Opinion
DOCKET NO. A-3891-13T3
06-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NAJEE KELSEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-06-1557. Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Najee Kelsey was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); and burglary, N.J.S.A. 2C:18-2 (count three). On count one, the judge sentenced defendant to sixty years in prison with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He imposed the same sentence to run concurrently on count two and merged count three into count two.
Defendant raises the following issues on appeal:
POINT I
THE JURY INSTRUCTION FAILED TO PROPERLY ASSIGN THE BURDEN OF DISPROVING PASSION/PROVOCATION TO THE STATE, AND THE PROSECUTOR'S COMMENTS IN OPENING AND SUMMATION INDICATED THAT THE BURDEN WAS ON THE DEFENDANT. (Not Raised Below)
POINT II
MULTIPLE INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)
A. By Stating That No Society With a "Sense of Social Justice" Would Return a Verdict of Passion/Provocation Manslaughter, the Prosecutor Made an Improper "Call To Arms" That Denied the Defendant His Right to a Fair Trial.
B. The Prosecutor's Repeated Efforts to Emphasize the Victim's Virtues and the Defendant's Moral Flaws, and To Elicit Sympathy for the Former and Enmity for the Latter, Also Denied the Defendant a Fair Trial.
POINT III
THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT ERRONEOUSLY ADMITTED A "LINEUP" OF POLICE PHOTOGRAPHS THAT INCLUDED DFENDANT'S PHOTOGRAPH, AND THIS ERROR WAS COMPOUNDED WHEN THE COURT FAILED TO PROVIDE
THE MODEL CHARGE ON POLICE PHOTOGRAPHS. (Not Raised Below)We have considered these arguments in light of the record and applicable legal standards. We affirm but remand the matter to correct the judgment of conviction (JOC) to reflect the merger of counts one and two, and for resentencing on count three.
POINT IV
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below)
POINT V
THE MURDER AND FELONY MURDER CONVICTIONS SHOULD HAVE MERGED, AND BECAUSE THE PRIMARY BASES FOR THE TRIAL COURT'S IMPOSITION OF A [SIXTY] YEAR NERA SENTENCE WERE A SOCIAL PHENOMENON OUTSIDE THE RECORD AND GENERAL DETERRENCE, THE CASE SHOULD BE REMANDED FOR RESENTENCING
A. The Murder and Felony Murder Convictions Should Have Merged
B. Because the Primary Bases for the Trial Court's Imposition of a [Sixty] Year NERA Sentence Were a Social Phenomenon Outside the Record and General Deterrence, the Case Should be Remanded for Resentencing
I.
The evidence adduced at trial revealed that on May 20, 2008, at approximately 2:00 p.m., a neighbor of Tanisha Tull was coming home from school when her attention was drawn to a man, ultimately identified as defendant, banging loudly on Tull's door. Through her window, the neighbor observed the door open slightly and heard a verbal dispute between defendant and Tull, before defendant pushed through the door and into the apartment. The neighbor heard Tull repeatedly scream, "get off me, get out of my house, leave me alone." The screaming continued for a few minutes before the apartment fell silent. Another neighbor witnessed the same exchange and also heard Tull's screams.
Later that day, defendant went to the property manager's office claiming he was locked out of Tull's apartment and needed a key. Because he was not on the lease, the manager refused to issue him a key and defendant left. Later, after being told of the earlier incident, the manager went to Tull's apartment and knocked on the door. When no one answered, he called the police.
Somers Point Police Officer Michael Price arrived on scene and entered the apartment with the manager. Although the rooms were neat and orderly, Price noted there was a dent on the outside door and the chain lock had been ripped from the door frame. He examined Tull's cellphone and found repeated calls from defendant that were made the night before and earlier that morning. In the bedroom, Price found Tull's lifeless body "tucked in" under the bedcovers. Her neck and chin area bore marks consistent with strangulation.
Meanwhile, Atlantic City Police Sergeant Andre Corbin received a call from defendant's father, who expressed concern that something had occurred and agreed to allow police to monitor a phone call between him and his son. During the call, defendant stated there had been an incident between him and Tull, and that Tull had been injured. Corbin arranged to meet defendant. Defendant told Corbin that when he arrived at Tull's apartment, it appeared as though someone had broken into the residence. He found Tull unconscious on the bedroom floor. Corbin transported defendant to the prosecutor's office to provide a statement.
In a videotaped statement that was played for the jury, defendant initially repeated the story of discovering Tull's lifeless body in her apartment after an apparent break-in. However, defendant recanted that version of events and told police that Tull was alive when he arrived at her apartment. Tull opened the door slightly, leaving the door chain in place, and refused to let him into the apartment. The couple argued, and eventually defendant "barged in[to the apartment,]" breaking the door chain and angering Tull. He alleged that Tull punched him in the face and attempted to choke him with his hooded sweatshirt. Defendant said that he tried to restrain Tull, but when she swung at him again, he choked her.
Defendant explained that Tull regained consciousness but was having difficulty breathing and did not have a "full pulse." Defendant claimed she was speaking and moving around the apartment. When defendant left, Tull had slipped into unconsciousness but still had a heartbeat and pulse. Defendant intended to return to the apartment to check on her, but accidentally let the door close and lock behind him.
The medical examiner explained Tull's injuries observed at the autopsy and opined that the cause of death was strangulation. Defendant elected not to testify and called no witnesses.
II.
Defendant contends that the jury instructions failed to properly convey that the State bore the burden of proving the homicide was not committed in the heat of passion following a reasonable provocation. Since there was no objection to the charge at trial, we review the argument under the plain error standard and must consider whether the alleged error was "clearly capable of producing an unjust result." R. 2:10-2.
The Court has said that
[i]n the context of a jury charge, plain error requires demonstration of "[l]egal
impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to object signifies that "'in the context of the trial[,] the [alleged] error was actually of no moment.'" State v. Ingram, 196 N.J. 23, 42 (2008) (quoting State v. Nelson, 173 N.J. 417, 471 (2002)).
[State v. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
Early in his instructions, the judge told the jury that "[i]f, however, you find that the defendant purposefully or knowingly caused death or serious bodily injury that then resulted in death, but that he did act in the heat of passion resulting from a reasonable provocation, then the defendant would be guilty of passion/provocation manslaughter." Specifically addressing the State's burden of proof, the judge said:
Now, the third element that the State must prove beyond a reasonable doubt to find the defendant guilty of murder is that the defendant did not act in the heat of passion resulting from a reasonable provocation. Passion/provocation manslaughter is a death caused purposely or knowingly that is committed in the heat of passion resulting from a reasonable provocation.Immediately thereafter, the judge defined the four elements of passion/provocation manslaughter. See, e.g., State v. Josephs, 174 N.J. 44, 103 (2002) (defining elements). He again explained the State's burden of proof and the consequences of the State's failure to disprove at least one of the four elements.
Defendant focuses upon a final paragraph of the judge's instructions that attempted to summarize, somewhat obliquely, that passion/provocation manslaughter required the presence of all four elements. He claims this single paragraph flipped the burden of proof. We disagree. Because the charge as a whole properly explained the State's burden of proof, and was neither misleading nor ambiguous, we find no error. State v. Baum, 224 N.J. 147, 167 (2016).
Defendant also contends that the charge, when taken in conjunction with the prosecutor's summation comments, denied him a fair trial. Again, we find no basis to reverse the conviction. The prosecutor's comments challenged the defense version of the facts, i.e., that defendant strangled Tull after a reasonable provocation. Although he referred to passion/provocation manslaughter as defendant's "claim" upon which he should not "prevail," at other points the prosecutor clearly stated that the State bore the burden of disproving a homicide committed in the heat of passion after a reasonable provocation. In any event, we believe the judge's instructions clearly stated the law and we presume the jury followed them. State v. Ross, 218 N.J. 130, 152 (2014).
III.
Defendant contends that the prosecutor's comments in his opening statement and summation were so egregious as to deny defendant a fair trial. We review the claim as plain error, since there were no objections lodged at trial to any of these statements.
In his opening, citing her college attendance and plans to become a nurse, the prosecutor described the victim as someone "moving on in her life." The prosecutor described the victim's apartment as her "sanctuary," a place where she had "every right" to tell defendant to "get out," and noted the sparse furnishings, including some children's furniture. He asked the jury to imagine the effect upon Tull's sister when hearing the news that her sister had been killed.
The nineteen-year old Tull did not have children but apparently babysat for other family members.
In his closing, the prosecutor began by rhetorically asking
Has this society lost its sense of social justice to the point where a young woman who's moving forward in her life, keeping her own apartment, proving her personal goal being a nurse while attending college is killed by a man who she has an absolute right to exclude from her home and her life who then is allowed to minimize her murder by arguing that he acted in the heat of passion? The answer is an unequivocal and resounding no. No, members of the jury. Society has not lost its sense of social justice because, under the criminal law of the State of New Jersey and the evidence of this case, defendant . . . should not prevail on a theory of passion/provocation manslaughter.The prosecutor later added:
You know we've become a society pretty much where people almost no longer accept responsibility. It's a problem. You know, as you sit there, in this jury box, you're probably saying boy, I'm in an uncomfortable position. I have to assess responsibility on to someone else. You know what? That's what you're sworn to do when you took the oath.The prosecutor concluded:
The defendant . . . in his opening statement argued to you that this is a tragic
situation for both families, and I know [defense counsel] hit upon that, and I know he was sincere in saying that he extended his sympathies to the Tull family for the loss. The Tull family, this tragedy is almost unfathomable. Forever gone is their daughter, their granddaughter, their sister, niece, cousin and their friend.
Defendant contends that the prosecutor's comments were designed to curry sympathy for the victim and "enmity" for defendant. He also contends that the prosecutor's summation comments amounted to an improper "call to arms." While some of the comments would have been better left unsaid, we cannot conclude that they deprived defendant of a fair trial.
While prosecutors are entitled to zealously argue the merits of the State's case, State v. Smith, 212 N.J. 365, 403 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013), they occupy a special position in our system of criminal justice. State v. Daniels, 182 N.J. 80, 96 (2004). "'[A] prosecutor must refrain from improper methods that result in a wrongful conviction, and is obligated to use legitimate means to bring about a just conviction.'" Ibid. (quoting State v. Smith, 167 N.J. 158, 177 (2001)). Even if the prosecutor exceeds the bounds of proper conduct, "[a] finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" Smith, supra, 167 N.J. at 181 (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
One factor to consider is whether there was a proper and timely objection to the comment, State v. Jackson, 211 N.J. 394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." Smith, supra, 212 N.J. at 407. Consideration of whether the prosecutor committed plain error necessarily requires us to weigh the conduct against the strengths of the State's case. State v. Negron, 355 N.J. Super. 556, 578-79 (App. Div. 2002). See also State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005) ("When all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence.").
We have not hesitated to criticize rhetorical excesses by prosecutors that invite juror sympathy for the victim. See, e.g., Roman, supra, 382 N.J. Super. at 58 (criticizing prosecutor's remarks that it was the duty of adults, including the jurors, to protect the child victim); State v. Buscham, 360 N.J. Super. 346, 364-65 (App. Div. 2003) (same). Suggesting to jurors that it was their duty to convict so as to provide justice to the victims is even more egregious. See, e.g., State v. Pennington, 119 N.J. 547, 576 (1990) (improper to imply "jurors will violate their oaths if they fail to convict"); State v. Hawk, 327 N.J. Super. 276, 282 (App. Div. 2000) (suggestions that the jury should "send a message" through its verdict, or "'hold [defendant] . . . accountable' . . . were inappropriate, inflammatory and constitute[d] misconduct"); State v. Acker, 265 N.J. Super. 351, 356-57 (App. Div.) (implying jurors would violate their oaths unless they convicted defendant), certif. denied, 134 N.J. 485 (1993).
In this case, taking the prosecutor's comments, particularly in summation, as a whole, and considering the overwhelming proof of the State's evidence, we cannot conclude that they compel reversal.
IV.
The State presented, and later introduced into evidence, a series of photographs assembled by police that were used to identify defendant. One of the eyewitnesses at the scene identified defendant's photograph as the person he saw arguing with Tull, and this witness also identified defendant in court.
A detective also testified about the out-of-court identification procedure. It is unclear from her brief testimony whether the witness viewed all six photos at once or whether they were shown to him individually. Defense counsel posed no questions to the detective. --------
Although there was no objection at trial, defendant now argues that photographs should have been excluded "[b]ecause the array was a police 'photo lineup' featuring multiple men in the same bright orange garb, [that] was almost certainly recognized by the jury as a collection of mug shots and thus had the effect of indicating that the defendant had a criminal history." He argues the judge had an independent obligation under N.J.R.E. 403 to exclude the evidence, and "[t]his error was compounded because the court also failed to give the required charge on Identity-Police Photos, which might have ameliorated the prejudice caused by the photos' admission into evidence." See Model Jury Charge (Criminal), "Identity — Police Photos," (Revised Jan. 6, 1992).
Defendant bears the burden of demonstrating that the admission of the photographs into evidence was plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2. The error must be "'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
When identification is relevant, "mug shots may be admissible. But they must be presented in 'as neutral a form as possible.'" State v. Cribb, 281 N.J. Super. 156, 161 (App. Div. 1995) (quoting State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988)). The term "mug shot" may impermissibly infer that a defendant has a prior criminal record. Id. at 161-62. However, "[a]lthough references to mug shots have been found to be error, solitary, fleeting references will generally not constitute reversible error." State v. Harris, 156 N.J. 122, 173 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001).
The identification of defendant as Tull's killer was not in issue, since defendant admitted killing Tull. However, admission of the out-of-court identification was necessary to prove that the State's eyewitness saw defendant confront Tull at her door and force his way in. It was necessary to prove with whom Tull argued inside her apartment before she screamed and then fell silent. The eyewitnesses' versions of the events were relevant if for no other reason than to rebut defendant's claim that he killed Tull in the heat of passion after a reasonable provocation.
Copies of the photographs are in the appellate record and, while all six men appear in orange tops, each photo is closely cropped so as to show essentially only the subject's head. We fail to see how they could have been presented in a more neutral fashion, other than being presented in black and white. In any event, no witness ever referred to the photographs as being "mug shots" during testimony.
