STATE OF NEW JERSEY v. LAWRENCE RAINEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5828-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAWRENCE RAINEY,

Defendant-Appellant.

______________________________________________________________

September 22, 2010

 

Argued March 17, 2010 - Decided

Before Judges Stern, Graves and J. N. Harris.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

04-03-0600.

Michael B. Jones, Assistant Deputy Public

Defender, argued the cause for appellant

(Yvonne Smith Segars, Public Defender,

attorney; Mr. Jones, of counsel and on the

brief).

Robert E. Bonpietro, Deputy Attorney General,

argued the cause for respondent (Paula T. Dow,

Attorney General, attorney; Mr. Bonpietro, of

counsel; Mr. Bonpietro and Frank J. Ducoat,

Deputy Attorney General, on the brief).

PER CURIAM

Defendant Lawrence Rainey was indicted for the first-degree purposeful or knowing murder of Antonio Figueroa (Figueroa) in violation of N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree armed robbery in violation of N.J.S.A. 2C:15-1(b) (count two); third-degree possession of a weapon for an unlawful purpose (a knife) in violation of N.J.S.A. 2C:39-4(d) (count three); and first-degree felony murder in violation of N.J.S.A. 2C:11-3(a)(3) (count four). The trial court denied defendant's pretrial motion to suppress his oral statements and a written statement he gave to the police.

A jury found defendant not guilty of purposeful or knowing murder and the lesser-included offense of passion/provocation manslaughter, but guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser-included offense of murder. The jury also found defendant guilty of the remaining charges, including felony murder. The court merged defendant's other convictions with his felony murder conviction and sentenced defendant to thirty years imprisonment for felony murder with a thirty-year period of parole ineligibility. For the reasons that follow, we affirm.

Detective Paul Seitz (Seitz) of the Monmouth County Prosecutor's Office testified that at about 4:00 a.m. on August 28, 2003, he received a call reporting a stabbing at the Monmouth Park Racetrack employee housing area in Oceanport. Defendant and Figueroa, the victim, both lived there. Seitz arrived at the racetrack about twenty minutes later. As a result of his investigation, Seitz learned that Figueroa was selling crack cocaine at the racetrack, and that he had some involvement with Kimberly Carr (Carr) and defendant.

Seitz interviewed Carr between 9:50 and 10:20 a.m. At about 10:25 a.m., racetrack security personnel brought defendant to the security office where he was questioned in a small office, with the door partially open, by Seitz and Detective Brice Cote of the New Jersey State Police.

After defendant was advised of his Miranda1 rights, he said he understood them and agreed to waive his rights and to speak with the police. Seitz testified defendant said: "I'll talk to you but I'm not signing anything."

When asked to describe defendant's demeanor during the interview, Seitz stated:

Listening, for the most part very quiet. At certain points Mr. Rainey, during my interview of him, when I would present him with questions relating to evidence or facts that were developed in this case, on several occasions he stands up and said, 'Here, arrest me.' And I would tell him, 'I don't want to arrest you. I want to hear, you know, what you have to say about this. I'm not going to take somebody else's word about what's going on.' And then he would sit back down and we would converse.

 

According to Seitz, there were often long pauses between his questions and defendant's answers. In addition, Seitz testified that while the interview was taking place, he received telephone calls from other officers involved in the investigation, who told him "what they had found or information that had been developed," and he would then "proceed to ask Mr. Rainey about some of these facts." For example, when Seitz told defendant he had received information that defendant was buying crack cocaine from Figueroa, defendant said he "was an alcoholic" and "he didn't do crack."

During the interview, Seitz noticed what appeared to be blood on defendant's shirt; defendant denied that it was his blood, but permitted it to be tested. The test was presumptive for blood. In addition, Seitz told defendant they had found blood on the door to his room and on money that defendant had given to Carr.

At about 1:30 p.m., Seitz and Cote left the room to allow Richard Hussey, a security official at the racetrack, to speak with defendant. Hussey had known defendant for about two or three years. Defendant and Hussey hugged and then had a private conversation that lasted approximately fifteen minutes. Hussey told defendant that the officers just wanted to talk to him, and he encouraged defendant to cooperate.

After Hussey left, the detectives continued to interview defendant and food was offered to defendant, but he declined to eat. Later in the afternoon, Seitz confronted defendant with everything he had learned as a result of his investigation and asked: "Do you want people to think you're a cold-blooded killer or was it an accident?" Defendant then began to cry, and he told Seitz that it was early in the morning when "[t]he Mexican,2 as he referred to him, had called out to him where's my money, and this had to do with money that he owed the Mexican that he was paying for Kim's crack habit." Defendant also claimed that Figueroa had "pulled a knife out from behind his back," and while the two men struggled, Figueroa fell down several times.

After defendant gave his verbal statement, he was asked if he would give "a formal typewritten statement," and he agreed. Prior to giving his written statement, defendant was again advised of his rights. The statement started at 5:00 p.m. and ended at 6:18 p.m. Defendant's written statement includes the following:

Q. Mr. Rainey, is it true that you told me that you understood your rights but that you did not want to sign anything but that you wanted to and would talk to me and Detective Cote?

 

A. Yes[.]

 

Q. What is your age?

 

A. 46[.]

 

Q. What is your occupation?

 

A. Groom/hot walker[.]

 

Q. What is your formal education?

 

A. 12th graduated[.]

 

. . . .

 

Q. Can you read, write and understand the English Language?

 

A. Yes[.]

 

Q. Mr. Rainey, would you please tell us in your own words what happened between you and the person you know as "Forehead" earlier this morning.

 

A. I left my room to go to my cousin[']s room, to you know, drink and play cards. When Forehead approached me he asked me do you have my money, I told him I don't have no money, he said you was supposed to take care of a debt for the person, I said I would just as soon as I started working, so he went in his back and pulled out a knife and we tussled. He fell, got up and fell again that's when I got scared and ran. I went back to my room got me a drink, then I went up to Kim's room and that's where I sat for a while. I took my pants off and gave them to her. Then I left. I went out front to the store, then I came back and sat on the bench out front, then I went to another person[']s house and that's where I stayed. I went back to the store, when I came in the gate, two officers called me to the side.

 

Q. Would you please describe the person that you are referring to in your statement that you know as Forehead?

 

A. Short, Mexican, male[.]

 

. . . .

 

Q. Can you please tell me what your relationship is with Forehead?

 

A. We have no relationship, I take care of [a] certain person[']s debt, [who buys] crack from him.

 

Q. Do you know Forehead sells crack?

 

A. The word on the track, yes.

 

Q. Who is the person that you are referring to in your statement as Kim?

 

A. She's the one that I pay her debt, money that she borrows from people I would pay it back for her. She was the one I was paying Forehead for her crack.

 

. . . .

 

Q. Why did Forehead pull this knife on you like you said?

 

A. Because I told him that I would pay the girl[']s debt but I told him I didn't have no money, he said you said you were gonna pay and that's when he pulled it out and said I want my money.

 

Q. How much money did you owe Forehead for this debt?

 

A. It goes up and down. Sometime it might be 40, sometime it might be 20.

 

Q. This morning how much was the debt?

 

A. Like 30 dollars I think, I'm not sure.

 

. . . .

 

Q. Did you have a knife with you during this incident?

 

A. Yes, I had a red . . . the one they took from me, a red handled knife.

 

Q. Did you use this knife during this incident?

 

A. No[.]

 

Q. Did you give Kim any money when you saw her after this incident?

 

A. No[.]

 

Q. When this incident happened between you and Forehead [were] you under the influence of any alcohol or drugs?

 

A. No[.]

 

Q. Are you under the influence of any alcohol [or] drugs at this time?

 

A. Anything I had in my system is gone. Alcohol and [b]eer that I drank this morning is gone.

 

Q. Did you take anything from Forehead after you struggled with him?

 

A. No[.]

After defendant provided an eight-page typewritten statement, Seitz reviewed the statement with him while being videotaped by another detective. The videotaped review took about twenty minutes, and the video was shown to the jury. During the review, defendant initialed each page and signed the statement at 6:18 p.m.

In addition to defendant's statement, the State's proofs included the testimony of Carr, who also lived and worked at the Monmouth Park Racetrack. Carr testified she was friends with defendant and admitted she had purchased drugs from Figueroa.

Carr testified that on the evening of August 27, 2003, she was playing cards and drinking beer with a few others outside her room near the stables. Defendant stopped by a couple of times asking for cigarettes. The card game broke up at about 11:30 p.m., and Carr returned to her room at around 12:30 a.m.

Sometime after 2:00 a.m. on August 28, 2003, defendant arrived at Carr's room with crack cocaine wrapped in aluminum foil. Carr testified defendant showed her "[a]bout three" pieces of crack, and she recognized the packaging as Figueroa's. According to Carr, defendant was sweating and he appeared nervous.

After defendant entered Carr's room, he removed the "jogging pants" he was wearing over his regular pants and gave Carr thirty or thirty-five dollars. Carr asked him, "did you rob a Mexican?" and defendant told her not to "worry about it." But Carr was "nervous because . . . when he was over there [he] didn't have anything and then here he is in my room now and he has money and he has drugs and he's telling me not to worry about it. Now, I'm worried."

Carr and defendant then smoked the crack. According to Carr, defendant left around 4:00 a.m. However, before he left Carr's room, defendant shoved the pants he had taken off down in the arm of a recliner. At first Carr did not say anything. But as defendant was about to leave, Carr said, "well, what about your pants," and defendant said, "oh, throw them away." Later that morning when Seitz interviewed Carr, she gave him the money defendant had given her and the pants defendant had left in her room.

Defendant worked for Nerio Vargas, a horse trainer, at the racetrack. Vargas testified that he had a distinctive knife that he used to cut carrots for the horses, and that defendant also used the knife. Vargas testified that when he discovered his knife was missing and someone "had been stabbed with a knife, he called the police." Vargas also identified the bloody knife the police had found by the victim's body as his knife.

The Monmouth County Prosecutor's Office collected evidence from Figueroa's room and the surrounding area, including the bloodstained knife, red stains on the door to and on the inside of Figueroa's room, several footwear impressions on the floor tiles of Figueroa's room, and blood on the door to defendant's room. In addition, while defendant was in custody, a swab of a red stain was obtained from between the thumb and forefinger of his left hand and from a stain on his shirt.

State Police forensic scientist Matthew Wood testified as an expert in forensic biology. According to Wood, the knife found near Figueroa's body, the floor tiles from Figueroa's room, the pants defendant left in Carr's room, the money defendant gave Carr, marks on defendant's door, the stains on the shirt defendant was wearing, and a swab taken from defendant's left hand, all tested presumptive for blood. No blood was detected on defendant's red-handled folding knife.

Another State Police forensic scientist, Christopher Chillseyzn, testified as an expert in DNA analysis. Based on his analysis of the blood on the knife, money, door, and pants, Chillseyzn concluded within a reasonable degree of scientific certainty that Figueroa was the source of the stain on all of the specimens. Defendant was excluded as a possibility.

Dr. Karai Sinha testified as an expert in forensic pathology. Sinha stated that Figueroa suffered multiple injuries as a result of the use of a sharp force object such as a knife. One of the wounds penetrated the left lung, and another penetrated the left ventricle of the heart, which Sinha considered to be the fatal wound. The third stab wound penetrated the diaphragm. Figueroa suffered three other stab wounds which did not strike any vital organs: one near his right armpit, one at his right elbow, and one to the front of his left thigh. Sinha described the cause of death as hemorrhaging as a result of the stab wounds in the chest. He testified that the knife found at the scene was consistent with the wounds inflicted on Figueroa.

Defendant did not testify and did not present any evidence. Defendant did not dispute that he stabbed Figueroa. However, he claimed he did so in self-defense.

On appeal, defendant presents three arguments:

POINT I

 

N.J.S.A. 2C:11-4 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT BY PUNISHING OFFENDERS WHO, IN THE HEAT OF PASSION RESULTING FROM A REASONABLE PROVOCATION, UNINTENTIONALLY CAUSE DEATH DUE TO EXTREMELY RECKLESS BEHAVIOR, MORE SEVERELY THAN THOSE OFFENDERS WHO, IN THE HEAT OF PASSION RESULTING FROM A REASONABLE PROVOCATION, CAUSE DEATH PURPOSELY OR KNOWINGLY. (Not Raised Below)

 

A. AN EQUAL PROTECTION CHALLENGE TO THE PASSION/PROVOCATION STATUTE IS A LEGAL ISSUE OF FIRST IMPRESSION.

 

B. THE EQUAL PROTECTION CLAUSE REQUIRES A RATIONAL RELATION BETWEEN THE CLASSIFICATION OF CRIMINAL OFFENDERS FOR PURPOSES OF PROVIDING UNEQUAL PUNISHMENTS AND A LEGITIMATE STATE INTEREST.

