STATE OF NEW JERSEY v. KENDELL GRIMSLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENDELL GRIMSLEY, a/k/a

KENDALL GRIMSLEY, SHAWN HELTON,

KEITH GRIMSLEY, and

KENDAL GRIMSLEY,

Defendant-Appellant.

September 28, 2015

Submitted September 16, 2015 Decided

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-02-0115.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried by a jury over four days, defendant Kendell Grimsley, also known as Kendall Grimsley, Shawn Helton, Keith Grimsley, and Kendal Grimsley, was convicted of second-degree robbery, N.J.S.A. 2C:15-1 (count one), a charge which, for purposes of trial, had been severed from the other offenses enumerated in Union County Indictment No. 11-02-0115. He thereafter entered a guilty plea to third-degree burglary, N.J.S.A. 2C:18-2 (count three). The remaining charges against him were dismissed.1

On March 21, 2014, the trial judge granted the State's application to sentence defendant as a persistent offender, N.J.S.A. 2C:44-3(a), and imposed a ten-year term of incarceration on the robbery conviction subject to eighty-five percent parole ineligibility as called for by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Pursuant to the negotiated agreement, the judge imposed a concurrent term of five years imprisonment, subject to one and one-half years of parole ineligibility on the burglary. Defendant appeals and we affirm.

I

The following facts and circumstances are drawn from the trial transcripts and motion hearings, and other documents comprising the record on appeal. On September 19, 2010, at approximately 10:00 p.m., S.M. was unloading groceries in a well-lit parking area in front of her apartment building when a vehicle pulled in next to her. A man briefly stepped out of the car and she exchanged a few words with him. He said "she's not here" and got back in the vehicle. S.M. resumed emptying her trunk when she felt a "tremendous pull" on her purse, like "someone ripped my arm off[.]" She turned and saw the man she had spoken to, whom she later identified as defendant, "tugging and tugging[.]" S.M. was dragged to the ground while defendant continued to tug at her purse; he was eventually able to pull it away and jumped back into the vehicle. As a result of the encounter, S.M.'s arm was badly bruised, she scraped her left elbow, and ripped her pants. The car drove off slowly enough that S.M. was able to note the make and license plate number and provide the relevant information to the Hillside Police Department. The robbery was witnessed from a distance of five to ten feet by an acquaintance of S.M., J.M., and by J.M.'s husband.

Two days later, on September 21, 2010, defendant and his co-defendants were arrested in the same car employed in the robbery. While there was some confusion in the record regarding the make of the vehicle, it is undisputed that the 1996 Pontiac Bonneville in which the men were found, bearing the same license plate number as S.M. reported, had been stolen. Located inside was S.M.'s flash drive, which she had kept in her purse.

On September 23, 2010, S.M. identified defendant from a photographic array. J.M. too selected defendant's photograph from a September 30, 2010 array. Both she and the victim identified defendant at trial as the robber.

During the jury charge, the trial judge omitted the final page of the robbery model charge, which states

Should you find that the State has failed to prove any one of these elements of the crime of robbery beyond a reasonable doubt, you must return a verdict of not guilty of robbery. If you find the State has proved every one of the elements of the crime of robbery, then you must find the defendant guilty as charged.

[Model Jury Charge (Criminal), "Robbery In The Second Degree" (2009).]

The omission occurred a second time when the judge, at the jury's request, recharged the panel.

While explaining the State's burden in his closing charge, the judge instructed

[u]nless each and every essential element of the offense charged is proved beyond a reasonable doubt, the defendant must be found not guilty of that charge. The burden of proving each element beyond a reasonable doubt rests upon the State and that burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his innocence or even offer any proof relating to his innocence.

[See Model Jury Charge (Criminal), "Instructions After Jury Is Sworn" (2012).]

When he charged the jury regarding identification, the judge reiterated: "you must determine, therefore, not only whether the State has proven each and every essential element of the offense charged beyond a reasonable doubt but also whether the State has proven beyond a reasonable doubt that this defendant is the person who committed it." SeeModel Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2012). Additional language in that instruction, which he read to the jury, provides: "you will then consider whether the State has proven each and every essential element of the offense charged beyond a reasonable doubt." See ibid.

The judge also instructed the jury regarding the lesser-included offense of third-degree theft from the person, N.J.S.A. 2C:20-3(a) and N.J.S.A. 2C:20-2(b)(2)(d), and stated that "if you find that the State has proven all three elements beyond a reasonable doubt, [] you must find the defendant guilty. If you find the State has failed to prove any of the elements beyond a reasonable doubt, you must find the defendant not guilty." See Model Jury Charge (Criminal), "Theft of Movable Property" (2008).

Prior to the imposition of sentence, defendant unsuccessfully moved for a new trial. He argued that the jury's verdict was against the weight of the credible evidence, and that the verdict should be vacated because of the State's violation of the principles enunciated in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

In support of the Brady argument, defendant provided the court with an investigation report dated August 19, 2013, summarizing a video conference interview with Abdul-Malik, a codefendant on the charges other than robbery. In the interview, Abdul-Malik alleged that in April 2013, before the trial, he met with two representatives from the Union County Prosecutor's Office. He claimed he then told them it was impossible for defendant to have been involved in the robbery because the day all three men were arrested in the stolen car "was the first and only day they were in possession of the vehicle." Abdul-Malik further alleged that the prosecutor's investigators became angry when he told them this, accused him of "lying," and left.

Abdul-Malik further claimed that when defendant told him that he had been convicted, he wrote back informing him of the prosecutor's office interview and advising him that he would be willing to sign an affidavit and testify in court that it was impossible for defendant to have been in the stolen car prior to the day they were arrested. After the video conference interview with Abdul-Malik, defendant's attorneys interviewed him again. He repeated that it was impossible for defendant to have been involved in the robbery as the men had only been "in possession of the car for about [an] hour." He also described how he and Grimsley obtained the vehicle, which he alleged had been stolen by others. Once he and Grimsley had possession of the car, they stopped by Grimsley's home where defendant happened to be waiting for a ride to Costco. Abdul-Malik claimed the three were arrested as they gave defendant a lift to Costco.

On September 9, 2013, a Union County prosecutor's detective authored a memorandum summarizing his earlier May 15, 2013 interview with Abdul-Malik. He stated that Abdul-Malik denied being in the car on September 19, the night of the robbery, claiming that he was in the car only on the following day, the day of the arrest. Abdul-Malik also suggested the detective contact his sister to confirm his whereabouts on the evening of the robbery. He said nothing whatsoever regarding defendant.

The judge's March 10, 2014 written decision on the motion for a new trial concluded that the jury's verdict was not against the weight of the evidence and the prosecutor did not violate Brady because he did not withhold clearly exculpatory evidence. With regard to the Brady violation, the judge found that because Abdul-Malik only talked about himself when interviewed by the prosecutor's detective, the interview was not material. It would not have made a difference to the outcome of the trial. He found no merit in defendant's weight of the evidence argument because although there were some very minor discrepancies between the victim's initial description of the robber and his actual appearance, both S.M. and J.M. subsequently and independently identified him from properly conducted photo arrays. In addition, defendant was arrested in the vehicle used during the robbery. Therefore, the judge concluded no Brady violation had occurred and that there was ample evidence to support the jury's verdict.

II

Defendant makes the following arguments on appeal

POINT I

THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON A BRADY V. MARYLAND VIOLATION -- THE STATE'S FAILURE TO TURN OVER IN DISCOVERY EVIDENCE THAT ONE OF THE MEN ARRESTED WITH DEFENDANT HAD GIVEN A STATEMENT TO POLICE THAT WAS EXCULPATORY OF DEFENDANT -- SHOULD HAVE BEEN GRANTED.

POINT II

THE JURY INSTRUCTION ON ROBBERY, AND ALSO THE RE-INSTRUCTION ON THAT SAME COUNT, OMITTED A CRITICAL PART OF EVERY JURY INSTRUCTION ON A SPECIFIC CRIME -- THE PORTION OF THE INSTRUCTION WHERE THE JUDGE EXPLAINS THAT A FINDING OF ALL THE ELEMENTS THAT WERE JUST ENUMERATED SHOULD RESULT IN A GUILTY VERDICT AND THAT, CONVERSELY, A FAILURE TO FIND ANY ONE OF THOSE ENUMERATED ELEMENTS SHOULD RESULT IN AN ACQUITTAL. (NOT RAISED BELOW).

As to defendant's first point, the allegedly withheld statements Abdul-Malik made to the prosecutor's detective were not exculpatory and were entirely different in nature than the two statements he later gave to defendant's investigator. Even those two statements changed, to defendant's benefit, between the first and the second interview. When the prosecutor's investigator met with Abdul-Malik, he simply said nothing about defendant at all. Thus the record does not support the contention that the statement made to the detective was exculpatory as to defendant.

Furthermore, no Brady violation can be found to have occurred where the information allegedly withheld by the prosecution was in the possession of the defendant. See, e.g., State v. Martini, 160 N.J. 248, 270 n.5 (1999) (without reaching the issue, the court observed that in the United States Circuit Court of Appeals, an accused must be unfamiliar with the evidence allegedly withheld before a Brady violation can be found).

Even if we assume Abdul-Malik's later statements were true, defendant would certainly have known that the first time he was in the robbery getaway car was two days after it occurred. He would have been aware that his codefendants could verify that fact, and the fact that his presence in the car at the time of arrest was innocent. He could not be prejudiced by the purported failure to disclose the interview if he had the relevant information and the State did not.

The doctrine is intended to protect defendants prejudiced when information is kept from them wrongfully. Ibid. In this case, however, defendant would have known the information if true. And the State cannot be charged with withholding information it never possessed. This argument is so lacking in merit as to not warrant further discussion in a written opinion. R. 2:113(e)(2).

III

Defendant did not object to the court's jury charge at the time it was given to the jury. Thus we review his second point of error under the plain error rule. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result.").

Clearly, proper charges are essential for a fair trial. See State v. Green, 86 N.J. 281, 287 (1981). They are poor candidates for rehabilitation. State v. Simon, 79 N.J. 191, 206 (1979). Such errors are excused only if determined to be "harmless beyond a reasonable doubt." State v. Collier, 90 N.J. 117, 123 (1982) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 711 (1967)).

Claims of error in the jury charge must be reviewed, however, not in isolation but after consideration of the charge as a whole to determine the overall effect. State v. Wilbely, 63 N.J. 420, 422 (1973) (citing State v. Council, 49 N.J. 341 (1967)). Additionally, appellate review "must not lose sight of the distinction between instructions that are legally incorrect and those that are merely 'capable of being improved.'" State v. Cagno, 211 N.J. 488, 514-15, cert. denied, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2012) (quoting State v. Delibero, 149 N.J. 90, 106 (1997)).

It is undisputed that the court unintentionally omitted the final language in the robbery model jury charge which informs the jury that the State must prove each and every element of the statutory offense before a defendant can be convicted and advises them that the State's failure to do so must result in an acquittal. But four times during the final jury charge, including in the lesser-included theft instruction read immediately following the erroneous charge, the judge informed jurors that unless each and every element of the offense was proven, defendant had to be acquitted. Thus, although the omission was an error, it was harmless. It was a mistake which did not make the instructions overall legally incorrect. The omitted section of the charge was conveyed to the jury on several other occasions. The jury could not have mistaken their responsibility while deliberating. We therefore conclude the jury charge overall presented a fair, clear, and accurate statement of the law. It is not plain error which compels us to reverse defendant's conviction.

Affirmed.

1 Dandel M. Grimsley and Mateen S. Abdul-Malik, also known as Mateen S. Malik, were named as co-defendants in counts two, three, four, and five. Those charges related solely to their presence in a stolen car at the time of their eluding and subsequent arrest, and they were not charged with robbery. Defendant and Grimsley were also named as co-defendants in count thirteen. Grimsley alone was named in seven additional counts of the indictment. Only defendant was charged with robbery.