Succinctly stated, the "probative value" of the photographic array used to identify defendant was not "substantially outweighed by the risk of [] undue prejudice." N.J.R.E. 403(a). We conclude admitting the photographs was not plain error.
Lastly, it would have been preferable for the judge to have given the model charge, but, again, defendant did not request it. Under the particular facts of this case, the failure to give the charge was not error that "'of itself [] possessed a clear capacity to bring about an unjust result.'" Burns, supra, 192 N.J. at 341 (quoting Jardan, supra, 147 N.J. at 422).
In point IV, defendant raises a claim of cumulative error. See State v. Jenewicz, 193 N.J. 440, 473 (2008) (citing State v. Koskovich, 168 N.J. 448, 540 (2001). ("[E]ven when an individual error or series of errors does not rise to reversible errors, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal.")). In light of our reasoning, this contention lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).
V.
We turn to defendant's sentencing arguments. Defendant contends that his sixty-year term of imprisonment is excessive because the judge's assessment of applicable aggravating factors and the weight he attached to them was tainted by his "personal feelings on domestic violence, based on anecdotal observations." We disagree.
The judge found that the aggravating sentencing factors substantially outweighed any non-existent mitigating factors. He found aggravating factor three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3), "[p]rimarily because of the level of rage which apparently [defendant] is capable of reaching with little or no provocation other than being told that his relationship has ended." While acknowledging that defendant had no prior convictions for violent crime, the judge emphasized "[defendant's] use of marijuana since [the] age of [sixteen] and . . . [his] two prior indictable convictions for drug cases" indicated a borderline aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted." N.J.S.A. 2C:44-1(a)(6). As to aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9), the judge found it was "as high as it can be." He explained, "[y]ou have a death. You have a senseless death. You need to deter this [d]efendant from committing such acts and you have a need to deter and stop the national epidemic of domestic violence."
"Appellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). We assess whether the aggravating and mitigating factors "'"were based upon competent credible evidence in the record."'" State v. Miller, 205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting Bieniek, supra, 200 N.J. at 608). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Defendant cites Case, in support of his contention that "the clear focus of the court's sentencing decision was the need to combat the 'national epidemic' of domestic violence, which was clearly tied to general, rather than specific, deterrence." In Case, the Court vacated defendant's sentence finding that the judge failed to "explain [his] reason for placing particular emphasis on aggravating factor nine — the need for both specific and general deterrence." Case, supra, 220 N.J. at 68. The Court "share[d] the trial court's view that 'adult predators of young girls must be deterred,'" but noted "'that general deterrence unrelated to specific deterrence has relatively insignificant penal value.'" Ibid. (citing State v. Jarbath, 114 N.J. 394, 405 (1989)). The Court concluded that while aggravating factor nine was entitled to credit, the trial court erred in failing to explain why it was entitled to "'particular emphasis.'" Ibid.
Here, defendant argues the judge's emphasis on general deterrence was based upon evidence outside of the record, i.e., anecdotal references to the pervasive and pernicious effects of domestic violence. He urges us to remand for re-sentencing.
However, the judge clearly linked his comments to the specifics of this case, recognizing that defendant caused the "senseless death" of a young woman in a jealous rage after being rejected. Any reference to the general goal of deterring others from committing domestic violence was secondary. As we see it, the judge was doing nothing more than restating what our Legislature has already recognized as a "serious crime against society." See N.J.S.A. 2C:25-18 (stating the legislative findings that led to passage of the Prevention of Domestic Violence Act).
We do agree with defendant, however, that the judge mistakenly addressed the merger issues. As a result, we remand to correct the JOC and resentence defendant on count three.
"Once [a] defendant ha[s] been convicted of purposeful and knowing murder . . . , his conviction for felony murder bec[omes] 'surplusage' because that offense imposes criminal liability for the homicide committed in the course of a felony in the event that intent for the homicide cannot be proved." State v. Brown, 138 N.J. 481, 561 (1994) (citing State v. Stenson, 174 N.J. Super. 402, 406-07 (Law Div. 1980), aff'd o.b., 188 N.J. Super. 361 (App. Div. 1982), certif. denied, 93 N.J. 268 (1983)), overruled on other grounds by State v. Cooper, 151 N.J. 326 (1997). The underlying "felony," however, does not merge into the knowing and purposeful murder. Id. at 561 (citing State v. Russo, 243 N.J. Super. 383, 411 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991)).
Accordingly, the matter is remanded to the Law Division. Defendant's judgment of conviction shall be amended to reflect the merger of counts one and two. Additionally, because the trial judge mistakenly believed he was required to merge defendant's conviction on count three, burglary, we remand the matter for re-sentencing on count three.
Affirmed; remanded for resentencing and correction of the JOC. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION