juror confirmed that he believed the matter was "handled appropriately."
The juror stated that he could be "a fair juror" and that his two experiences "would make me a better juror because I can see whereby both parties have been benefit[ted] from the judicial system." When asked by the prosecutor if he believed his son "was innocent and wrongly convicted just for being in the wrong place at the wrong time," the juror answered
Based on the evidence that was available, what was brought out, yes. I felt my son, you know, I stand corrected. I understood why my son was arrested. Therefore, since he was arrested, he had his day in court.
As a result of having his day in court, our judicial system says if you are convicted, you have a right to appeal. The system on an appeal exonerated my son. So therefore, it's a system that has some flaws, but they can be corrected. I believe in the system.
When the prosecutor used a peremptory challenge to excuse juror number ten, Henderson's attorney raised an objection pursuant to State v. Gilmore, 103 N.J. 508 (1986). The judge entertained the objection, noting that "[t]here may be another person of color [on the jury]. But this is the only African American that is on the panel." The prosecutor offered the following explanation for the challenge: The reasons we are objecting (a) he has already said his son was wrongly convicted, that he was just in the wrong place at the wrong time. The fact that this case, based on the victim's testimony, based on Mr. Love's statement that that wouldn't come in. It is very possible that Mr. Henderson would be viewed as being in the wrong place at the wrong time.
Based on . . . concern that the legal [proceedings] would take a toll on him.
Because he did say that yes, he thought the system worked. And he had experienced this on both sides and (inaudible) it's too much personal involvement in the judicial system that he would not be able to be fair and the potential is there that at some point this could get very personal for him and would interfere with his ability to comply with your orders.
The judge rejected the defense motion, finding that the prosecutor had established a legitimate, non-discriminatory reason for excusing the juror.*fn3 We owe "substantial deference" to the trial judge's decision on this issue. State v. Clark, 324 N.J. Super. 558, 568-69 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Based on our own review of the record, we find no basis to sustain a Gilmore challenge, and we find no abuse of the judge's discretion in denying the defense application.
It is well established that a prosecutor may not deprive a defendant of the right "to trial by an impartial jury" by excluding jurors based on race. Gilmore, supra, 103 N.J. at 516-17. As the Court recently held in State v. Osorio, 199 N.J. 486, 492-93 (2009), a claim of bias in jury selection is evaluated using a three-step process:
Step one requires that, as a threshold matter, the party contesting the exercise of a peremptory challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity. That burden is slight, as the challenger need only tender sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden then shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. In gauging whether the party exercising the peremptory challenge has acted constitutionally, the trial court must ascertain whether that party has presented a reasoned, neutral basis for the challenge or if the explanations tendered are pretext.
Once that analysis is completed, the third step is triggered, requiring that the trial court weigh the proofs adduced in step one against those presented in step two and determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias.
Assuming for the sake of argument that the defense satisfied the first prong based on the juror's race and his repeated assertion that he could be impartial, the prosecutor clearly satisfied the second prong of the test. Her expressed reasons for excusing this juror were entirely rational and not facially pretextual. The juror believed that his son had been wrongly convicted of robbery. His sister-in-law had been murdered. This case involved a robbery, with accompanying violence. There was a reasonable basis to believe either that this juror might be too emotionally affected by the evidence to remain objective, or that he might consciously or unconsciously sympathize with the defendants, at least one of whom planned to raise a claim that, like this juror's son, he was in the wrong place at the wrong time. The defense produced no evidence or even an explanation warranting a finding that the prosecutor's action was, more likely than not, motivated by racial bias. Ibid.
Henderson's next two points require little discussion.
R. 2:11-3(e)(2). We agree that, in one brief aspect, the prosecutor's summation was overly dramatic and approached the boundaries of what was proper, but the judge instructed the jurors that the attorneys' comments were not binding on them and later reminded them that the attorneys' summations were not evidence. On this record the prosecutor's use of a powerpoint presentation, one screen of which showed defendants' pictures with the word "GUILTY" written across them, was harmless beyond a reasonable doubt. See R. 2:10-2; State v. Macon, 57 N.J. 325, 335 (1971). These defendants carried out the beating and attempted armed robbery of their victim in full view of an impartial eyewitness who called 9-1-1. The police arrived promptly and caught them in the act. There is no chance that they would have been acquitted but for the prosecutor's comments in summation. We find no abuse of the trial court's discretion in denying defendants' mistrial motion. See State v. Kueny, 411 N.J. Super. 392, 402-03 (App. Div. 2010).
Defendant's weight-of-the-evidence issue is procedurally barred because it was not raised in a new trial motion in the trial court. R. 2:10-1. But even if we consider the argument, it is without merit. There was ample evidence to support the jury's verdict on first-degree armed robbery. See N.J.S.A. 2C:11-1c (defining "deadly weapon" as including any weapon or device "which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury"); State v. Chapland, 187 N.J. 275, 291-93 (2006). McCord testified that he believed the pistol with which he was threatened was a real gun after defendants hit him in the head with it and he felt the weight of the weapon.*fn4
Defendants pointed the pistol at him and demanded his money. Henderson later urged Love to "just shoot him." That was sufficient evidence to support a conclusion that the victim reasonably believed that the gun was real. The court properly denied defendants' motion for a directed verdict of acquittal. State v. Reyes, 50 N.J. 454, 459 (1967); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).
Finally, we find no abuse of discretion or other error in the twelve-year NERA sentence, which was three years lower than the mid-range sentence for a first-degree crime. N.J.S.A. 2C:43-6a(1). The judge appropriately considered Henderson's youth, but she also considered his extensive juvenile record, and the fact that he encouraged his co-defendant to shoot the victim. We find no basis to depart from our usual rule of deference to the sentencing judge's decision. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Roth, 95 N.J. 334, 364 (1984).
We affirm Henderson's conviction and sentence.
In his appeal, defendant Love presents the following points of argument for our consideration:
POINT I: FAILURE TO GRANT THE DEFENDANT'S OBJECTION TO THE PROSECUTION'S PEREMPTORY CHALLENGE OF THE ONE AND ONLY AFRICAN-AMERICAN ON AN OTHERWISE ALL WHITE MONMOUTH COUNTY JURY WAS REVERSIBLE ERROR. REMAND ORDERED BY THIS COURT FAILED TO PROVIDE AN ACCEPTABLE JUSTIFICATION FOR THE PROSECUTION'S CHALLENGE AND THEREFORE THE PRIMA FACIE EVIDENCE OF RACIAL BIAS HAS NOT BEEN OVERCOME AND DEFENDANT LOVE HAS SHOWN PURPOSEFUL DISCRIMINATION.
POINT II: IT WAS ERROR TO DENY THE MOTION TO DISMISS THE INDICTMENT WHERE THE PROSECUTION FAILED TO PROVIDE THE GRAND JURY WITH THE LAW THAT THE ELEMENT OF CONTROL IS NECESSARY TO VIOLATE N.J.S.A. 2C:24-9. NO EVIDENCE EXISTED THAT THE ALLEGED VICTIM WAS IN FEAR OR RECEIVED SUFFICIENT INJURIES TO SATISFY THE ELEMENTS OF N.J.S.A. 2C:15-09(b)/N.J.S.A. 2C:12-1b(1). THE COMBINATION OF FAILING TO PROVIDE EXCULPATORY EVIDENCE WHICH WOULD HAVE PERMITTED THE GRAND JURY TO REACH A DIFFERENT RESULT BUT FOR THE PROSECUTOR'S ERROR STATE V. HOGAN, 336 N.J. SUPER. 319, 344 (APP. DIV.), CERTIF. DENIED, 167 N.J. 635 (2001) AND INDICTING ON SECOND DEGREE ASSAULT IN RESPONSE TO THE SUCCESSFUL DISMISSAL OF THE WEAPONS CHARGE REQUIRES THIS COURT TO DISMISS THE INDICTMENT DUE TO THE EGREGIOUS CONDUCT OF THE PROSECUTION.
1. There was insufficient and misleading evidence and legal instructions presented to the grand jury.
2. The trial court erred in denying the defense motion to dismiss the indictment.
POINT III: THE RIGHT TO A SPEEDY TRIAL GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND IMPOSED ON THE STATES BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WAS VIOLATED. STATE V. TSETSEKAS, 411 N.J. SUPER. 1, 8 (APP. DIV. 2009). POINT IV: DENIAL OF MOTION TO ACQUIT WAS ERRONEOUS. NO EVIDENCE EXISTED IN THE RECORD THAT THE JUVENILE IN QUESTION WAS UNDER THE CONTROL OF DEFENDANT LOVE. N.J.S.A. 2C:24-9; STATE V. LAWS, 262 N.J. SUPER. 551, 556 (APP. DIV. 1993). ADDITIONALLY, NO INFERENCE EXISTED TO PERMIT THE JURY BEING CHARGED WITH ATTEMPT TO COMMIT SERIOUS BODILY HARM OR FEAR FOR PURPOSES OF ROBBERY RATHER THAN THEFT.
POINT V: TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILURE TO GRANT MISTRIAL. INSTRUCTIONS WERE INSUFFICIENT TO CURE PROSECUTION'S EGREGIOUS CONDUCT WHERE IT PROJECTED AT THE END OF ITS CASE TO THE JURY, MUG SHOTS OF THE DEFENDANTS WITH THE TERM "GUILTY" IMPOSED OVER DEFENDANTS['] PHOTOGRAPHS VIA A 42 INCH DIAGONAL FLAT SCREEN.
POINT VI: DEFENDANT LOVE RECEIVED ERRONEOUS AND INSUFFICIENT JURY CHARGES. ERROR WAS COMPOUNDED BY THE VERDICT SHEET WHICH MISSTATED THE LAW OF ROBBERY AND PRECLUDED FINDINGS OF LESSER INCLUDED OFFENSES. JURY VERDICT WAS NOT UNANIMOUS AS TO THE ELEMENTS OF THE CRIMES CHARGED WHERE JURY REQUESTED INSTRUCTIONS DURING DELIBERATIONS AND OBJECTION WAS MADE THAT THE JURY COULD ERRONEOUSLY CONCLUDE THAT "I.E. AN IMITATION FIREARM IS AS A MATTER OF LAW A DEADLY WEAPON."
1. Defendant received an improper charge to support a finding of first-degree robbery.
2. The verdict sheet was erroneous and produced an unjust result as to both the determination of robbery and interfered with the defense of justification.
3. The trial court failed to answer the jury questions.
4. Defendant was denied the lesser included offense of attempted theft.
POINT VII: THE SENTENCING COURT ERRED BY FAILING TO FIND ANY MITIGATING FACTORS AT TIME OF SENTENCE.
Love's Point I raises the same argument concerning jury selection as that asserted by Henderson. As previously stated, the argument is without merit. Love's additional contention, concerning a non-minority juror (juror number six), is likewise unpersuasive. The prosecutor excused this juror, who, among other remarks, expressed concern that there were an inadequate number of African-American jurors on the panel. Neither defense counsel objected to his being excused.
The prosecutor later explained on the record that one of this juror's comments, about looking at the case "from the defendants' point of view," caused her to believe he might be biased toward the defense. After reviewing the entire voir dire of juror number six, we cannot infer, from the prosecutor's use of a peremptory challenge to excuse him, that her later use of a challenge to excuse an African-American juror was racially motivated. Love's arguments on this point lack sufficient merit to warrant further discussion here. R. 2:11-3(e)(2).
