STATE OF NEW JERSEY v. DAVID I. ROGERS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4165-07T44165-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID I. ROGERS,

Defendant-Appellant.

_____________________________________

 

Submitted December 15, 2009 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 06-03-0266.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Brent A. Bramnick, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David I. Rogers appeals from a judgment of conviction and sentence. He and his co-defendant Barry Pinckney were tried to a jury on charges arising from a robbery committed by Pinckney in a parking lot in Union and during the police chase that followed while defendant drove Pinckney away from the scene. The jury found defendant guilty of second-degree eluding by creating a risk of death or injury, N.J.S.A. 2C:29-2b; third-degree criminal mischief by causing property damage over $2000 to a patrol car, N.J.S.A. 2C:17-3a(1); and third-degree aggravated assault by attempting to cause bodily injury to a police officer performing his duty, N.J.S.A. 2C:12-1b(5). The jury acquitted defendant of possession of a knife with purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4d, but convicted him as an accomplice in the first-degree armed robbery committed by Pinckney, N.J.S.A. 2C:15-1.

The judge sentenced defendant as follows: for first-degree robbery, a term of ten years subject to parole ineligibility and supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; seven years for second-degree eluding; and four years for third-degree criminal mischief and third-degree aggravated assault. The sentences are all concurrent, and the appropriate fines, penalties and assessments were also imposed.

We affirm defendant's convictions for eluding, criminal mischief and aggravated assault. We reverse and remand his conviction for first-degree robbery, however, because the court did not resolve a discrepancy between the jurors' findings as announced by their foreperson in court and the verdict sheet, which indicated that the jury found defendant not guilty of first-degree robbery. In addition, we remand for further proceedings on defendant's sentences for eluding, aggravated assault and criminal mischief.

I

On December 20, 2005, Robert Bantang left his office in Union at about 1:30 a.m. As he loaded files into his car, Pinckney rushed up and pushed him against it. Pinckney held his hands in his pockets, pointed as if he had a weapon and demanded that Bantang give him money. Bantang surrendered his cash.

Pinckney then grabbed the collar of Bantang's sweatshirt and said, "You are going to come with me." At that point, Bantang saw that Pinckney had a knife. Fearful, Bantang struggled with Pinckney and managed to free himself and run away. Bantang looked back and saw Pinckney running in the opposite direction. Keeping Pinckney in sight, Bantang got into his car and followed.

Pinckney entered the rear passenger compartment of a Ford Explorer, which was immediately driven away by a man whom Bantang later identified as defendant. Bantang also saw a second passenger in the front seat. Bantang followed the Explorer and called 911. After relaying the information, Bantang abandoned the chase. Officer Daniel Mitchell of the Union Police Department responded. He saw an Explorer at an intersection controlled by a traffic light. Although the light was red, defendant made a right-hand turn without stopping and traveled toward the patrol car. Officer Mitchell made a u-turn, turned on his lights and siren, and began pursuit.

Defendant drove erratically and did not respond to the officer's signal. At one point, defendant slowed down and one of the occupants got out and ran. When defendant sped off again, Officer Mitchell continued the pursuit. Defendant drove through several red lights and a stop sign before jumping a curb and hitting a telephone pole. In backing away from the pole, defendant drove the Explorer into Officer Mitchell's car, which was damaged but operable.

Defendant continued his flight, and Officers Robert Donnelly and Pietro DiGena, also of the Union Police Department, joined Officer Mitchell in the pursuit. When defendant reached the entrance to Route 78, the Explorer came to rest against a barrier at the entrance to the highway.

Defendant and Pinckney were removed from the car and arrested. Bantang later identified the Ford Explorer as the getaway car, Pinckney as the man who robbed him, and, as noted above, defendant as the driver of the Explorer. The estimate for the cost of repairing the damage to the patrol car was $4565.08.

II

Defendant raises five issues on appeal:

I. THE JURY INSTRUCTIONS ON ACCOMPLICE

LIABILITY DID NOT CONTAIN ANY OF THE CRITICAL LANGUAGE OF STATE V. BIELKIEWICZ, REGARDING THE POTENTIAL LIABILITY OF AN ACCOMPLICE FOR AN OFFENSE LESS THAN THAT OF THE PRINCIPAL, DESPITE JURY QUESTIONS REGARDING THAT VERY TOPIC (NOT RAISED BELOW).

