State v. ChildsState v. Childs
This matter comes on before this court on defendants’ appeals from judgments of conviction in a criminal case arising frоm an armed robbery by defendant Frederick Childs of a Kaufman Carpet store in Greenbrook, New Jersey. Defendant Rose Marie Ketchum was the operator of the vehicle in which Childs fled from the scene. Defendants jointly appealed but after a substitution of attorney was filed for Ketchum we severed the appeals. We now consolidate the appeals for purposes of decision.
The indictment returned in Somerset County charged both defendants in the first count with first degree armed robbery,
At a pretrial hearing the court, though precluding the use of one conviction, ruled that four other prior convictions of Childs could be used against him for impeachment purposes under State v. Sands, 76 N.J. 127 (1978). At the ensuing jury trial Childs was found guilty of armed robbery, unlawful possession of a handgun with an unlawful purpose, simple assault as a lesser included offense under the third count and unlawful possession of snub-nosed bullets. He was found not guilty of the unlicensed acquisition of a handgun and the two charges of aggravated assault on the police officers. Count four was severed and thus was not submitted to the jury. Ketchum was found not guilty of armed robbery but guilty of the lesser included offense of hindering the apprehension of an individual,
As a result of the acquittals and mergers Childs was sentenced only on the first and eighth counts. On the first count he was sentenced to an extended term of 50 years with a 25 year period of parole ineligibility. On the eighth count he was sentenced to a concurrent term of 18 months. Ketchum was sentenced to an indeterminate term not to exceed five years. Both defendants were assessed appropriate penalties for the use of the Violent Crimes Compensation Board.
The following evidence was developed at the trial. On September 5, 1983 four employees were present at the Kaufman Carpet store in Greenbrook when a man, later identified by two of them as Childs, entered the store at about 7:15 p.m. The store was well lit аt that time. Childs told one of the employees, John Goleskie, who was on the telephone to put it down. Childs then pulled the telephone from Goleskie‘s hands after
After Childs left the store Mayers went to the front door and was able to see a white El Dorado with out-of-state license plates on the shoulder of Route 22 pulling into traffic. He saw no othеr vehicle pulling out. Mayers yelled this description of the car to LePre who was already on the telephone with Greenbrook police and LePre passed the description onto the police. At that time Patrolman Schultz of the North Plainfield police, while on routine patrol, heard the radio description of the white El Dorado. He saw a car drive by him matching that description driven by a female with a man crouched down in the passenger seat. Shultz pulled the car over. Other police arrived and Ketchum, the driver, and Childs, the passenger, were detained. Kaufman employees Goleskie and Mayers were brought to the scene and within 10 or 15 minutes after the robbery identified Childs as the man who had robbed them, an identification they repeated at the trial. When Childs was stoppеd, he was wearing the same clothes he had been wearing during the robbery. Defendants were arrested but a search of the immediate vicinity and a pat down of Childs produced no weapons.
Defendants were taken to the police station. In a strip search the police recovered four $50 bills from Ketchum‘s bra and $122 from her purse. The police had difficulty in searching Childs. Obviously they were cоncerned about the weapon so when none was found a body cavity search was ordered, a procedure to which Childs vehemently objected. There was a brawl after the police attempted to disrobe Childs and it took six or seven police officers, one using a blackjack, to subdue
Childs and Ketchum testified in their own defense. Childs said he and Ketchum were driving from Phillipsburg to East Orange, returning to a party. At the time they were stopped he had been drinking and was dozing, slumped in the front passenger seat. He denied being the robber and said he never had a weapon. Ketchum corroborated Childs’ testimony.
On this appeal Childs contends:
POINT I — APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL‘S FAILURE TO EFFECT PARTICULAR INVESTIGATORY MEASURES WHICH WOULD HAVE UNCOVERED CONCLUSIVE EXCULPATORY EVIDENCE. (Not raised below).
i. Applicable Law.
a. The Roots Of The Right To Effective Counsel.
b. United States v. Cronic and Strickland v. Washington.1
ii. Appellant Was Clearly Denied Effective Assistance of Counsel Within The Guidelines Set Forth In Strickland and Cronic.
POINT II — EXCLUSION OF APPELLANT FROM CRITICAL STAGES OF THE TRIAL IMPAIRED HIS ABILITY TO EFFECTIVELY PARTICIPATE IN HIS DEFENSE AND REQUIRES THE GRANT OF A NEW TRIAL. (Not raised below).
i. Factual Background.
ii.
R. 3:16 And The Law As To Presence At Trial.iii. Exclusion of Appellant From The Courtroom During Jury Communications Resulted In Clear Prejudice.
POINT III — THE TRIAL COURT ERRED IN INSTRUCTING THE HUNG JURY MERELY TO CONTINUE ITS DELIBERATIONS WITHOUT ANY FURTHER GUIDANCE. (Not raised below). POINT IV — APPELLANT CHILDS’ PRIOR CONVICTIONS SHOULD HAVE BEEN EXCLUDED.
Ketchum raises the following points:
POINT I — THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL‘S MOTION FOR A MISTRIAL BASED UPON THE PROSECUTION‘S ELICITATION OF HIGHLY PREJUDICIAL INFORMATION TO THE JURY IMPLYING THE DEFENDANT‘S INCARCERATION.
POINT II — THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING A CUSTODIAL SENTENCE DESPITE THE APPARENT APPLICABILITY OF THE PRESUMPTION OF NON-INCARCERATION.
Childs’ contention with respect to the ineffective counsel is derived from his allegations that he asked his attorney to take steps to develop еvidence that would exculpate him. He asserts in his brief that he asked his trial counsel to obtain fingerprints of the telephone the robber grabbed, the gun allegedly recovered from him and the money taken from him and Ketchum. He apparently thought that his fingerprints would not have been found on the telephone or gun and the store employees’ fingerprints would not be found on the money. He also asserts that he asked his attorney to ascertain the identity of the ambulance attendant present when the weapon was recovered.
The standard for the effective assistance of counsel was set forth recently in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There the Supreme Court said that the defendant‘s attorney has a “... duty to make reasonable investigations or make a reasonable decision that makes partiсular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.” 466 U.S. at ___, 104 S.Ct. at 2064, 80 L.Ed. at 695. The court further indicated there is a “strong presumption” that counsel‘s conduct was “within the wide range of reasonable professional assistance[.]” 466 U.S. at ___, 104 S.Ct. at 2066, 80 L.Ed.2d 20 at 694. To overcome this presumption a
On the record here Childs’ claim of ineffective counsel must fail. Firstly, there is no support in the record for Childs’ contention that he asked his attorney to take certain steps. In his brief he makes these allegations without reference to the record and at oral argument his attorney agreed the record would not support his assertions. But even if we assume that counsel on his own should have done the things Childs has mentioned and did nоt do so, or even if Childs asked him to undertake the steps he outlines, we cannot possibly say the attorney‘s failure to do so impacted on the verdict. It would be a complete speculation to suggest what fingerprints would have been found. Further, it is doubtful that the absence of the employees’ prints on the money or Childs’ on the weapon or telephone would have been of probative value in view of the probability of obliteration of fingerprints during the passage of time. Additionally, we have no way of knowing what the ambulance attendant saw or did not see. We are satisfied that Childs’ claim of ineffectiveness of counsel is meritless and thus must be rejected.
Childs’ issue with respect to the jury continuing their deliberations after they reported an impasse is based on a note the jury sent to the judgе during the second day of deliberations reciting: “We have reached a verdict for counts five and six. However, we could not reach agreement on count one, and thus, could not proceed to counts two, four, seven and three.
Childs asserts this instruction was plainly erroneous as the note indicated the judge thought he was guilty and that the jurors in favor of acquittal should thus compromise their votes. He cites United States v. Benavides, 549 F.2d 392 (5 Cir.1977) in support of his contention. There the court in response to a note from the jury stating it could not reach a verdict told the jury to “Take a recess and consider the offense further,” a resрonse the court of appeals disapproved on the basis that it implied the trial judge thought the defendant was guilty. Id. at 393. Further Childs contends that more guidance should have been given to the jury in response to its inquiry.
We see no error in what the court did. Certainly a trial judge has discretion to return the jury for further deliberation after they announce their inability to arrive at a verdict. State v. Pontery, 19 N.J. 457, 477 (1955). This court has stated: “... a court may sеnd a jury back for further deliberations when it is not satisfied that all possibilities of reaching a verdict have
The judge upon receipt of the note did not have to conclude a verdict could not be reached. All the jury told him was that at that time it could not reach a verdict. It certainly did not state that it would never reach a verdict. Further, as the trial judge indicated, it had not deliberated extensively. We point out that the jury had heard two full days of testimony and was charged on many counts including numerous possible lesser included offenses. Obviously this was a complicated matter. Extended deliberations were to be expected.
We see no merit to Childs’ contention that the trial judge coerced the jury. He simply told it to continue to deliberate. Clearly the judge‘s handling of the situation was entirely neutral and did not violate the mandate of State v. Czachor, 82 N.J. 392 (1980). See State v. Hozer, 19 N.J. 301, 314 (1955). We also point out that this note was the first communication from the jury indicating it was deadlocked. In such a circumstance requiring further deliberations seems particularly appropriate, especially in view of the fact that the jury had already reached a partial verdict. Finally we point out that after the jury was instructed to continue its deliberations it did so for four hours before it reached a verdict, thus rebutting any suggestion that the jury was coerced by the judge. See State v. Young, 181 N.J. Super. 463, 473 (App.Div. 1981), certif. den. 91 N.J. 222 (1982). Indeed the verdict may be regarded as favorable to Ketchum and thus certainly not reflective of coercive conduct by the judge.
