Opinion
DOCKET NO. A-5993-10T2
11-07-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DYSHON RAGLAND, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Harris, and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-07-1359.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Dyshon Ragland was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3; first-degree murder, N.J.S.A. 2C:11-3(a), (b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree conspiracy to commit witness tampering, N.J.S.A. 2C:5-2 and 2C:28-5(a); and third-degree witness tampering, N.J.S.A. 2C:28-5(a)(1). After merger, Ragland was sentenced to an aggregate term of imprisonment of sixty-two years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Ragland now appeals from the May 6, 2011 judgment of conviction, arguing that he was unfairly tried due to several mistaken evidentiary rulings made by the trial judge. He also challenges the sentence as being manifestly excessive. We affirm.
I.
We glean the facts from the trial record. On February 27, 2008, certain members of the Bloods street gang — including Ragland, Niko Rossano, and Anthony Skyers — decided to get a meal at a Subway restaurant in Toms River. Rossano and Ragland entered the Subway at approximately 5:50 p.m., whereupon Rossano recognized an employee, Quinton Allen, but did not acknowledge him. Rossano also nodded to waiting-in-line customer Eric Berrios, who Rossano knew from living in the same neighborhood and attending the same school.
When Ragland reached the front of the customer line, Rossano observed him pointing a gun at the cashier, stating, "Give me the money." Rossano claimed that he "was in a daze" because he was unaware that Ragland possessed a firearm and intended to rob the restaurant.
Allen recognized both Rossano and Ragland; he went to high school with Rossano and grew up with Ragland in the Winteringham Village neighborhood. When questioned by police, Allen initially said that he did not know the individuals who had entered the Subway because he "didn't want to get involved" and was "afraid of what [Ragland] could do." Allen later pled guilty to hindering apprehension.
Three months later, on June 5, 2008, in the early evening, Lakewood police officers observed Skyers and two other individuals purchasing beer from a liquor store in downtown Lakewood. Skyers appeared to be less than twenty-one years old, and the police officers arrested him for underage possession of alcohol. His comrade, Warren Applegate, who was not a minor, also was arrested and charged with supplying a minor with alcohol, among other offenses. Applegate's charges required him to remain at the police station, while Skyers was immediately released with a summons. During his encounter with the police at that time, Skyers was only questioned about his underage possession of alcohol, and nothing else.
According to Zenobia Jackson, Ragland's live-in girlfriend at the time, at approximately 5:30 or 6:00 p.m., Applegate's sister telephoned Ragland. Although she could hear only one side of the conversation, Jackson heard Ragland say, "I hope he didn't do what I think that he's done" and "if he did what I think he did, I'm just going to have to shut him up." After the telephone conversation ended, Ragland told Jackson that he was referring to Skyers, who had just been "picked up and locked up by the police" along with Applegate. Also according to Jackson, Ragland received other upsetting telephone calls about Skyers in which Ragland stated that he was "just going to take care of the situation and eliminate the problem."
At approximately 7:00 p.m., Ragland left Jackson's apartment, telling her that he was "going around the corner." Before leaving, he telephoned Chris Brown, a fellow Bloods street gang member, but Brown did not answer the call because he was working in Piscataway until approximately 8:00 p.m.
Just before 10:00 p.m., Brown encountered Ragland at Jackson's apartment complex. After spending some time with Ragland in Jackson's apartment, the men left and walked to Brown's car. Along the way, Ragland told Brown "he had to show [him] Baby J," which was a reference to Skyers. Brown was already aware that Ragland "didn't want [Skyers] . . . around" because Skyers had "snitch[ed] on the Subway robbery."
While Brown and Ragland walked along an unlit wooded trail, Ragland said he hoped "that Baby J's mother . . . finds the body." After walking some distance, Brown saw Skyers lying face down with a bullet hole in his head. Upon seeing Skyers's body, Ragland told Brown that he "pulled the trigger once, . . . nothing came out, and then . . . Baby J . . . turned around and . . . he pulled again and shot." Ragland also said, "this is what happens . . . to snitches."
On June 8, 2008, Ragland surrendered himself to the Lakewood Police Department on an outstanding warrant for the Subway robbery. On the way to the county jail in an unmarked black Crown Victoria, one of the sheriff's officers assigned to the transport detail asked the other sheriff's officer if he knew any facts about a recent Lakewood homicide. When the second sheriff's officer indicated that he "didn't know any particulars about the incident," Ragland leaned towards the vehicle's partition window, stating that the Lakewood police "had me as the prime suspect in the shooting." Ragland then asked two questions: "[H]ow can I be arrested for this crime when the only witness to the crime is dead?" and "[H]ow can I go on trial for this crime when my codefendant is dead?"
