STATE OF NEW JERSEY v. ANGEL NUNEZ-HERNANDEZ (16-07-0516, UNION COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0539-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANGEL NUNEZ-HERNANDEZ,
Defendant-Appellant.
_____________________________
Submitted March 8, 2022 – Decided March 24, 2022
Before Judges Fisher, Currier, and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 16-07-0516.
Joseph E. Krakora, Public Defender, attorney for
appellant (David J. Reich, Designated Counsel, on the
brief).
William A. Daniel, Union County Prosecutor, attorney
for respondent (Milton S. Leibowitz, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Angel Nunez-Hernandez, and two others, 1 were charged with
first-degree robbery, N.J.S.A. 2C:15-1, second-degree conspiracy to commit
robbery, N.J.S.A. 2C:5-2, and other offenses arising from a holdup of a gas
station in Rahway at approximately 1:00 a.m., on April 10, 2016. After the
denial of defendants' motions to suppress physical evidence and statements
made to police, the three were tried together. Defendant Nunez-Hernandez was
acquitted of first-degree robbery but convicted of the lesser-included offense of
third-degree theft, N.J.S.A. 2C:20-2(b)(2), and convicted of second-degree
conspiracy to commit robbery, fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d), and third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d). After the denial of defendant's motion for a new
trial – based on the argument that the judge should have but failed to charge the
jury on the offense of conspiracy to commit theft – and after merging the theft
conviction into the conspiracy conviction – defendant was sentenced to a nine-
year prison term, with an eighty-five percent period of parole ineligibility.
Lesser concurrent terms were imposed on the weapons convictions.
1
The appeals of the other two defendants – Jose Mena (A-3508-18) and Mario
Cabrera-Pena (A-3678-18) – are disposed of by way of separate opinions also
filed today.
A-0539-19
2
Defendant appeals, arguing 2:
I. THE TRIAL COURT ERRED IN DENYING THE
MOTION TO SUPPRESS BECAUSE THERE WAS
NO REASONABLE SUSPICION FOR THE STOP.
II. THE TRIAL COURT ERRED IN CONCLUDING
THAT SUPPRESSION OF THE EVIDENCE SEIZED
DURING THE UNLAWFUL PROTECTIVE SWEEP
WAS NOT REQUIRED BECAUSE THE
DISCOVERY OF THE EVIDENCE WAS
INEVITABLE.
III. A NEW TRIAL IS REQUIRED BECAUSE THERE
IS A SUBSTANTIAL POSSIBILITY THAT THE
COURT'S HANDLING OF THE JURY DELIBER-
ATION PROCESS RESULTED IN A VERDICT
BASED ON EXTRANEOUS CONSIDERATIONS IN
VIOLATION OF [DEFENDANT'S] CONSTITU-
TIONAL RIGHT TO A UNANIMOUS VERDICT
BASED SOLELY ON THE EVIDENCE AND THE
LAW.
IV. A REVERSAL IS REQUIRED IN VIEW OF THE
PLAIN ERROR COMMITTED BY THE COURT IN
FAILING TO CHARGE THE LESSER-INCLUDED
OFFENSE OF CONSPIRACY TO COMMIT THEFT.
V. A REMAND FOR RESENTENCING IS
NECESSARY IN VIEW OF RECENT LEGISLATION
AUTHORIZING A SENTENCING JUDGE TO
TREAT THE AGE OF DEFENDANT LESS THAN 26
AS A MITIGATING FACTOR.
2
We have rearranged the order of defendant's arguments from how they appear
in his brief.
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We find insufficient merit in defendant's fifth point because his argument relies
only on an incorrect assumption that the new mitigating factor codified at
N.J.S.A. 2C:44-1(b)(14) applies retroactively. See State v. Bellamy, 468 N.J.
Super. 29, 43-48 (App. Div. 2021).
With that, we turn to defendant's other four arguments.
I
Defendant first argues that the trial judge erred in denying his motion to
suppress evidence seized from a motor vehicle he occupied shortly after the
hold-up of the Rahway gas station because, in defendant's view, police lacked
reasonable suspicion to stop the motor vehicle.
Based on evidence presented at the suppression hearing, the judge found
that Officer Donald Dayon responded to an alarm from the gas station on St.
Georges Avenue. On arriving, he encountered Officer Douglas Botti, who was
speaking with Ravinder Singh, a gas station attendant. Singh advised that he had
just been held up at knifepoint by two men. He described one of the perpetrators
as tall, "fat," and white or light-skinned, and the other as a short, thin black man.
Both were wearing hooded sweatshirts, one dark and one of a lighter color.
According to Singh, the two perpetrators ran off on foot in a westerly direction
on Inman Avenue, which intersects with St. Georges Avenue. Officer Dayon
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drove off in that direction, using his spotlight to illuminate the surroundings. He
soon encountered a silver Honda parked on Inman Avenue facing east toward
the gas station on St. Georges Avenue.
Officer Dayon observed three men inside the vehicle. The backseat
passenger, later identified as Jose Mena, appeared to be a large male 3 wearing a
black hooded sweatshirt. The driver, later established to be defendant, was a
thin, light-skinned male also wearing a dark hooded sweatshirt. The front-seat
passenger, later determined to be Mario Cabrera-Pena, was a dark-skinned male
wearing a gray hooded sweatshirt; he was described by Officer Dayon as being
thinner than the backseat passenger.
According to Officer Dayon, the three men stared at him "intently, like
very nervously" as he drove past, and that each man swiveled his head to watch
as he made a U-turn and pulled up behind the Honda. Dayon was interested in
investigating these men further with regard to the gas station hold-up because
of "the demeanor of the way they were looking at [him] and the fact that [there
were] three males with . . . hoodies on, a larger male, a thinner male in the
vehicle." After pulling up behind the Honda, Officer Dayon activated the
3
Dayon testified the backseat passenger was "heavy set" and so large "he was
taking up the [back] window."
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overhead lights on his patrol car and radioed his location and the Honda's license
plate number to other officers. He remained in his patrol car until other officers
arrived. While waiting, Officer Dayon observed the three defendants in the
Honda and described their movements:
[T]hey started moving around all over the vehicle. The
individual in the back seat [Mena] was reaching down.
He was moving around back and forth as if he was
moving stuff in the car. The individual in the front
passenger seat [Cabrera-Pena] began making . . .
movements as if [he was] taking [his] clothes off, like
. . . lifting [his] butt up out of the seat.
When back-up arrived, Officers Dayon and Botti exited their vehicles and
approached the Honda on the driver's side, while other officers approached the
vehicle on the passenger's side. Officer Botti told defendants to keep their hands
up, and Officer Dayon asked defendant, who was sitting in the driver's seat, for
his credentials. Officer Botti asked defendant what they were doing in the area
and defendant responded that he was using his GPS. At that point, Officer Dayon
radioed to dispatch and stated "[w]e're going to do a show-up," meaning that
they were going to have Singh look at the Honda's occupants to see if any of
them were the perpetrators that had just held up the gas station.
Before the show-up could occur, Officer Dayon asked defendant to turn
off the car's engine and hand him the ignition key. Defendant complied and
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Officer Dayon placed the key on the roof of the Honda. Officer Dayon asked
defendant who the Honda belonged to, and defendant in turn asked the others;
Mena said the Honda belonged to his friend "Martinez."
Defendant was removed from the Honda so the officers could "speak to
him" and pat him down for weapons. 4 No weapons were found in his possession.
Cabrera-Pena was then removed from the Honda and patted down for weapons.
No weapons were found in his possession. Officer Dayon then looked in the
Honda in the area immediately surrounding the front-passenger's seat "because
when [he] pulled up [Cabrera-Pena] was moving around a ton." As he did so,
Mena, who was still in the backseat, told Officer Dayon "[y]ou can't search the
car." Officer Dayon explained that he could do a plain-view search, and Mena
was then also removed from the Honda.
Officer Dayon saw a pair of red pants on the floor of the vehicle near the
front-passenger's seat. He moved the pants aside to determine whether there was
a weapon underneath. But, before touching the pants, Officer Dayon radioed
other officers to determine whether any of the suspects had been wearing red
4
Prior to removing defendant from the vehicle, officers received confirmation
from dispatch that the Honda belonged to an individual named Fiore Martinez .
The car had not been reported stolen, nor were there any reports of criminal
activity linked to the vehicle.
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pants. When he did not receive a response, Officer Dayon moved the pants and
discovered a "wad of cash" underneath the passenger's seat. After finding the
cash, Officer Dayon continued looking under the passenger's seat where he
eventually found a knife handle next to the cash. All three Honda occupants
were then handcuffed and taken to the police station.
Defendant argues that the motor vehicle stop was unconstitutional. We
disagree. Both the Federal Constitution and New Jersey Constitution protect
citizens from unreasonable searches and seizures. U.S. Const. amend. IV; N.J.
Const. art. I, par. 7. "It is well established that the investigative stop of an
automobile by police constitutes a seizure" under the Fourth Amendment , State
v. Amelio, 197 N.J. 207, 211 (2008), but the seizure is permissible if it is
"reasonable and justified by articulable facts," State v. Coles, 218 N.J. 322, 343
(2014). An assessment of reasonable suspicion "must be based upon the law
enforcement officer's assessment of the totality of the circumstances." State v.
Davis, 104 N.J. 490, 504 (1986).
The burden is on the State to show "by a preponderance of the evidence
that it possessed sufficient information to give rise to the required level of
suspicion," which "requires some minimal level of objective justification for
making the stop." Amelio, 197 N.J. at 211-12; see also Ornelas v. United States,
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517 U.S. 690, 696 (1996) (defining reasonable suspicion as "a particularized and
objective basis for suspecting the person stopped of criminal activity") (internal
quotation marks omitted); State v. Stovall, 170 N.J. 346, 356 (2002) (holding
that an officer may conduct an investigatory stop if "based on the totality of the
circumstances, the officer had a reasonable and particularized suspicion to
believe that an individual has just engaged in, or was about to engage in,
criminal activity").
A valid investigatory stop cannot be based solely on an officer's
subjective, good faith belief even if that belief turns out to be correct. State v.
Arthur, 149 N.J. 1, 8 (1997). "The principal components of a determination of
reasonable suspicion" are the events that "occurred leading up to the stop . . . ,
and then the decision whether these historical facts, viewed from the standpoint
of an objectively reasonable police officer, amount to reasonable suspicion."
Stovall, 170 N.J. at 357.
"In evaluating the sufficiency of the basis for a stop or arrest, courts
consider the totality of the information available to the officer at the time of the
conduct. . . . Information acquired subsequently cannot be used to either bolster
or defeat the facts known at the time." State v. Pitcher, 379 N.J. Super. 308, 315-
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16 (App. Div. 2005) (internal citation omitted). "It is axiomatic that hindsight
may not be employed." Id. at 316.
After conducting a hearing over several days on defendants' motions to
suppress, the judge held that Officer Dayon "had a reasonable and articulable
suspicion to believe that defendants had been involved in the robbery of the . . .
gas station" sufficient to justify the investigatory stop of the vehicle. In so
holding, the judge relied primarily on the following facts: the Honda was the
only car in the area and was only four or five houses down from the scene of the
offense; Officer Dayon observed defendants making furtive movements inside
the vehicle; defendant's lack of information about the Honda's ownership; and
Officer Dayon's "conclusion that two of the [defendants] fit the description [s]
given by Mr. Singh."
In arguing Officer Dayon lacked reasonable suspicion for the
investigatory stop, defendant primarily relies on the difference between the
description of the suspects Singh initially gave to police and defendants' actual
appearances. But, even if not precisely the same as Singh described, his
observations and Officer Dayon's were similar. Moreover, the stop wasn't based
significantly or solely on race and sex, as was the case in State v. Nyema, 249
N.J. 509 (2022), but on other information Officer Dayon gathered as he watched
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defendants before back-up arrived. For example, Officer Dayon was entitled to
be suspicious of the Honda as it was the only vehicle in the immediate area of
the hold-up, and he was entitled to be suspicious of the occupants because they
intently stared at him as he passed in his patrol car. Moreover, defendants'
curious movements inside the vehicle were rightfully viewed as consistent with
their relationship to the hold-up.
Defendant relies on what he claims are discrepancies between what Singh
described when identifying the culprits and what Officer Dayon observed when
watching the Honda's occupants. The differences are negligible in light of the
circumstances and the conditions in which they were seen. Singh described one
as being a large, white or light-skinned male, when in fact Mena is a large light-
skinned Hispanic male, and Officer Dayon saw Mena as being light-skinned and
very large. Singh described the other as shorter and dark-skinned, and Officer
Dayon described Cabrera-Pena as dark-skinned. Because the suspects were
seated in a vehicle, any discrepancies about height would seem somewhat
irrelevant in considering whether Officer Dayon was entitled to be suspicious
about the Honda's occupants. In addition, like Singh's description of the two men
wearing dark hooded sweatshirts, so too did Officer Dayon observe Mena and
Cabrera-Pena as wearing dark hooded sweatshirts. When considering the totality
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of the circumstances, these discrepancies are not sufficient to defeat the claim
of reasonable suspicion. Indeed, the question at this stage was not whether
Singh's description was accurate as to the true appearance of the two that held
him up but whether Officer Dayon was justified – based on what Singh described
– in being reasonably suspicious that the two who held up Singh were seated in
the Honda. We are satisfied that the judge was entitled to make that finding.
