STATE OF NEW JERSEY v. CARL STOKES

NOT FOR PUBLICATION WITHOUT THE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.

CARL STOKES, a/k/a CARL SIMON

STOKES,

Defendant-Appellant.

________________________________________________________________

April 14, 2016

Argued December 1, 2015 Decided

Before Judges Fisher, Espinosa and Currier.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-08-2827.

James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief).

Camila A. Garces, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Carl Stokes was a fugitive, tried in absentia, and convicted for his participation in an armed robbery. The victim, F.W., was robbed by three assailants: a gunman, who was never apprehended, and two others who stood behind F.W. as the gunman brandished his weapon and demanded money and a gold chain. Defendant and his co-defendant, Kenneth Radcliffe, were arrested within three minutes of the robbery; defendant had F.W.'s gold chain in his pocket.

In this appeal from his convictions, defendant raises two arguments

POINT I

THE TRIAL COURT ERRONEOUSLY RULED THAT THE STATE WAS NOT REQUIRED TO GIVE REASONS FOR USING ITS FIRST EIGHT PEREMPTORY CHALLENGES TO EXCUSE MINORITY JURORS, FIVE OF WHOM WERE AFRICAN-AMERICAN.

POINT II

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT DEFENDANT COULD BE FOUND GUILTY OF A LESSER OFFENSE AS AN ACCOMPLICE, ON THE BASIS OF HIS OWN MENTAL STATE, EVEN IF THE CODEFENDANT, THE GUNMAN, OR BOTH HAD THE MENTAL STATE FOR ARMED ROBBERY, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below).

Each of these arguments is raised for the first time on appeal and is therefore subject to review for plain error. R. 2:10-2. After reviewing these arguments in light of the record and applicable legal principles, we find no reason to disturb defendant's convictions.

Defendant and Radcliffe were indicted for first-degree robbery and weapons offenses in 1994. Defendant fled the country, was a fugitive for approximately sixteen years and was apprehended in 2011. In 1995, a jury convicted Radcliffe and defendant, who was tried in absentia, of first-degree robbery, N.J.S.A. 2C:15-1 (count one), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two), and second-degree possession of a weapon, specifically a handgun, for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). Defendant was extradited and sentenced to an aggregate term of fifteen years imprisonment with a five-year parole disqualifier.

I.

To provide context, we briefly summarize the evidence and jury selection procedure.

A.

F.W. was accosted by three males when he attempted to leave a fast food restaurant. One of them stepped in front of him and revealed a gun; two others approached from behind. The gunman told F.W. "to be cool" and "give me the money." F.W. surrendered his money to the gunman, who then demanded a gold chain F.W. was wearing. The gunman started yelling to F.W. to get into the car F.W. had left running while he was in the fast food restaurant. F.W. told the gunman he could have the car. The gunman opened the door of the car and the other two men started to move away from F.W., allowing him to "get a good look" at them.

F.W. spotted a marked police vehicle and ran to it, yelling "they're robbing me." The police officers chased down the two individuals who had stood behind F.W. during the robbery, arresting them within three minutes of the robbery. The gunman ran away in the other direction. As the police restrained the two suspects, F.W. ran up to them and identified the gold chain that the officers discovered on defendant. F.W. had purchased the chain in New York and produced a receipt for the chain, which had oval circles with a line in the middle. F.W. testified that he was "positive" that the two men captured by the police were the two who stood behind him and robbed him.1

B.

Pursuant to Rule 1:8-3(d), the State was entitled to twelve peremptory challenges. The State exercised eight of those challenges, against E.R., P.J., V.L.-R., O.R., E.S., J.C., G.D. and J.B. Defendant contends that five of the jurors excused by the State were African-American. He has not identified which of the jurors were African-American and the record fails to establish that fact. Of the eight challenges exercised, defendant explicitly or implicitly acknowledges that a legitimate reason existed for five of the challenges.

Defendant has acknowledged that a legitimate reason existed for excusing E.S., who stated he could not afford to be absent from work because he would not be paid. He also observed that O.R. was employed as a teacher's assistant and E.R. worked for the Essex County Division of Welfare, both "social work" jobs that might provide a reasonable basis for excusing them.

Defendant concedes "there were specific and particular reasons" for the peremptory challenges exercised against J.C. and G.D. J.C. had one son in Northern State Prison who was convicted of drug offenses that occurred in Newark (within the same county as the instant prosecution), and another son who was convicted of conspiracy in federal court. Similarly, G.D. advised that three cousins and his brother-in-law were convicted of drug offenses committed in Newark and three remained incarcerated.

As the State proceeded to exercise its eighth challenge, against J.B., counsel for Radcliffe, Rafael Gomez Esq., asked to approach the bench with co-counsel. The following colloquy transpired

Mr. Gomez: Your Honor, may we approach with counsel?

The Court: Yes.

Mr. Gomez: Judge, I would just like to state for the record --

The Court: Is this is a Gilmore[2] application?

Mr. Gomez: Yes.

The Court: It's denied.

Mr. Gomez: Thank you, Judge. For the record --

The Court: The prosecutor out of I believe it is either 7 or 8 challenges has --

[Prosecutor]: 8 challenges.

The Court: -- has certainly had 3 which certainly has mixed most races and I also look at the composition of the remaining jurors.

[Prosecutor]: Yes.

The Court: There are 8 African-Americans. All of his challenges have not been African-Americans. Three of them have not been.

Mr. Gomez: They have been minority members.

The Court: Minority is not a recognizable group as a general classification. Certain minorities are certainly recognizable groups.

Mr. Gomez: Thank you, Judge.

Defendant's counsel did not join in the Gilmore application.

The record provides no further information as to the racial identification of the jurors excused by the State. In his brief, defendant contends that three of the jurors who were excused, P.J., V.L-R., and J.B., "must have each been either African-American or a member of another minority group." He offers no citation to the record to support this contention.

II.

Defendant first asserts that his right to trial by a fair and impartial jury was violated when the prosecutor impermissibly exercised peremptory challenges to remove jurors on the basis of their race. State v. Osorio, 199 N.J. 486, 500 (2009); Gilmore, supra, 103 N.J. at 524. He argues, "even if there were clear justifications for striking the five venirepersons [E.S., E.R., O.R., J.C. and G.D.], there were no apparent situation-specific, race-neutral reasons for the State's strikes against three other venirepersons, [P.J., V.L-R., and J.B.]." Contending that his argument should be governed by the principles articulated in Osorio, decided fourteen years after his conviction, defendant asserts once he made a prima facie showing the State exercised a peremptory challenge improperly, the State "must articulate clear and reasonably specific explanations of its legitimate reasons for exercising each of the peremptory challenges." Osorio, supra, 199 N.J. at 504 (emphasis added) (citation omitted).

This argument relies to a substantial degree on the premise that the procedure followed by the trial judge did not comport with the requirement set forth in Osorio that a contemporaneous record be made of the reasons for the peremptory challenges exercised when such a challenge is made. 199 N.J. at 504-05. We need not decide whether Osorio should be applied retroactively to defendant's trial because, in our view, defendant has failed to "tender sufficient proofs to raise an inference of discrimination" to make the prima facie showing required as a threshold matter in this analysis. See id. at 492. This conclusion is consistent with that of the trial judge, which is entitled to "substantial deference." State v. Thompson, ___ N.J. ___, ___ (2016) (slip op. at 30); State v. Clark, 316 N.J. Super. 462, 473 (App. Div. 1998).

In Gilmore, our Supreme Court articulated a three-step procedure applicable when a defendant challenges the prosecutor's use of peremptory challenges as discriminatory. 103 N.J. at 533-39. In Osorio, the Court "refine[d] slightly the methodology to be applied" as follows

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.

[Osorio, supra, 199 N.J. at 492-93 (emphasis added).]

The Court reviewed ways in which a defendant may satisfy his burden of establishing an inference of discrimination: (1) the "opponent has struck most or all of the members of the identified group from the venire"; (2) "the opponent has used a disproportionate number of his peremptories against the group"; (3) "the jurors in question share only this one characteristic--their membership in the group--and that in all other respects they are as heterogeneous as the community as a whole"; (4) "the opponent failed 'to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all'"; and (5) whether the defendant, "and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong." Id. at 503-04 (quoting Gilmore, supra, 103 N.J. at 536).

The Court did not retreat from the requirement articulated in Gilmore that "the defendant must timely object to the prosecution's use of peremptory challenges -- during or at the end of the jury selection, but before the petit jury is sworn." See Osorio, supra, 199 N.J. at 501 (quoting Gilmore, supra, 103 N.J. at 535). The Court reiterated this requirement in Thompson, supra, ___ N.J. at ___ (slip op. at 34) (citation omitted) ("As emphasized in Gilmore, supra, we require a defendant's timely objection to the prosecution's use of peremptory challenges in order to facilitate the development of as complete a record of the circumstances as is feasible, as well as enabling the trial court to make a fairer determination.").

As we have noted, no timely objection was made on behalf of defendant at trial. Although the issue was raised by counsel for his co-defendant, defendant's attorney did not join in the argument or make any comments about the make-up of the jury or the prosecutor's use of peremptory challenges. Because it is a reasonable inference that defendant's attorney acquiesced in the prosecutor's use of peremptory challenges, the failure to pursue the Gilmore issue further is one that is "ordinarily . . . not a basis for reversal on appeal." State v. A.R., 213 N.J. 542, 561 (2013) (citation omitted). In any case, the record here is insufficient to support the argument that the prosecutor engaged in unconstitutional discrimination in his use of peremptory challenges.3

In Thompson, the Court reviewed its holding in Osorio, stating,

[A] proper Gilmore analysis must include a careful weighing of whether the reasons proffered for the challenges were applied even-handedly to all prospective jurors, against a consideration of the overall pattern of the State's use of peremptory challenges and the composition of the jury ultimately empaneled. This analysis presumes that a defendant will present information beyond the racial makeup of the excused jurors.

[Thompson, supra, ___ N.J. at ___ (slip op. at 37) (emphasis added).]

The Court acknowledged that "the analysis ends if the trial court finds that defendant failed to meet his initial burden of establishing a prima facie case of purposeful discrimination." Id. at ___ (slip op. at 34-35).

As a preliminary matter, the record is less than clear regarding the racial makeup of the excused jurors. According to the trial judge, five of the eight challenges were to African-Americans and three were not to African-Americans. There were eight African-Americans who remained on the jury. Thus, the record fails to show that the State "struck most or all of the members of the identified group from the venire." Gilmore, supra, 103 N.J. at 536 (citation omitted). In fact, the State did not exhaust its peremptory challenges, leaving the eight African-Americans noted by the court on the jury. Because the record fails to identify the racial make-up of the individual jurors challenged, there is no way to determine whether the State used a disproportionate number of its challenges against African-Americans, whether the jurors in question share only their membership in the group, and whether the defendant or the victim is "a member of the group to which the majority of the remaining jurors belong." Ibid. (citation omitted).

However, the most telling deficiency in defendant's proofs is one that, to his credit, defendant acknowledges. Even without a contemporaneous record of the prosecutor's reasons, the record provides legitimate reasons for the exercise of five of the eight peremptory challenges.

In summary, defendant did not make a timely objection as required. "[S]ufficient proofs to raise an inference of discrimination," Osorio, supra, 199 N.J. at 492, required "information beyond the racial makeup of the excused jurors." Thompson, supra, ___ N.J. at ___ (slip op. at 37). But, his proofs fall short even as to that. Only three challenges lack some evidentiary support for a legitimate reason. As to those jurors, defendant can only surmise the racial make-up of the excused jurors. Because defendant failed to establish a prima facie case of purposeful discrimination, "the analysis ends." Id. at ___ (slip op. at 34). Accordingly, the court's denial of the Gilmore application made by the co-defendant was not "clearly capable of producing an unjust result" as to defendant. R. 2:10-2.

III.

Defendant next contends the trial court committed plain error in its instruction on accomplice liability. Citing State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), defendant argues the jury should have been charged that an accomplice may have a different state of mind or intent than the principal and may therefore be culpable for a lesser offense. This argument lacks sufficient merit to warrant discussion in a written opinion beyond the following comments. R. 2:11-3(e)(2).4

In Bielkiewicz, we stated, "a jury must be instructed that to find a defendant guilty of a crime under a theory of accomplice liability, it must find that he shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act." Bielkiewicz, supra, 267 N.J. Super. at 528 (citation omitted). The trial court charged the jury in language that mirrors the appropriate statute and the model jury instructions that existed at the time of trial

[O]ne cannot be held to be an accomplice unless you find as a fact that he possessed the same criminal state of mind, for example, purposeful, that is required to be proved against the person who actually committed the act. An accomplice may be convicted on proof of the commission of a crime or of his complicity therein, though the person who it is claimed committed the crime has not been prosecuted or convicted or has been convicted of a different offense or degree of offenses or has an immunity from prosecution or conviction or has been acquitted. However, one cannot be held to be an accomplice unless you find that he possessed the same criminal state of mind that is required to be proved against the person who actually committed the criminal act.

In order to convict a defendant as an accomplice to the crime charged you must find that the defendant had the purpose to participate in that particular crime. He must act with purpose of promoting or facilitating the commission of the substantive offensive with which he's charged.

There was no evidence here to support a finding that defendant's purpose was anything other than to participate in the commission of a robbery. Along with his co-defendant, he stood behind F.W. as the gunman made his demands. Minutes later, he was apprehended by the police with the victim's gold chain in his pocket. The instruction given suffers from no infirmity.

Affirmed.

1 At trial, Radcliffe testified he was not involved in the robbery and did not know defendant. He was convicted of all charges.

2 State v. Gilmore, 103 N.J. 508 (1986).

3 Although it is only a matter of academic interest, we observe that Radcliffe did not raise this issue on appeal despite the fact it was his attorney who made the challenge at trial.

4 Among the issues Radcliffe raised in his appeal were that the trial court committed plain error in its instruction on accomplice liability. We affirmed. State v. Radcliffe, No. A-5951-94 (App. Div. May 9, 1997), certif. denied, 151 N.J. 77 (1997).