When one of the sheriff's officer asked, "who died," Ragland said, "just read my shirt," which contained the words "R.I.P. Baby J" on the front and "Anthony" on the back. Ragland further volunteered that Skyers "was his brother and he was going to have [Skyers's] face tattooed on his arm."
Kevin Allman, an Ocean County sheriff's officer, fingerprinted Ragland that day. In response to Ragland's question regarding whether he could be charged with a crime if the police did not have the weapon, Allman responded affirmatively. Allman testified that Ragland replied that "he did not have the weapon anymore."
After waiving his Miranda rights, Ragland gave an unrecorded statement to Toms River police detective Steven Lomer. According to Detective Lomer, Ragland denied any involvement in the Subway robbery. Ragland also stated, "he was in charge of 200 Bloods" in the Lakewood and Toms River area, and a friend of Skyers.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
While incarcerated, Ragland telephoned his mother, Donna Looney, from jail. Four of those calls were recorded and played for the jury. In those calls, Ragland asked his mother to have others talk to the Subway employee, Allen, requesting that he submit a statement to Ragland's lawyer that Ragland was not at the scene of the Subway robbery.
While being held in the county jail on the robbery charge, Ragland befriended Charles Anderson who had been incarcerated since April 2008 for charges related to a separate armed robbery, assault, and multiple weapon offenses. According to Anderson, Ragland spoke about the Subway robbery and Skyers's murder multiple times. Anderson also claimed that Ragland asked him to write a letter to the prosecutor, informing that an individual named D-Bow committed the murder. Instead of informing the prosecutor of that accusation, Anderson wrote a letter seeking to be released on his own recognizance in exchange for information about the Subway robbery and Skyers's murder.
After meeting with detectives, Anderson agreed to wear a wireless recording device so that further information could be collected directly from Ragland. The detectives instructed Anderson not to discuss the Subway robbery with Ragland. Additionally, they instructed him not to ask Ragland questions, but merely "let him come to [you] . . . and talk." Anderson was not released on his own recognizance and returned to his original lodging in the jail.
Ragland's July 1, 2008, conversation with Anderson was recorded and played for the jury. During the conversation, Ragland denied committing the Subway robbery, stating he did not fit the witnesses' description, and Rossano would not be able to identify Ragland since they had just met, and Rossano would be afraid to testify against him.
With respect to Skyers's murder, Ragland said it was "impossible" for him to be charged with that crime because he "was with [Brown] . . . for most of the night." Furthermore, Ragland contended that there were three other potential suspects, and on the day of his arrest for the Subway robbery, Ragland wore a t-shirt with Skyers's street name inscribed on it and acted distraught in the presence of the police about his death.
In October 2008, Ragland confronted Anderson with what appeared to be a police report, stating that Anderson had told the police that Ragland committed the Subway robbery. Ragland said if Anderson did not write a letter stating Ragland had not committed the robbery, Anderson would be "food," meaning that he would be targeted for an assault or death. Feeling threatened, Anderson wrote a letter recanting everything he had told the prosecutor's office about Ragland, as well as the information contained in the "consensual intercept."
Jacarlos McKoy, a fellow inmate with Ragland and Anderson in the county jail, became a member of the Bloods street gang while incarcerated on October 31, 2008, but dropped out of the gang in 2010. McKoy testified that Ragland approached him in the jail's recreation yard near the end of 2008, asking him "how . . . [McKoy] was living with a snitch?" Ragland showed McKoy a paper suggesting that Anderson was cooperating with law enforcement authorities, and indicated that Ragland would increase McKoy's rank in the street gang if he assaulted Anderson. McKoy recruited fellow inmate Jashon Brinson to help with the assault because Anderson was "not really a small guy."
On March 12, 2009, Brinson and McKoy assaulted Anderson. Anderson testified as follows: "[O]ut of nowhere I felt a sharp object and it punctured my lip, went through my lip, shattered my teeth and it knocked me on the floor. And [McKoy] proceeded to kick me, punch on me, they beat me up for like a half hour. I lost like a decent amount of blood." As sheriff's officers were rescuing Anderson, he saw Ragland laughing at him and saying, "[H]ey, they got you, they got you, they F you up."
After July 4, 2009, when Ragland and McKoy were then housed together in the county jail, Ragland told McKoy that he "executed" Skyers with a revolver because he thought Skyers "was snitching about a Subway robbery."