Defendant's remaining arguments are equally unpersuasive and, except as discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Point II challenges the indictment. We review the judge's decision to deny the motion to dismiss the indictment for abuse of discretion. State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1994). In a thorough oral opinion placed on the record on April 28, 2008, Judge Uhrmacher found that the State presented the Grand Jury with ample evidence of both conspiracy to commit a robbery and robbery. She noted the evidence that defendants showed the victim a gun, demanded money from him and beat him, and that one defendant urged the other to "shoot him." She further found sufficient evidence that "Mr. Love, who is 18, was using Mr. Henderson, who was 17, to aid in taking money by force from the alleged victim." She also found evidence that defendants attempted to cause serious bodily injury. The judge further concluded that the State did not withhold exculpatory evidence from the Grand Jury, because Love's statement to the police was not independent evidence establishing his innocence.
We agree with the judge's findings on all issues raised in the motion. The State presented prima facie evidence that Love conspired with the juvenile Henderson to commit the armed robbery. It was not necessary for the State to also provide evidence that Love exercised control over Henderson. See N.J.S.A. 2C:24-9a. It was not improper to withhold from the Grand Jury evidence of Love's statement to the police. "[A]n accused's self-serving statement denying involvement in a crime, although such a statement directly negates guilt, ordinarily would not be sufficiently credible to be 'clearly exculpatory,' and need not be revealed to the grand jury. State v. Hogan, 144 N.J. 216, 238 (1996). In summary, we find no basis to disturb Judge Uhrmacher's decision and we affirm substantially for the reasons stated in her opinion.
Judge Uhrmacher's opinion denying defendant's speedy trial motion was also placed on the record on April 28, 2008, and was equally cogent. She found that much of the trial delay was due to waiver proceedings concerning Henderson, who was a juvenile, as well as the State's inability to locate the victim. She also found no unfair prejudice to defendants from the delay. However, the judge did set a date certain for the trial. We find no error in the judge's decision and we agree with the reasons she stated. See Barker v. Wingo 407 U.S. 514, 529, 92 S. Ct. 2182, 2191-92, 88 L. Ed. 2d 101, 116-17 (1972); State v. Szima, 70 N.J. 196, 200-02, cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976); State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).
We likewise find no error in the judge's decision to deny defendant Love's motion for a directed verdict at the close of the State's evidence, on the charge of using a juvenile in the commission of a crime. As Judge Uhrmacher found, there was sufficient evidence that Love conspired with the juvenile, Henderson, to commit this robbery. See N.J.S.A. 2C:24-9a. We also agree with the judge that there was sufficient evidence that defendants hit the victim in the head with a metal gun, even if it only fired blanks, and that would have been sufficient to sustain a conviction for an attempt to cause serious bodily injury. N.J.S.A. 2C:12-1b(1).*fn5 We affirm for the reasons stated by the judge on May 20, 2008.
We reject Love's Point V, which mirrors the prosecutorial misconduct argument raised in Henderson's Point II. The contention requires no further discussion here. R. 2:11-3(e)(2).
Love's Point VI, which jumbles together several different attacks on the jury charge and the verdict sheet, is equally unpersuasive. The jury charges were proper and were carefully tailored to explain not only the State's theory of the case as it related to the legal concepts but defendants' theories as well. The charge appropriately explained the law concerning the use of an imitation firearm. Moreover, it is clear in this case that there was not a "fragmented verdict." See State v. Frisby, 174 N.J. 583, 598 (2002). The jury plainly understood that it had to unanimously agree on the basis for a conviction of first-degree robbery; it duly returned a unanimous verdict only on the gun-related predicate acts and not on the other predicate acts. Defendant's arguments in his Point VI are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Lastly, we find no error in the sentence imposed. See Bieniek, supra, 200 N.J. at 608; Roth, supra, 95 N.J. at 364. The judge appropriately considered Henderson's youth as well as his lengthy prior record in crafting the sentence. She imposed a sentence for the robbery that was at the lower end of the first-degree sentencing range, and imposed a concurrent rather than consecutive sentence for employing a juvenile in a crime. We find no basis to second-guess the judge's sentencing decision. We affirm Love's sentence, as well as his conviction.