II. NO ONE NOT THE TRIAL JUDGE NOR ANY

COUNSEL APPEARS TO HAVE NOTICED A DISCREPANCY BETWEEN THE COURT'S COPY OF THE VERDICT SHEET AND THE ROBBERY VERDICT AS ALLEGEDLY ANNOUNCED IN COURT, THEREBY WARRANTING A REMAND TO EXPLORE THE ISSUE (NOT RAISED BELOW).

III. EACH TIME THE JUDGE ASKED THE JURY TO

DISTINGUISH BETWEEN DEGREES OF AN OFFENSE, HE FAILED TO ASSIGN A BURDEN OF PROOF TO THAT DECISION; ADDITIONALLY, HE FAILED TO PROVIDE A POSSIBLE VERDICT FOR A LESSER DEGREE OF CRIMINAL MISCHIEF (NOT RAISED BELOW).

IV. THE ANSWER TO THE JURY'S QUESTION ON

ATTEMPTED AGGRAVATED ASSAULT WAS INSUFFICIENT TO ANSWER THE QUESTION (NOT RAISED BELOW).

V. DEFENDANT'S SENTENCE IS MANIFESTLY

EXCESSIVE AND HE SHOULD NOT HAVE BEEN DENIED THE RIGHT TO HAVE FAMILY MEMBERS SPEAK IN MITIGATION.

The issues raised in Points III and IV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

III

In Point II, defendant addresses a discrepancy between the verdict sheet and the verdict announced in court that implicates his conviction for first-degree robbery. We are persuaded that the unresolved discrepancy requires reversal of defendant's conviction for first-degree robbery. It is not at all clear that the jurors found that the State proved defendant's guilt of that crime.

When "'a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact no matter how the State labels it must be found by a jury beyond a reasonable doubt.'" State v. Natale, 184 N.J. 458, 473 (2005) (quoting Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 2439, 153 L. Ed. 2d 556, 572 (2002)); see Blakely v. Washington, 542 U.S. 296, 305, 124 S. Ct. 2531, 2538, 159 L. Ed. 2d 403, 414-15 (2004); Natale, supra, 184 N.J. at 465-66. Robbery is a crime of the second degree, subject to an ordinary term of incarceration that the judge may set within a range of five to ten years. N.J.S.A. 2C:15-1b; N.J.S.A. 2C:43-6a(2). On proof of specific additional facts, robbery is a crime of the first degree, which is subject to an ordinary term set within a range of ten to twenty years. N.J.S.A. 2C:15-1b; N.J.S.A. 2C:43-6a(1).

Under Ring and Blakely, defendant could not be convicted of and sentenced for first-degree robbery unless the jurors found that the State established the facts that elevated this robbery to a crime of the first degree beyond a reasonable doubt. To establish defendant's guilt of first-degree robbery, the State relied upon defendant's being an accomplice to Pinckney's use of a deadly weapon while committing the theft required for robbery. N.J.S.A. 2C:15-1a, b; N.J.S.A. 2C:2-6.

The terms and format of the verdict sheet provide essential context for our discussion of the conflict between the findings recorded on that sheet and the findings announced by the foreperson in court. The verdict sheet states:

Question 1 as to Defendant, David Rogers:

As to the charge of ROBBERY of Robert Bantang:

We, the Jury, find Defendant, David Rogers,

__________ ______

NOT GUILTY GUILTY

IF GUILTY, was the defendant armed with, or did he use, or threaten the immediate use of a deadly weapon:

______ ______

NO YES

The jurors placed one checkmark on the line above the word "GUILTY" and another on the line above the word "NO." The markings are clear and unambiguous; there are no stray marks, cross-outs or any other indication of ambivalence. The verdict sheet reflects that the jurors determined that defendant committed robbery but was not armed, using or threatening the immediate use of a deadly weapon.

When the jurors reported that they had a verdict and returned to the courtroom, the judge inquired of the foreperson. "Question one, as to Mr. Rogers, guilty or not guilty?" The foreperson responded, "Guilty." The judge then asked, "Was the defendant armed with or did he use or threaten the immediate use of a deadly weapon?" The foreperson responded, "Yes."

After taking the foreperson's responses to the remaining questions on the verdict sheet, the judge addressed the members of the jury.

Now, ladies and gentlemen, you discussed this in the jury room, and if that was your decision in the jury room as to all verdicts of guilty that have been read by the [f]oreperson, and that continues to be your decision that as to guilty as to all the verdicts read by the [f]oreperson say, "I agree," because you are agreeing with what you decided inside and you agree . . . now. So you would say, "I agree."

[(Emphasis added).]

The responses of the individual jurors to this general inquiry are not included in the transcript. It simply states: "Jury [sic] polled and are unanimous." After the jurors were polled, they were discharged with thanks for their service and without further inquiry.

Nothing in the record suggests that the judge or the attorneys reviewed the verdict sheet before the jury was discharged. The only indication that the verdict sheet was presented to the court is a marking identifying it as a court exhibit in accordance with Rule 3:19-1(b). Neither the exhibit nor its marking is mentioned on the record of the return of the verdict.

Relying upon the polling of the jurors, the State argues that we should disregard the blatant inconsistency between the verdict sheet and the determinations announced by the foreperson. The polling, however, provides no information that permits us to discern whether a mistake was made when the line on the verdict sheet was checked above the word "No" or when the foreperson responded "Yes." If the mistake was made by the foreperson, the question the judge posed to poll the jurors would not have elicited a response from a juror who believed that the foreperson misspoke. The judge asked the jurors if they agreed "as to all verdicts of guilty that have been read by the [f]oreperson." But with respect to defendant's responsibility as an accomplice in the possession or use of a deadly weapon, the verdict sheet did not call for a verdict; it called for a "Yes" or "No" answer to a simple question of fact "was the defendant armed with, or did he use, or threaten the immediate use of a deadly weapon." In short, the polling, as conducted, did not address or eliminate the doubt raised by the discrepancy.

Polling is a "'practice of long standing [that] requires each juror to answer for himself, thus creating individual responsibility, eliminating any uncertainty as to the verdict announced by the foreman.'" State v. Vaszorich, 13 N.J. 99, 126 (quoting State v. Cleveland, 6 N.J. 316, 322 (1951)), cert. denied, 346 U.S. 900, 74 S. Ct. 219, 98 L. Ed. 400 (1953); see R. 1:8-10. Polling permits detection and resolution of confusion and disagreement and clarification of the precise nature of verdict. State v. Milton, 178 N.J. 421, 433 (2004). Because the jurors' verdict is not final until it is accepted by the court and the jury is discharged, State v. Jenkins, 349 N.J. Super. 464, 475-76 (App. Div.), certif. denied, 174 N.J. 43 (2002), the jurors may be asked to resume deliberations if clarification is needed. State v. Rodriguez, 254 N.J. Super. 339 (App. Div. 1992).

In this case, that opportunity was lost because each juror was not asked whether he or she agreed that defendant was guilty of robbery and of being armed with, or using or threatening the immediate use of a deadly weapon. The trial court's poll must confirm that each juror agrees with the verdict as announced. Milton, supra, 178 N.J. at 433; Ragusa v. Lau, 119 N.J. 276, 281 (1990). In this case, that could not be done without taking precautions to formulate a question for polling that would ensure that each juror agreed on the facts essential to a conviction for first-degree robbery. Milton, supra, 178 N.J. at 434.

Verdict sheets may be used, in the discretion of the judge, "to facilitate determination of the grade of the offense" and "shall be used in those cases in which the jury must find the factual predicate for an enhanced sentence or the existence of a fact relevant to sentencing" that is not an element of the offense. R. 3:19-1(b). This case demonstrates that a verdict sheet should be reviewed before the verdict is accepted and the jury is discharged. That simple precaution will permit a judge to formulate proper questions for polling and to address any ambiguities suggested by discrepancies.

This is not the first time we have been confronted with a verdict reflected on the transcript that is not in conformity with the findings recorded on the verdict sheet. In Jenkins, the transcript reflected that "the foreman advis[ed] the court that [the jury] found defendant not guilty of aggravated manslaughter." 349 N.J. Super. at 479. The "verdict sheet[, however,] clearly marked defendant guilty of aggravated manslaughter and . . . the trial court, when it polled the jury, indicated a verdict of guilty of aggravated manslaughter and all jurors concurred." Ibid. The trial court concluded that the error was in the transcription, and, after considering the polling and the fact that the foreperson had not reported verdicts on lesser-included offenses stated on the verdict sheet, we accepted that determination. Ibid.

Arguing from the premise that the verdict is not final until it is announced in court and accepted by the judge and relying upon State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995) (a case involving discrepancies between a sentence as announced in court and recorded on the judgment of conviction), the State argues that the verdict as reported on the transcript controls and that we should disregard the discrepancy. We decline to rely on a rule developed in a different context to dispense with a serious issue implicating the defendant's right to be convicted and sentenced only if a jury has found that the State established the essential facts by proof beyond a reasonable doubt.

In Jenkins, we did not rely on the verdict reflected on the transcript. Rather, we looked to the pertinent facts of record to resolve the ambiguity what the jurors said and did while the verdict was being taken and when they were polled. 349 N.J. Super. at 479. In this case, unlike Jenkins, the record is not sufficiently informative to permit us to resolve the discrepancy.

A new trial is warranted. See Cleveland, supra, 6 N.J. at 322, 332 (discussing conviction for first-degree murder pursuant to a statute that required the jury to return a verdict specifying the degree and ordering a new trial where it was not clear that the jury had made that determination); cf. Milton, supra, 178 N.J. at 440, 443 (remanding for a new trial where one juror's expression of agreement with the verdict was ambiguous). A finding of not guilty of first-degree robbery, which was ambiguously implied by question and answer on the verdict sheet, cannot be construed as an acquittal of first-degree robbery. Cf. State v. Williams, 30 N.J. 105, 116 (1959) (discussing cases in which a finding of guilt of a lesser- included offense implies an acquittal of a higher offense).

The State also urges us to refrain from addressing this issue because the error was not noticed by defense counsel in the trial court. Because the record is silent as to whether the attorneys were given an opportunity to review the completed verdict sheet before the jury was discharged, there is no reason for us to assume that the defense was aware of the facts giving rise to this reason for seeking relief. Even if we were to assume that the discrepancy should have been discovered prior to sentencing, once the jury was discharged it was too late for any corrective action other than a new trial. Cleveland, supra, 6 N.J. at 323-25.

For all of the foregoing reasons, it is appropriate for us to address the discrepancy, which implicates defendant's right to a jury trial and has the clear capacity to produce an unjust result. R. 2:10-2. Because we have a reasonable doubt about whether defendant's conviction for first-degree robbery rests upon facts found by a unanimous jury, reversal of that conviction is warranted. See State v. Castagna, 187 N.J. 293, 312 (2006); see Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967).

The reasons for doubting the verdict on first-degree robbery do not extend to defendant's conviction for second-degree robbery. It is clear that the jury found defendant guilty on that charge. Accordingly, the State may elect to avoid retrial and accept a conviction for second-degree robbery. In the event that the State makes that election, the judge must resentence defendant for the second-degree crime. See State v. Natale, 178 N.J. 51, 54 (2003) (discussing the State's option to elect to forego a sentence under a prior version of the No Early Release Act, N.J.S.A. 2C:43-7.2, or proceed to prove the predicate facts to a jury).

IV

In Point I of defendant's brief, he contends that the jury instructions on accomplice liability and first-degree robbery do not conform with the principles established in State v. Bielkiewicz, 267 N.J. Super. 520, 523 (App. Div. 1993) and "adopted, with approval" by the Supreme Court. State v. Ingram, 196 N.J. 23, 39 (2008); see, e.g., State v. Savage, 172 N.J. 374, 388 (2002); State v. Rumblin, 166 N.J. 550, 556 (2001).

Pertinent here, in State v. Norman, 151 N.J. 5, 37 (1997), the Court explained that "under Bielkiewicz, 'jury instructions on accomplice liability must include an instruction that a defendant can be found guilty as an accomplice of a lesser included offense even though the principal is found guilty of the more serious offense.'" Ingram, supra, 196 N.J. at 39 (quoting Norman). We agree with defendant that this alternative was not adequately conveyed and stress that care should be taken to explain that option in the event of a retrial on first-degree robbery.

Defendant also contends that State v. Grey, 147 N.J. 4, 11-17 (1996), requires entry of a judgment of acquittal on first-degree robbery because the jury acquitted defendant of possession of a weapon with the purpose of using it unlawfully against the person of another. The claim is premised on the fact that the verdict of not guilty on the possessory offense would be inconsistent with a verdict of first-degree robbery.

Defendant's argument overlooks the record. With respect to the weapons offense, the charge was submitted on a theory of joint and constructive possession; the judge expressly directed, "remember accomplice liability does not apply to this count." Accomplice liability, however, was the theory upon which defendant's conviction for first-degree robbery was returned. Thus, even if we were to assume that inconsistency in these verdicts would have any significance in this case after State v. Banko, 182 N.J. 44 (2004), there is no inconsistency here.

V

Although there in no reason to consider defendant's objections to his sentence for first-degree robbery, his convictions for eluding, aggravated assault and criminal mischief are not affected by our decision. Therefore, we address defendant's claims relevant to those sentences.

"[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). "In the end, '[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). When a trial judge has "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]," we may not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted).