Childs asserts that he was not present in the courtroom when the proceedings arising from the note from the jury were undertaken. He claims that by reason of his absence and his inability to confer with his attorney there was a violation of
We preliminarily point out that while it certainly would have been good practice to have Childs present when the judge acted on the note, we do not believe defendant‘s presence was required. See State v. Trent, 157 N.J. Super. 231 (App.Div. 1978), rev‘d other grounds 79 N.J. 251 (1979). The proceeding did not involve the receipt of evidence or the confrontation of witnesses. Rather it was a strictly legal matter and there is no indication that his attorney thought his presenсe necessary. Further we do not entertain the slightest doubt regarding the appropriateness of what the court did. While it does appear that the trial judge had some question regarding the course to follow we are convinced from our reading of the record that this question was attributable largely to the judge‘s desire to be fair to the parties and be courteous to the attorneys.
But even if we assume that Childs should have been present when the court acted on the note we see no reason to reverse. There is no question but that Childs was convicted at an otherwise error free trial by a noncoerced jury. Thus the only prejudice which Childs can attribute to the judge‘s requirement of further deliberations is that he was denied the chance of obtaining a mistrial. Indeed Childs admits this in his brief becausе he contends that the partial verdict should have been accepted and a mistrial declared on the rest of the case. He then argues if that had happened, he might not have been retried or he could have negotiated a favorable disposition. But the purpose of a trial is to obtain a verdict not a mistrial, and thus Childs asks us to protect his interest in obtaining a result to which he was not entitled. In short, Childs obtained exactly the type of termination of the trial to which he had a right, a verdict based on the evidence. Under the circumstances he was
Childs’ contention regarding his right to be present at all times at the trial thus raises an issue different in nature than an alleged error going to the integrity of the fact-finding process. See, e.g., State v. R.W., 200 N.J. Super. 560 (App.Div. 1985), certif. granted ___ N.J. ___ (1985). It also differs from a case in which a defendant asserts a constitutional right which, though not undermining the reliability of the result at a trial, implicates other values thought to be important in themselves. For example, while illegally seized property may be perfectly reliable as evidence, the interest protected by the exclusionary rule, the right of a person to be free from unreasonable searches and seizures, is so significant it must be protected even at the cost to the public of obtaining an unreliable result at trial оr dismissal of a case. See State v. Ercolano, 79 N.J. 25, 37-38 (1979). By contrast the right to be present at the trial is important because a defendant‘s presence at the trial will permit him to assist in his defense. Tennessee v. Street, 471 U.S. ___, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934, 937 (1965); United States v. Johnson, 129 F.2d 954, 958 (3 Cir.1942), aff‘d 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943). But here Childs has advanced the argument that he should have been present not to aid in his defense but rather because in his view had he been present the purpose of the trial could have been frustrated. What he argues for, therefоre, is not a right to a reliable verdict but rather a right that no verdict at all be reached. As he had no right to such a result we regard the error, if there was one, as being harmless beyond a reasonable doubt and accordingly not entitling him to a new trial. See State v. Collier, 90 N.J. 117, 123-124 (1982).
Ketchum‘s contention that her motion for a mistrial should have been granted because the prosecutor mentioned she was in custody arose from the following circumstances. During her direct and cross-examination she referred to keeping money inside her bra because money had been taken from her since “I have been here.” This reference apparently was to theft from her after she moved to New Jersey. The prosecutor later asked her: “[y]ou stated that you started keeping money in your bra because money has been taken since yоu have been here. You mean in custody?” Defense counsel immediately objected and then moved unsuccessfully for a mistrial. Even though the judge thought that the jury should not know Ketchum was in custody, he viewed the statement as too insignificant to grant a mistrial.
We see no error in this ruling. The granting of a mistrial is within the sound discretion of the trial judge and should be done only to avoid manifest injustice. State v. DiRienzo, 53 N.J. 360, 383 (1969). Further, in our review we should not reversе on the basis of the denial of the motion unless the ruling was clearly capable of producing an unjust result. State v. LaPorte, 62 N.J. 312, 318 (1973);
Ketchum contends that the trial judge should have issued a curative instruction. See State v. Winter 96 N.J. 640 (1984). While this may be so, the difficulty with the contention is that none was sought. Thus Ketchum can hardly complain about this failure to charge now. In any event we think the entire matter is not significant in view of the totality of the evidence in the case.
We have carefully considered Ketchum‘s sentence and are satisfied the court did not err in imposing a custodial sentence on her. See State v. Roth, 95 N.J. 334 (1984).
Affirmed.