SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued February 1, 2005 -- Decided March 30, 2005
PER CURIAM.
Tyrone Gentry was convicted of second-degree robbery of a Rite-Aid drugstore in Camden. The events occurred on November 14, 2001. On that date, a store employee, Tiffany Davis, saw Gentry hiding cigars on his person and directed him to return the cigars and leave the store. When Davis was momentarily distracted, Gentry grabbed several boxes of cigars and ran to the front of the store. Davis claimed that Gentry charged her; he contended that he brushed by her.
In response to shouts from Davis, the store manager, David Lowe, intercepted Gentry
at the front of the store. Grabbing Gentry's pants leg, Lowe was dragged
out of the store onto the sidewalk. Although witnesses testified that Gentry punched,
stomped, and kicked Lowe, Gentry testified that all he might have done was
accidentally kick Lowe while trying to escape. Eventually, Gentry was subdued and arrested.
A Camden County grand jury indicted Gentry for second-degree robbery "in the course
of committing a theft upon Rite Aid and/or Tiffany Davis and/or David Lowe."
At trial, defense counsel argued that Gentry had committed, at worst, a simple
assault. He argued that Gentry had not committed a robbery, which requires a
purposeful or knowing use of force against another.
During the course of its deliberations, the jury sent the trial court
a note indicating that although it was "unanimous" that Gentry had used force
against another, some of the jurors believed that Gentry used force on Davis
but not Lowe and others felt the reverse. The jury asked whether that
constituted a "unanimous vote." The trial court responded that it did. Ten minutes
later the jury returned a guilty verdict. Gentry was sentenced to an extended
term of sixteen years, with an 85% parole ineligibility term under N.E.R.A.
On appeal, Gentry argued that he was denied due process based on the
trial judge's unanimity ruling. A majority of the Appellate Division panel affirmed Gentry's
conviction and sentence. Judge Donald Coburn dissented.
The Appellate Division majority concluded that the jury's role does not require its
members to possess "a shared, detailed vision" of all of the facts to
convict. Therefore, the identity of the "other" on whom force was used was
deemed unimportant.
In his dissent, Judge Coburn concluded that the jurors had to agree unanimously
on which acts were committee against which victim.
Gentry appealed to the Supreme Court as of right based on Judge Coburn's
dissent.
HELD: The use of "force on another" is a critical element of robbery.
In deliberating on a charge of that offense, the jury must agree unanimously
on which acts were committed against which victim.
1. The judgment of the Appellate Division is reversed, substantially for the reasons
expressed in the thorough and thoughtful dissenting opinion of Judge Coburn. (p. 5)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
to the Law Division for further proceedings consistent with the Court's opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join
in the Court's opinion.
SUPREME COURT OF NEW JERSEY
A-
27 September Term 2004
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRONE L. GENTRY,
Defendant-Appellant.
Argued February 1, 2005 – Decided March 30, 2005
On appeal from the Superior Court, Appellate Division, whose opinion is reported at
370 N.J. Super. 413 (2004).
Susan Brody, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith
Segars, Public Defender, attorney).
Robin A. Hamett, Assistant Prosecutor, argued the cause for respondent (Vincent P. Sarubbi,
Camden County Prosecutor, attorney).
PER CURIAM
Defendant Tyrone Gentry was indicted for one count of second degree robbery in
violation of N.J.S.A. 2C:15-1. The charge read, “in the course of committing a
theft upon Rite Aid and/or Tiffany Davis and/or David Lowe one, did inflict
bodily injury or use force upon David Lowe and/or Tiffany Davis; or two,
did threaten David Lowe and/or Tiffany Davis with or purposely put David Lowe
and/or Tiffany Davis in fear of immediate bodily injury.”
The testimony at trial established that on November 14, 2001, defendant entered a
Rite-Aid drugstore in Camden. A store employee, Tiffany Davis, observed defendant hiding cigars
on his person and directed him to return the merchandise and leave the
store. When Davis’s attention momentarily was diverted, defendant grabbed several boxes of cigars
and ran toward the front of the store, knocking Davis backward in the
process. Davis claimed defendant charged her; defendant characterized their interaction as brushing. Davis
shouted to the store manager, Lowe, who intercepted defendant in the vestibule, grabbing
defendant’s pants in an effort to stop him. Defendant left the store dragging
Lowe. Witnesses testified that, outside of the store in an attempt to free
himself from Lowe, defendant began to punch, stomp, and kick Lowe. Defendant testified
that, while he may have accidentally kicked Lowe in trying to escape, he
never intentionally used any force on him. Eventually defendant was subdued, held for
the police, and charged.
In summation at trial, defense counsel argued that defendant had committed the disorderly-persons
offense of shoplifting, and possibly a simple assault, which required only reckless conduct.
He denied that defendant had committed a robbery, which requires a purposeful or
knowing use of force against, or infliction of injury on, another.
During the course of deliberations, the jury sent the trial judge a note,
indicating that all jurors agreed that “defendant knowingly used force against” either Davis
or Lowe, but one group of jurors believed defendant knowingly used force on
Davis but not Lowe, and the other group believed defendant knowingly used force
on Lowe but not Davis. The jury asked whether that constituted “a unanimous
vote.” After hearing counsel’s views, the trial judge responded:
If a portion of this jury believes that that force has been shown
and that same element of force requiring knowing intent has been distributed to
someone else and they’re both encompassed within the format of this indictment, I’m
satisfied that that would be a unanimous determination of the force required by
the statute has been proved by the State beyond a reasonable doubt if
that is the jury’s finding.
Ten minutes later the jury returned a guilty verdict. The trial judge imposed
an extended sentence of sixteen years, eighty-five percent without parole.
Defendant appealed on the ground that he was denied due process based on
the trial judge’s unanimity ruling. Over a dissent by Judge Coburn, the Appellate
Division majority affirmed. The panel held that the verdict was unanimous because all
jurors agreed that defendant used force on another and that the identity of
the victim was immaterial. The majority reasoned that only disagreements regarding the facts
that form the basis for the elements of an offense are able to
jeopardize the constitutional requirement of jury unanimity. According to the court, the scope
of the jury’s role within constitutional parameters does not require that the jury
possess “a shared, detailed vision” of all the facts to convict. State v.
Gentry,
370 N.J. Super. 413, 422 (App. Div. 2004). The court concluded that
the elements of robbery were satisfied because the jury unanimously agreed that, during
a theft from Rite-Aid, defendant used force against another. The identity of the
other was deemed unimportant. Therefore, the jurors’ agreement on the use of force
was “statutorily sufficient.” Id. at 424.
Judge Coburn viewed the case differently. In his dissent, he reasoned that force
on another is a critical element of the offense. Id. at 428 (Coburn,
J.A.D., dissenting). He explained why:
[H]ad Lowe not been present, the jury would have been unable to agree
that force had been used against Davis . . . had Davis not
been present, the jury would have been unable to agree that force had
been used against Lowe. Thus, in either of those circumstances, there would have
been no conviction for robbery.
[Id. at 427.]
Citing our prior decisions in State v. Frisby,
174 N.J. 583 (2002) and
in State v. Parker,
124 N.J. 628 (1991), cert. denied,
503 U.S. 939,
112 S. Ct. 1483,
117 L. Ed.2d 625 (1992), Judge Coburn concluded
that the jurors had to agree unanimously on which acts were committed against
which victim.
We have carefully reviewed the record in light of defendant’s contentions regarding unanimity
and conclude that Judge Coburn correctly analyzed the issue presented. Substantially for the
reasons expressed in his thorough and thoughtful dissenting opinion, Gentry, supra, 370 N.J.
Super. at 425, we therefore reverse the judgments of the courts below and
remand the matter to the Law Division for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join
in the Court's opinion.
SUPREME COURT OF NEW JERSEY
NO. A-27 SEPTEMBER TERM 2004
ON REMAND FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRONE L. GENTRY,
Defendant-Appellant.
DECIDED March 30, 2005
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST