STATE OF NEW JERSEY v. CLAVEN ANDERSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-6298-03T41049-04T4

A-1049-04T4

A-2686-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER HALL,

Defendant-Appellant.

__________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLAVEN ANDERSON,

Defendant-Appellant.

__________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENTON RODNEY,

Defendant-Appellant.

____________________________________________________

 
Submitted March 14, 2006 - Decided April 7, 2006

Before Judges Lefelt, R. B. Coleman

and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Passaic

County, Indictment Nos. 02-04-0414

(Anderson), 02-04-0114 (Kenton) and

02-04-0414 (Hall).

Yvonne Smith Segars, Public Defender,

attorney for appellant Claven

Anderson (Melissa R. Vance, Designated

Counsel, on the brief).

Yvonne Smith Segars, Public Defender,

attorney for appellant Kenton Rodney

(Michael C. Kazer, Designated Counsel,

on the brief).

Yvonne Smith Segars, Public Defender,

attorney for appellant Christopher

Hall (Alison Perrone, Designated

Counsel, on the brief).

Zulima V. Farber, Attorney General,

attorney for respondent (Joie

Piderit, Deputy Attorney General,

of counsel and on the briefs in

A-1049-04T4, A-2686-04T4 and

A-6298-03T4.

PER CURIAM

Late one night, defendant Claven Anderson drove co-defendants Christopher Hall and Kenton Rodney to a Paterson Park supposedly to purchase marijuana. While Anderson waited in his van, Hall with a handgun and Rodney with a knife robbed a group of young people of their valuables. Hall and Rodney then ran back to the van, and after ordering Anderson to "drive, drive, drive," fled the scene. A brief time later, they were spotted by the police, who had received a detailed description of the perpetrators and the van. Defendants were stopped and arrested. In a warrantless search, the two weapons were recovered from the van along with the goods that had been stolen from the victims.

All three defendants were tried together before a Passaic County judge and jury. Anderson was found guilty of possession of a handgun without a permit and possession of a weapon by a convicted felon. Hall and Rodney were convicted of several counts of first-degree robbery and unlawful possession of a weapon. Hall was also convicted of aggravated assault. The judge sentenced Rodney for the robbery convictions to fifteen years imprisonment, with application of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and for the unlawful possession of a weapon to a consecutive four-year term. Hall's sentence was similar to Rodney's. The judge sentenced Anderson to a five-year term, with five years "before parole eligibility" for possession of the handgun by a convicted felon. For purposes of this decision, we have consolidated the appeals filed by the three defendants.

The three defendants raise the following issues: (1) whether the trial court erred when it failed to bifurcate Anderson's trial on possession of a weapon by a convicted felon and unlawful possession of a handgun without permit; (2) whether, after being asked a question by the jury, the trial court incorrectly recharged the jury on possession, without repeating the definition of knowingly; (3) whether the prosecutor's use of peremptory challenges was unconstitutionally based on racial discrimination; (4) whether the prosecutor's comments during summation constituted reversible misconduct; (5) whether the trial court's instruction on flight was warranted; (6) whether the police had probable cause to stop and arrest defendants and whether the warrantless search of Anderson's vehicle was justified under exigent circumstances; (7) whether the court erred in denying Anderson's severance motion despite the antagonism Anderson expressed toward Rodney; (8) whether Rodney's conviction for possession of a handgun without a permit should be vacated because the jury acquitted defendant of every count where possession of a handgun was an element of the crime; (9) whether Rodney's sentence was proper in view of the sentencing judge's findings and the record; and (10) whether Hall's sentence was proper in view of the sentencing judge's findings and the record and whether the imposition of consecutive sentences was proper.

We have carefully reviewed each of the arguments in light of the record and the pertinent law and have concluded that, except for the first argument advanced by Anderson, all of the others are without sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(2). We nevertheless briefly comment on some of these arguments and then explain why Anderson must receive a new trial.

Hall and Rodney both argue that the prosecutor's use of peremptory challenges against African-American venire persons during jury selection violated defendants' constitutional rights to an impartial jury, a fair trial, and equal protection. We agree with the State and the trial judge that the prosecutor's explanations for the peremptory challenges were not "sham excuses belatedly contrived to avoid admitting acts of group discrimination."

The reasons given by the prosecutor explaining his excusal of all four prospective jurors were not dependant on their race. Rather, they were based on circumstances and facts relevant to the individuals' ability to serve as jurors in a criminal trial. Fear of retaliation by defendants; being raped and subsequently expressing a level of dissatisfaction with the handling of the prosecution; downplaying the significance of a crime against a family member; and being tardy for jury selection, arguably without a legitimate excuse, while wearing sunglasses, are all facially neutral reasons that justify the prosecutor's use of peremptory challenges.

Furthermore, Rodney's argument that the prosecution impermissibly "misrepresented" its satisfaction with the jury is unpersuasive. The State's multiple statements of satisfaction with the jury, including the juror who on the second day of jury selection arrived late with sunglasses, demonstrate that the juror was not excused on account of his race. Instead, the excusal was due to his actions, being late and wearing sunglasses.

As the State correctly argues in its appellate brief, when a prospective juror wears sunglasses which make it difficult, if not impossible, to evaluate their facial demeanor, courts have accepted their exclusion through use of a peremptory challenge as justified on race-neutral grounds. See e.g., United States v. Joe, 787 F. Supp. 548, 555-56 (E.D. Va. 1992), aff'd, 989 F.2d 496 (4th Cir. 1993); People v. Martinez, 696 N.E.2d 771, 779 (Ill. App. 1998); Alexander v. State, 866 S.W.2d 1, 8 (Tex. App. 1993), cert. denied, 511 U.S. 1100, 114 S. Ct. 1869, 128 L. Ed. 2d 490 (1994); Cooper v. State, 611 So. 2d 460, 465 (Ala. App.), cert. denied, 1992 Ala. LEXIS 1646 (1992).

Regarding the arrest and search, the arresting officers had received a report of an armed robbery based on information provided by the victims of the robbery. Shortly thereafter they observed a van which fit the description and which had a license plate that matched the partial license plate number given in the report. Upon stopping the vehicle, the officers observed defendants, two of whom fit the description of the perpetrators of the armed robbery. Rodney was then seen moving about inside the van in an excited and frantic manner.

As the robbery had occurred in a nearby park shortly before the stop was made, the officers had reasonable grounds to believe that defendants were the perpetrators. Additionally, they were justified in exercising caution both due to the report's indication that a gun and knife had been used in the robbery and based on the commotion seen inside the van. Under these "facts and circumstances," where the officers had been given "reasonably trustworthy information," probable cause to arrest the van's occupants was present. Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001).

The Supreme Court recently held unconstitutional "a warrantless search of an automobile as incident to an arrest after the occupants have been removed from the vehicle and are secured in police custody." State v. Eckel, 185 N.J. 523, 524 (2006). Even though defendants were arrested and secured before the search of Anderson's van, the automobile exception justified the warrantless search. State v. Cooke, 163 N.J. 657, 671 (2000).

After defendants were frisked and handcuffed, the gun and knife described in the victim's report had yet to be found. The van was open and a number of people from the nearby neighborhood were on the street and watching the action. Under these circumstances, the officers were justified in immediately searching the van to "eliminate the potential for deadly harm in a vulnerable public area." State v. Wilson, 362 N.J. Super. 319, 336 (App. Div.), certif. denied, 178 N.J. 250 (2003).

Unlike Hall and Rodney, Anderson testified at trial. He claimed to have been unaware of the criminal intentions of Hall and Rodney. In addition, Anderson called Rodney evil, crazy, the devil, and inhuman. While Anderson's multiple remarks did not cast Rodney in a positive light, they are not demonstrative of an "extreme" level of antagonism that served to prejudice Rodney's defense. See State v. Brown, 118 N.J. 595, 608 (1990). To be sufficiently extreme to warrant separate trials for co-defendants, the comments must be capable of convincing "the jury that at least one [of the defendants] must be guilty, or that both are guilty." Ibid. (citing Commonwealth v. Moran, 387 Mass. 644, 658-60, 442 N.E.2d 399, 408 (1982)). Anderson's comments, while clearly antagonistic, do not go toward establishing Rodney's guilt. Adversarial positions alone do not necessitate severance. Id. at 605-07.

Anderson relies on State v. Ragland, 105 N.J. 189, 192-96 (1986) and State v. Wray, 336 N.J. Super. 205 (App. Div.), certif. denied, 168 N.J. 290 (2001), in support of his argument that it was plain error for the trial judge "to submit both the unlawful possession of a weapon and possession of a weapon by a convicted felon charges simultaneously to the jury, after the defendant had elected to testify." We find merit in this argument.

In the trial judge's initial instructions to the jury, he did not include any mention of the second-degree charge of possession of a handgun by a convicted felon. At that time and up until Anderson testified, the judge was committed to sending to the jury, in accordance with Ragland, only the charges of robbery, aggravated assault, possession of a weapon for unlawful purpose and unlawful possession of a weapon.

After the jury issued its verdict on these charges, then, in accordance with Ragland, proof of defendant's felony conviction would be presented, and the judge would then ask the jury to deliberate on the certain persons charge. Ragland, supra, 105 N.J. at 194-95. At that time, the jury would have also been instructed "in no uncertain terms to consider anew the evidence previously admitted but to disregard completely its prior verdict." Id. at 195.

But in this case, Anderson wanted to testify on his own behalf. The judge advised Anderson carefully and precisely that if he were to testify, the prosecutor could cross-examine him on his prior record and his prior record would be admissible against him to assist the jury in evaluating the credibility of his testimony. Anderson said he understood the consequences and testified. As expected, during Anderson's testimony, the jury was exposed to the fact of his prior convictions.

At that point Rodney's attorney advised the judge that in his opinion it was no longer necessary to bifurcate the two possession charges. The judge agreed, and Anderson's counsel did not object. The judge then submitted all of the charges against Anderson to the jury and Anderson was convicted of possession of a handgun without a permit and possession of the weapon by a convicted felon. He was acquitted of all other charges.

In Wray, supra, 336 N.J. Super. 205, we held that Ragland's bifurcation requirements still applied even "when the defendant has . . . elected to testify and has been questioned concerning his prior criminal record." Id. at 206. We concluded that plain error was committed when the trial judge submitted the unlawful weapon possession charge to the jury simultaneously with the certain persons charge. Id. at 207.

We explained that the issue of "possession" of the weapon was contested by the defendant's own testimony, "which, if accepted, established he did not 'knowingly' possess the weapon." Id. at 212. While the trial court correctly informed the defendant before testifying that prior convictions could be brought out to impeach his credibility, combining both charges "expanded the purpose for admission of proof of his prior convictions from the 'limited purpose' of 'credibility' into the dual purpose of the 'credibility' of defendant's version and that of 'substance proof' of the element of the criminal offense of possession of a weapon by a convicted felon." Id. at 212-13. This consequence was contrary to the defendant's understanding when he decided to testify. Id. at 213.

The State argues that instead of Wray, we should apply State v. Jones, 364 N.J. Super. 376 (App. Div. 2003), to Anderson's situation. In Jones, we approved of the simultaneous submission of both possession charges after the defendant had testified because the court had "announced its decision" to submit both charges simultaneously to the jury, "prior to defendant ever taking the stand." Id. at 385. The defendant in Jones, took "the stand fully apprised of the procedural posture of the matter." Ibid. Because of the defendant's complete acquiescence in the "procedural modification," no unfairness was found. Id. at 385-86.

That is not the situation here. As in Wray, there was no objection to the simultaneous submission of both charges to the jury by Anderson's counsel. Unlike the defendant in Jones, the record does not reflect that Anderson was cognizant of the substantive significance of his testimony. Nor does the record reflect that he was "fully apprised of the procedural posture of the matter," before testifying. Id. at 385. Accordingly, as in Wray, we find plain error and reverse Anderson's convictions of possession for an unlawful purpose and second-degree certain persons not to have weapons. These charges are remanded to the trial court for disposition in bifurcated fashion.

 
Anderson's conviction is reversed and remanded for a new trial. The convictions and sentences of Hall and Rodney are affirmed.

Defendant is referred to as "Rodney Kenton," by, among others, his appellate counsel. However, according to the Indictment and Presentence Report, defendant's correct name is Kenton Rodney.

Each defendant phrased their specific points of error as follows:

Claven Anderson

Point I. The trial court failed to bifurcate the possession of a weapon by a convicted felon charge from the other charges; this constitutes plain error requiring reversal. (Not raised below).

Point II. The failure of the trial judge to give a complete recharge on the issue of possession, specifically the element of knowingly, deprived defendant of due process and the right to a fair trial under the Fourteenth Amendment. (Not raised below).

Kenton Rodney

Point I. The prosecutor's use of the State's peremptory challenges violated the defendant's constitutional right to an impartial jury and due process right to a fair trial.

Point II. The defendant's right to a fair trial was prejudiced when the trial court denied co-defendant Anderson's motion for severance because the level of antagonism between Anderson and the defendant warranted severance. (Not raised below).

Point III. The trial court erred in denying the defendant's motion to suppress evidence because the removal of the defendant from the van constituted a de facto arrest that was not supported by probable cause.

Point IV. The defendant's right to a fair trial was prejudiced by comments made by the prosecutor in summation. (Not raised below).

Point V. The aggregate nineteen (19) year sentence with a 85% NERA period of parole ineligibility on Fifteen (15) of the years was manifestly excessive and an abuse of the court's discretion.

A.

The trial court abused its discretion in not imposing minimum ten (10) year base terms for crimes of the first degree on the defendant's robbery convictions on Counts Five, Eight, Eleven, and Thirteen.

B.

The defendant's conviction on Count Seventeen for possession of a handgun without obtaining a permit to carry, and the consecutive four (4) year sentence imposed, should be vacated because in every count of the indictment in which possession of a handgun was an element of the crime, the defendant was acquitted.

Christopher Hall

Point One. The State's disproportionate exercise of peremptory challenges against black jurors deprived defendant of his rights to trial by an impartial jury and to equal protection of law, necessitating reversal. (U.S. Const., Amends. VI, XIV; N.J. Const. (1947), Art. I, pars. 5, 9, 10).

Point Two. The trial court's "flight" charge was incorrect and not supported by any evidence, thereby denying defendant due process of law and a fair trial.

Point Three. The trial court abused its discretion in sentencing defendant to a fifteen-year term with an 85% period of parole ineligibility on his robbery convictions and to a four-year term on his unlawful possession of a weapon conviction.

Point Four. The imposition of consecutive sentences for defendant's robbery and unlawful possession of a weapon convictions is contrary to the principles of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104 (1986).

(continued)

(continued)

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A-6298-03T4

April 7, 2006