Defendant argues that the sentences he received demonstrate that the judge did not comply with the governing principles. His argument starts from the indisputable proposition that a judge must fix a sentence within the ordinary range in accordance with the balance of aggravating and mitigating factors that the judge finds are supported by the record. See Natale, supra, 184 N.J. at 487-88. He contends that his sentences a minimum term for first-degree robbery and mid-range sentences for the other crimes deviate from that principle.

While we do not suggest that the aggravating factors and mitigating factors must have the same balance with respect to every conviction in a case involving sentences for multiple crimes, the combination of minimum and mid-range sentences imposed in this case required explanation.

In imposing the minimum sentence for first-degree robbery, the judge deemed the following facts in mitigation significant: defendant has no prior criminal record; he has a serious health condition that requires a pacemaker; and he has "redeeming features," such as his "going to college." Those facts, which are all relevant to statutory mitigating factors, N.J.S.A. 2C:44-1b(7), (9), (10), apply to all of defendant's convictions.

Similarly, the judge found one aggravating factor that he deemed applicable to all of defendant's convictions, the need to deter. N.J.S.A. 2C:44-1a(9). In addition, the judge found one aggravating factor applicable, in his view, to defendant's convictions for eluding and aggravated assault. That aggravating factor was the victim's status as a law enforcement officer. N.J.S.A. 2C:44-1a(8).

The judge erred in considering the law enforcement officer's status as a factor aggravating the crime of aggravated assault. Defendant was convicted of a simple assault that was elevated in degree because the victim was a law enforcement officer acting in performance of his duties. N.J.S.A. 2C:12-2b(5). Thus, the judge impermissibly double-counted an element of the crime as an aggravating factor. State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984), certif. denied, 101 N.J. 234 (1985). To the extent that the judge relied on this aggravating factor to impose a mid-range sentence for aggravated assault, he erred.

When a sentence is based on an aggravating factor not supported by the record or when it appears that the judge has overlooked a mitigating factor supported by the record, it is appropriate for this court to direct the judge to reconsider the sentence. See Bieniek, supra, 200 N.J. at 608 (discussing circumstances warranting remand). In this case, the judge deviated from controlling principles by considering an aggravating factor that is not applicable as a matter of law. In addition, the judge apparently overlooked the mitigating factors that he found persuasive in imposing defendant's sentence for robbery when he fixed the terms of defendant's sentences for aggravated assault, eluding and criminal mischief. Accordingly, we remand.

Defendant raises a second objection relevant to sentencing that may arise again on remand. He contends that the judge erred in refusing to allow friends and family members to speak on his behalf at the time of sentencing. Defendant's attorney told the judge that the witnesses would address defendant's background and character, his support network within the community, his medical condition and the support he provides to members of his family. The State objected. Concluding that the Rules of Court do not contemplate statements of the sort offered by the defense and prohibit such statements when the State objects, the judge denied the request.

Although the Rules of Court do not provide explicit guidance, trial judges have discretion to "allow[] members of a defendant's family or others" to be heard at sentencing. State v. Blackmon, ___ N.J. ___, ___ (2010) (slip op. at 19) (plurality decision); cf. id. at ___ (Long, J. and Rabner, C.J., concurring) (concluding that defendant has a right to present evidence that bears on an aggravating or mitigating factor); see, e.g., Bieniek, supra, 200 N.J. at 605 (testimony); State v. Megargel, 143 N.J. 484, 491 (1996) (letters submitted by character witnesses).

Here, the proffer was evidence relevant to the character and attitude of the defendant and the excessive hardship that imprisonment would bring to the defendant or his dependents. N.J.S.A. 2C:44-1b(9), (11). The difficulty is that the judge did not preclude the statements in an exercise of his discretion; he did so on the mistaken impression that he had no authority to accept them. Consequently, we cannot defer to his decision. Alk Assocs., Inc. v. Multimodal Applied Sys., Inc., 276 N.J. Super. 310, 314-15 (App. Div. 1994). On remand, the judge should reconsider that ruling before proceeding with the reconsideration of sentence.

Affirmed in part; reversed in part and remanded for further proceedings in conformity with this opinion.

 

The judgment of conviction reflects that defendant was convicted of fourth-degree assault.

The verdict sheet included an identical entry "as to Defendant, Barry Pinckney."

Read literally, the factual question posed on the verdict sheet and repeated by the judge in polling the jurors did not ask whether defendant was responsible, as an accomplice, for Pinckney's possession and use of the weapon. The query was whether defendant engaged in that conduct.

(continued)

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A-4165-07T4

June 28, 2010