 

C. THE MORE SEVERE PUNISHMENT OF OFFENDERS WHO CAUSE DEATH BY EXTREME RECKLESSNESS IN RESPONSE TO PASSION/PROVOCATION BEARS NO RATIONAL RELATION TO ANY LEGITIMATE STATE INTEREST.

 

D. NO LEGITIMATE STATE INTEREST BEARS A RATIONAL RELATION TO THE CRIMINAL CLASSIFICATION INVOLVED IN THE PRESENT CASE.

 

1. DISTINGUISHING STATE v. SMITH.

 

2. DISTINGUISHING STATE v. FEARICK.

 

 

3. DISTINGUISHING STATE v. LAGARES.

 

E. THE SENTENCING DISCRETION AFFORDED TO JUDGES UNDER SECTION 2C:44-1(f)(2) OF THE CODE IS NOT AN ADEQUATE REMEDY TO THE VIOLATION OF EQUAL PROTECTION SINCE DISCRETIONARY ENFORCEMENT OF THE CONSTITUTION VIOLATES THE SUPREMACY CLAUSE.

 

POINT II

 

THE TRIAL COURT ERRED IN DENYING RAINEY'S MOTION TO SUPPRESS HIS STATEMENT BY FAILING TO CONSIDER IN ITS LEGAL ANALYSIS, AS REQUIRED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AS WELL AS THE COMMON LAW OF NEW JERSEY, WHETHER RAINEY INVOKED THE RIGHT TO REMAIN SILENT AND WHETHER HIS INVOCATION WAS SCRUPULOUSLY HONORED.

 

A. THE TRIAL COURT CONDUCTED AN IMPROPER LEGAL ANALYSIS BY ANALYZING WHETHER RAINEY VOLUNTARILY WAIVED HIS RIGHT TO REMAIN SILENT WITHOUT FIRST CONSIDERING WHETHER RAINEY'S REPEATED REQUESTS TO BE ARRESTED CONSTITUTED AN INVOCATION OF HIS RIGHT TO REMAIN SILENT AND WHETHER THE INTERROGATING DETECTIVE SCRUPULOUSLY HONORED THAT INVOCATION.

 

B. RAINEY'S REPEATED REQUESTS TO BE ARRESTED CONSTITUTED AT LEAST AN EQUIVOCAL INVOCATION OF THE RIGHT TO REMAIN SILENT.

 

C. THE INTERROGATING DETECTIVE FAILED TO SCRUPULOUSLY HONOR RAINEY'S INVOCATION OF HIS RIGHT TO REMAIN SILENT, RENDERING RAINEY'S STATEMENT UNCONSTITUTION- ALLY COMPELLED.

 

POINT III

 

IT WAS REVERSIBLE ERROR FOR THE COURT TO DENY THE REQUEST TO CHARGE THE JURY ON THEFT FROM THE PERSON AS A LESSER INCLUDED OFFENSE OF ARMED ROBBERY.

 

A. WHEN A DEFENDANT REQUESTS SUBMISSION TO THE JURY OF LESSER INCLUDED OFFENSE, THE TRIAL COURT IS OBLIGATED TO EXAMINE THE RECORD AND DETERMINE WHETHER A RATIONAL BASIS EXISTS FOR THE JURY TO ACQUIT THE DEFENDANT OF THE CHARGED OFFENSE AND CONVICT HIM OF THE LESSER OFFENSE.

 

B. AT TRIAL, THERE WAS A RATIONAL BASIS ON WHICH AS JURY COULD HAVE ACQUITTED THE DEFENDANT OF ARMED ROBBERY.

 

C. AT TRIAL, THERE WAS A RATIONAL BASIS ON WHICH A JURY COULD HAVE CONVICTED THE DEFENDANT OF THEFT FROM THE PERSON.

 

We find no merit in these contentions.

In his first point, which was not raised below, defendant maintains that his right to equal protection of the law was violated by the trial court's failure to charge the jury that passion/provocation could reduce aggravated manslaughter to manslaughter. Specifically, he claims there is no rational basis for denying defendants who kill with extreme recklessness the opportunity to mitigate their crimes to second-degree manslaughter by passion/provocation, while providing defendants who commit purposeful or knowing murder that opportunity.

Initially, the State contends that defendant's argument is moot because his "aggravated manslaughter conviction was merged into his felony murder conviction, which is entirely unaffected by the issue defendant raises." Moreover, the State maintains there was no error, let alone plain error, in this case. We agree.

In State v. Grunow, 102 N.J. 133, 136 (1986), the Supreme Court considered "whether, as a matter of law, the crime of aggravated manslaughter is reduced to manslaughter when it is committed in the heat of passion resulting from a reasonable provocation." In that case, the Appellate Division found that it would lead to an absurd result if "a defendant charged with murder would be eligible to have the crime reduced to second-degree passion/provocation manslaughter but a defendant charged with the lesser offense of aggravated manslaughter would not." Id. at 138. While conceding that defendant's argument "has an inherent logic," ibid., the Supreme Court rejected the argument, reasoning as follows:

[I]n rearranging the highly complex provisions of the Code . . . the Legislature downgraded "extreme indifference" reckless homicide from murder to aggravated manslaughter . . . . The Legislature recognized a single concept of reckless homicide that constituted manslaughter, with the gradation of punishment based upon the degree of risk of death. Within this framework, the legislative scheme, as enacted, does not inevitably reflect an oversight with respect to the treatment of passion/provocation. The Legislature could have concluded, on the basis of common experience, that passion/provocation usually causes an intentional reaction and that it is rare for passion/provocation to lead to recklessness. The pre-Code analogue of passion/provocation manslaughter was referred to as "voluntary manslaughter," which typically involved an intentional killing rather than one committed recklessly.

 

Since the scheme is plausible, we are not certain that the Legislature overlooked the matter; rather, we believe that it could have concluded that the role of passion/provocation is not so much a matter of reclassifying an "extreme indifference" reckless criminal homicide as it is a means of reducing the severity of the penalty. . . . Hence, we hold on the basis of the language and structure of the act that the Code does not provide that the passion/provocation defense be invoked to reduce aggravated manslaughter to simple manslaughter.

 

[Id. at 143-44 (citations omitted).]

 

We recognize that Grunow did not explicitly address an equal protection challenge to the statute. Nevertheless, we find no valid reason to depart from its holding. To begin with, this court is bound to follow the opinions of the Supreme Court. Haber v. Haber, 253 N.J. Super. 413, 416 (App. Div. 1992). Generally, the Appellate Division should adhere to the existing law, and any departure should be undertaken by the Supreme Court. Potwora v. Grip, 319 N.J. Super. 386, 400 (App. Div.), certif. denied, 161 N.J. 151 (1999). Moreover, the rationale in Grunow is relevant to an equal protection analysis because the Court found it was not irrational for the Legislature to conclude that an offense involving an intentional state of mind (passion/provocation manslaughter) could be used to mitigate another offense requiring an intentional state of mind (murder), but not an offense requiring a reckless state of mind (aggravated manslaughter). Consequently, we find no violation of defendant's equal protection rights.

In point two, defendant contends the trial court erred in denying his motion to suppress his statements to the police because "it is abundantly clear that his request to be arrested expressed a desire that questioning end immediately." In response, the State maintains that defendant's requests to be arrested were "not remotely close to an invocation of his right to silence."

In its Miranda decision, the trial court focused on whether defendant's statement was voluntary. The trial court found that defendant was given his Miranda warnings, and that Seitz's testimony was credible. The court further found that the length of defendant's detention was not improper. It concluded that his statement was admissible because, under the totality of the circumstances, the State had "demonstrated beyond a reasonable doubt that the defendant's will was not overborne and that his statement[s] were voluntary."

The court did not consider whether defendant had invoked his right to counsel as a result of his request to be arrested because that issue was not raised by defense counsel. Nonetheless, defendant's failure to do so does not preclude him from raising that issue on appeal. State v. Bey, 112 N.J. 123, 140 (1988).

Defendant contends that his requests to be arrested constituted, at least, an equivocal invocation of his right to remain silent. A person can assert the right to remain silent by indicating "in any manner, at any time prior to or during questioning," that he or she wishes to remain silent. Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. Even an ambiguous indication of a desire to remain silent is sufficient to require that questioning cease. State v. Johnson, 120 N.J. 263, 281-82 (1990). "If the police are reasonably uncertain whether the person is asserting the right to remain silent, they may only ask questions directed to resolving that uncertainty." State v. Bruno-Taylor, 400 N.J. Super. 581, 590 (App. Div. 2008). However, "the police may continue their questioning so long as the person's words or conduct could not reasonably be viewed as invoking the right to remain silent." Ibid.

In the present matter, the record does not support defendant's claim that he invoked his right to remain silent whenever he said "arrest me." On the contrary, based on the totality of the circumstances present during defendant's questioning on August 28, 2003, it is clear that defendant voluntarily waived his right to remain silent and his right to counsel. As noted by the State, "defendant may have been momentarily agitated," but "he remained willing to talk," and neither his actions nor his words were inconsistent with his willingness to speak with the police. Accordingly, defendant's statements were properly admitted.

In his third point, defendant argues that his armed robbery and felony murder convictions should be reversed because the trial court failed to charge theft as a lesser-included offense of first-degree robbery. We do not agree.

Prior to completing the jury charge, the court asked to see counsel at sidebar, and the following colloquy occurred:

DEFENSE COUNSEL: That's fine. It was floating through my head though theft from the person.

 

THE COURT: Theft from the person, I know, I think we talked about that, I just really don't think theft from the person is in the case. It's either he did it during this or not. And that was my only concern.

 

I gave you that charge a couple of days ago. We never really talked about [it]. I think we said yesterday it really wasn't in the case.

 

DEFENSE COUNSEL: I'm just thinking that I bet they're going to have a question on, well, what if we don't think it was an armed robbery. What if we think it was self-defense but that he took the drugs and the money afterwards.

 

THE COURT: I don't know what you want me to do, what do you think.

 

PROSECUTOR: I just don't see it.

 

. . . .

 

THE COURT: There's nothing even by his own statement. He didn't say I went back and took any money.

 

DEFENSE COUNSEL: No, he doesn't.

 

THE COURT: Nothing in here to say I went back and took any money.

 

I don't think it's really in the case. I think we should leave it. I'm going to go over the verdict sheet and then I'll send them in.

 

By definition, theft is not only a lesser-included offense of robbery, it is an essential element of the offense. State v. Jordan, 240 N.J. Super. 115, 119 (App. Div.), certif. denied, 122 N.J. 328 (1990). However, a trial court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). Thus, an included offense charge is appropriate when there is a rational basis in the evidence to support such a charge. State v. Cassady, 198 N.J. 165, 178 (2009). "[S]heer speculation does not constitute a rational basis." State v. Brent, 137 N.J. 107, 118 (1994).

In State v. Lopez, 187 N.J. 91, 93 (2006), the New Jersey Supreme Court concluded that our robbery statute "does not encompass afterthought robbery," and defendant argues that a reasonable jury could have found as follows: (1) the victim demanded that defendant assume the debt of Kimberly Carr; (2) defendant refused to pay the victim; (3) a struggle between the two men took place resulting in the death of the victim; and (4) "as an afterthought, independent of and following the use of force," defendant took money and drugs from the victim. Therefore, defendant contends he was entitled to an instruction on theft as a lesser-included offense of armed robbery.

In Lopez, however, the defendant told the police that he decided to steal the victim's necklace after a physical altercation during which the victim "fell face down in the water." Ibid. Given those circumstances, there was clearly a factual basis for the jury to find that an after-the-fact theft had occurred. However, in this case, when defendant was asked if he took anything from Figueroa after the two men struggled, he answered "No," and there were no other proofs or inferences to support a theft conviction. Accordingly, we conclude defendant's request for a jury instruction on the lesser-included offense of theft was properly denied because there was no rational basis for a theft charge.

Affirmed.

 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 During his interview with Seitz, and in his written statement, defendant referred to the victim, Antonio Figueroa, as either "the Mexican" or "Forehead."