We therefore conclude that police had a reasonable and articulable
suspicion to stop the Honda. We find any other unmentioned aspects of this
argument to be of insufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(2).
II
Having found a legitimate basis for the stop of the Honda, the judge went
on to find that the officers engaged in an unlawful protective sweep of the
vehicle because the occupants had been removed from the vehicle and were in
the control of the officers. See, e.g., State v. Radel, 249 N.J. 469 (2022).
Nevertheless, the judge found that the inevitable discovery doctrine would have
led them to the evidence seized from the vehicle and, therefore, there was no
reason to exclude that evidence.
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To explain, we start by observing that "[t]he exclusionary rule 'is a
judicially created remedy designed to safeguard' the right of the people to be
free from 'unreasonable searches and seizures.'" State v. Williams, 192 N.J. 1,
14 (2007) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). As
explained in State v. Sugar, 100 N.J. 214, 238 (1985), the inevitable discovery
exception to the exclusionary rule allows the admission of illegally-obtained
evidence if the State can prove that the evidence would have been discovered
had the illegality not occurred by showing:
(1) proper, normal and specific investigatory
procedures would have been pursued in order to
complete the investigation of the case; (2) under all of
the surrounding relevant circumstances the pursuit of
those procedures would have inevitably resulted in the
discovery of the evidence; and (3) the discovery of the
evidence through the use of such procedures would
have occurred wholly independently of the discovery of
such evidence by unlawful means.
We find no reason to second-guess the judge's determination that the
discovery of the cash and knives found in the Honda was inevitable because
soon after the improper protective sweep, Singh was brought to the Honda and
made a positive identification of Mena as one of the two who held up the gas
station. As noted earlier, Officer Dayon was interested in having Singh brought
to the Honda for a show-up sooner. And, to be sure, the inappropriate sweep
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occurred before the show-up. But once the show-up occurred, Singh identified
Mena, and the officers then had probable cause to search the vehicle. In addition,
the fact that the show-up did not precede the vehicle search was of no moment;
police properly towed the vehicle and later obtained the owner's consent to
search it.
III
Defendant argues the trial judge erred in his handling of circumstances
that arose during jury deliberations that, in defendant's view, "resulted in a
verdict based on extraneous considerations" in violation of his constitutional
right to a unanimous verdict based on the evidence and the law.
Jury unanimity is required in all criminal prosecutions, R. 1:8-9, and "the
right to a free and untrammeled verdict . . . is the core of the right to trial by
jury," State v. Figueroa, 190 N.J. 219, 233 (2007). As the Court stated in State
v. Czachor, 82 N.J. 392, 409 (1980), "[c]ritical to achieving such an impartial
verdict is the independent and honest judgment of each juror that the State has
proved defendant's guilt beyond a reasonable doubt." And, of course, the verdict
must be "based upon the evidence and the law, not extraneous considerations
such as the efficiency and expense of jury trials." State v. Adim, 410 N.J. Super.
410, 423 (App. Div. 2009). Nevertheless, the trial judge has the discretion to
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respond to jury issues. State v. R.D., 169 N.J. 551, 559 (2001). And we will
defer to the judge's sound discretion when "exercising control over matters
pertaining to the jury." Id. at 559-60.
To put defendant's arguments in context, we briefly outline the various
relevant occurrences during the jury's deliberations. First, we note that earlier in
the proceedings, the judge provided the jury with an understanding about
scheduling. Due to the length of the trial, by the time jury deliberations began,
only two days were left of the days prognosticated for the completion of the
trial. If the jury failed to return a verdict by the end of those two days, the jurors
would have had to wait an additional twelve days before they would have the
opportunity to complete their deliberations.
On the first day of deliberations, the jury informed the judge they had
reached a verdict as to Mena, but not as to defendant or Cabrera-Pena, and that
a juror had to leave by 4:30 p.m. The jury sent the judge a note asking: "[p]lease
explain the continuing schedule. What is next?" The judge thanked the jury and
told them to return for further deliberations at 1:30 p.m. the following day.
The following day, the judge and counsel discussed the advisability of a
Czachor charge. All counsel agreed such a charge would be premature. At 3:27
p.m., the jury sent a note to the judge, stating they were "irreconcilably
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deadlocked" on some counts while also asking to view again the gas station
surveillance footage. At that point, Cabrera-Pena's counsel moved for a mistrial
based on the jury's assertion of a deadlock but, because a Czachor charge had
not yet been given, the judge denied the motion. When the jury reentered the
courtroom, the judge had the surveillance footage replayed for them without
addressing the issue of a deadlock.
After a portion of the video was played, a juror advised that they wanted
to see the video from the beginning. In response, the judge asked the jury to
return to the jury room and note specifically what they needed to see. The jury
then informed the judge they wanted to see both surveillance videos, including
from inside and outside of the gas station, in their entirety. The videos were then
played, following which the judge gave the jurors a Czachor charge and
instructed them to resume deliberations.
After the jury resumed their deliberations, the judge discussed with
counsel the possibility of returning the following week if necessary. Cabrera-
Pena's counsel had previously advised she would be unavailable the following
week and, under the circumstances, felt it inadvisable to allow another attorney
to fill in for her.
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Before anything could be resolved about scheduling, the judge received a
note from Juror Number 8 that stated: "I don't believe all jurors (just one) are
making their decision from an objective standpoint. Also, is it possible for me
to be excused after today? Can we talk on a side bar to discuss?" Mena's counsel
claimed this required the declaration of a mistrial. The judge was hesitant about
bringing Juror Eight out because he did not want "a juror revealing what's going
on in the jury room, and that's what's maybe going to happen." The judge instead
decided to give the jury another Czachor charge. Mena's counsel again voiced
concerns, saying "I don't know what they said but . . . if we don't address it now,
and we don't talk about it and just give that charge, something might happen
there that we might regret later on." The judge repeated that he was hesitant to
speak with Juror Eight out of fear that it would lead to that juror revealing
information that could lead to a mistrial. The judge and counsel again discussed
scheduling in the event deliberations had to continue into the following week.
The judge then brought the jury back into the courtroom, again gave a
Czachor charge, and directed the jury to continue deliberating. At 6:03 p.m., the
jury sent a note stating it had reached a verdict as to all three defendants.
In claiming error arising from these circumstances, defendant first focuses
on the jury's earlier claim that they were "irreconcilably deadlocked" on some
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counts. As noted, that statement was accompanied by the jury's request to see
again the surveillance video. We find no error or abuse of discretion in the
judge's approach. Indeed, the note's declaration of a deadlock while also seeking
a further review of evidence could have properly been viewed as inconsistent.
The judge sensibly focused on the jury's request for a review of the video rather
than the claim of a deadlock. The jury had not been deliberating for so long as
to take the deadlock claim more seriously than an expression of the status of
their deliberations. The trial consisted of almost four full days of testimony and
then a day that consisted of nothing but summations and jury instructions. The
jury had only been deliberating for a few hours and, in those few hours, was able
to reach a verdict as to Mena. It was too soon to take seriously a claim of a
deadlock, and we are satisfied the trial judge did not abuse his discretion by
giving a Czachor charge and sending the jurors back for further deliberations
without inquiring about the jury's ability to reach a verdict.
The second aspect of defendant's argument concerns the judge's handling
of Juror Eight's note about a fellow juror's alleged lack of objectivity. Instead
of addressing the juror's concerns head-on, the judge chose to again give a
Czachor charge.
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We find no abuse of discretion in how the judge handled the situation.
Defendant, in fact, concedes that "there is no per se rule barring the repeated use
of a Czachor charge," and acknowledges the amount of time between the first
and second Czachor charges was "extremely minimal."
Defendant, however, claims the judge erred by failing to inform the jury
why he was again instructing them in the manner permitted by Czachor, and that
he should have affirmatively addressed the note from Juror Eight. We disagree.
The charge itself 5 is so self-explanatory that an instruction as to why it was given
would be redundant.
We also agree that the judge was not required to question Juror Eight in
the circumstances. Defendant relies on State v. Vergilio, 261 N.J. Super. 648,
655 (App. Div. 1993), where we held in a similar situation that "the judge at the
very least should have issued a strong cautionary instruction before asking the
jury whether further deliberation might produce a unanimous verdict." The
5
The judge gave the charge in these words: "Ladies and gentlemen, it is your
duty as jurors to consult with one another and to deliberate with a view toward
reaching an agreement if you can do so without offending your own individual
judgment. Each of you must decide the case for yourself, but do so only after an
impartial consideration of the evidence with your fellow jurors. In the course of
your deliberations, do not hesitate to re-examine your own views and change
your opinion if convinced it is erroneous, but do not surrender your honest
conviction as to the weight or effect of evidence solely because of the opinion
of your fellow jurors or for the mere purpose of returning a verdict ."
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judge did much the same thing here, issuing a Czachor charge before sending
the jury back for deliberations. We are satisfied that was sufficient.
IV
Finally, defendant argues the judge erred by failing to charge the jury on
conspiracy to commit theft. Because he did not request such a charge, defendant
is relegated to arguing that it was plain error for the judge not to sua sponte give
such an instruction. State v. Alexander, 233 N.J. 132, 141-42 (2018). Plain error
occurs when an action by the trial court "is of such a nature as to have been
clearly capable of producing an unjust result." R. 2:10-2. The possibility of an
unjust result "must be real, one sufficient to raise a reasonable doubt as to
whether the error led the jury to a result it otherwise might not have reached."
Alexander, 233 N.J. at 142. We find no merit in this argument because the
evidence would not support such a finding; the only evidence of a conspiracy
concerned a conspiracy to commit robbery.
An unrequested charge must be given only when the evidence "clearly
indicates" its appropriateness. State v. Savage, 172 N.J. 374, 397 (2002). In
making this determination:
the trial court is not required to scour the statutes to
determine if there are some uncharged offenses of
which the defendant may be guilty. The trial court is
also not saddled with the burden of sifting meticulously
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through the record to find some combination of facts
and inferences that might rationally sustain the lesser
included offense. It is only when the facts clearly
indicate the appropriateness of that charge that the duty
of the trial court arises. We have explained that the
record clearly indicates a lesser-included charge . . . if
the evidence is jumping off the page. In sum, our
caselaw only requires a trial court to include a charge
to a lesser offense that was not requested by the parties
when that charge is obvious from the record.
[State v. Dunbrack, 245 N.J. 531, 545 (2021) (internal
citations and quotation marks omitted).]
In denying defendant's new trial motion, the judge applied this standard.
He noted the difference between theft and robbery, with robbery occurring when
"in the course of committing a theft, [the defendant] puts the victim in fear of
immediate bodily injury." The judge also observed that the evidence about the
substantive offense included the fact that Mena wielded a knife. Consequently,
"a lesser-included offense of conspiracy to commit theft was not 'jumping off
the page.'"
Defendant argues that the same could be said for the decision to charge
theft as a lesser-included offense of robbery. 6 But that question relates to the
offense that was carried out and not necessarily the scope of the conspiracy.
6
We assume for purposes of this decision, but do not decide, that a conspiracy
to commit theft is a lesser-included offense of a conspiracy to commit robbery.
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Indeed, the only evidence of an agreement between or among the defendants –
besides that which related to the actual steps taken in the holdup of the gas
station – came from the following statement Mena gave police:
DETECTIVE STEFANICK: So you tell -- when you go
in the store, you tell the guy, give me the money?
MENA: Yeah.
DETECTIVE STEFANICK: Okay.
MENA: With a knife.
DETECTIVE STEFANICK: Okay. And you held a
knife to him?
JOSE: Yeah.
DETECTIVE STEFANICK: Were you going to hurt
him?
MENA: No.
DETECTIVE STEFANICK: Just scare him --
MENA: Yeah --
DETECTIVE STEFANICK: -- was your plan? Yeah?
MENA: -- yeah.
This statement was the only direct evidence about a plan and it reveals a
plan to commit a robbery by putting the victim in fear through the wielding of a
knife. The other evidence also supported only a conspiracy to commit robbery :
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Mena used a knife during the hold-up, and the knife was obtained from
defendant's home. Thus, it is entirely logical to conclude that the only evidence
of a conspiracy was a conspiracy to commit a robbery. Not only may it be said,
in applying the Dunbrack standard, that evidence of a conspiracy to commit theft
did not jump from the page but there's simply no evidence of a conspiracy to
commit just a theft. To allow the jury to consider whether there was a conspiracy
to commit theft would have invited the jury to speculate about the nature of the
defendants' plan.
Affirmed.
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