On September 22, 2009, an Ocean County grand jury issued a superseding indictment against Ragland (and three others) for numerous crimes associated with the robbery at the Subway restaurant, the murder of Skyers, and the assault and witness tampering with respect to Anderson. Prior to trial, Ragland moved to suppress his oral statements to the jailhouse informant, Anderson, but the motion was denied.
The initial one-count indictment, charging Ragland singly with first-degree robbery, was issued on September 25, 2008.
The trial comprised ten days of testimony. At its conclusion, the jury convicted Ragland of first-degree armed robbery, first-degree conspiracy to commit murder, first-degree murder, and second-degree possession of a weapon for an unlawful purpose. In addition, Ragland was found guilty of the lesser-included third-degree crimes of conspiracy to commit witness tampering, witness tampering, and aggravated assault. Ragland was acquitted of the third-degree weapons possession charge.
On May 6, 2011, the trial court merged the conspiracy to commit murder and weapon possession convictions with the murder conviction, and the conspiracy to commit witness tampering conviction with the witness tampering conviction. On the Subway robbery conviction, the court sentenced Ragland to seventeen years imprisonment subject to the NERA. On the merged murder conviction, Ragland was sentenced to a consecutive forty-five- year term of imprisonment subject to the NERA. Additionally, Ragland was sentenced to two concurrent terms of four years each on the witness tampering and aggravated assault convictions. This appeal followed.
II.
Ragland presents the following arguments for our consideration:
POINT I: THE COURT SHOULD HAVE EXCLUDED THE INTERCEPTED CONVERSATIONS BETWEEN A JAIL INFORMANT AND THE DEFENDANT BECAUSE THEY WERE OBTAINED IN VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT UNDER THE NEW JERSEY CONSTITUTION.After reviewing the extensive record in this case, we do not find any of these arguments persuasive.
POINT II: THE PREJUDICIAL ADMISSION OF DEFENDANT'S RECORDED JAIL CALLS INTERJECTED IMPERMISSIBLE OTHER CRIME EVIDENCE.
POINT III: UNDER THE INSTANT FACTS, THE COURT ERRED IN PERMITTING THE STATE TO REBUT TESTIMONY PURSUANT TO N.J.R.E. 806 OF THIRD-PARTY GUILT.
POINT IV: THE DEFENDANT RECEIVED A MANIFESTLY EXCESSIVE AGGREGATE SENTENCE OF 62 YEARS, SUBJECT TO NERA.
A.
Ragland contends that the trial court erred by failing to suppress his jailhouse statements to Anderson, arguing that Anderson obtained the statements by interrogating him for the State outside his counsel's presence. We disagree.
Prior to the trial, the court held a Massiah hearing to determine whether admission of any intercepted conversation at trial would violate Ragland's constitutional rights. Without objection, the prosecutor asked the court to take judicial notice of several events, including the issuance of the May 2008 robbery complaint; the June 2008 voluntary surrender of Ragland to the police; the September 2008 initial indictment for robbery alone; and the September 2009 superseding indictment for the robbery, murder, and other crimes.
Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964).
In denying Ragland's motion to suppress, the court took into account the above dates, as well as June 10, 2008, which was the date Ragland completed a Uniform Defendant Intake Form to apply for a public defender. The court ruled that Ragland's right to counsel did not attach at the time his conversation with Anderson was recorded (July 1, 2008) because Ragland was not yet indicted and he had not requested counsel at his first appearance. The court further determined that, even if Ragland's right to counsel were triggered, it was not violated because Anderson was not promised anything by the State in exchange for wearing the wireless device, he did not deliberately elicit incriminating statements from Ragland, and Ragland's recorded statements were initiated by Ragland.
The record does not clearly indicate when Ragland's first appearance occurred, but it most likely was in June 2008.
We start our legal analysis with recognition of our scope of review of motions to suppress evidence in criminal matters. We must uphold the factual findings of the motion judge if they are "'supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We "should give deference to those findings of the [motion] judge which are substantially influenced by [the] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964) (citation omitted). Our review of a judge's legal conclusions, however, is plenary. Handy, supra, 206 N.J. at 45.
A defendant's right to counsel is guaranteed by the Sixth Amendment of the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution. State v. A.O., 198 N.J. 69, 81 (2009). Under federal law, "the right to counsel attaches at or immediately after the 'initiation of adversary judicial criminal proceedings.'" State v. Leopardi, 305 N.J. Super. 70, 76 (App. Div. 1997) (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411, 417-18 (1972)), certif. denied, 153 N.J. 48 (1998). Such proceedings may be initiated "'by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" State ex rel. P.M.P., 200 N.J. 166, 174 (2009) (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S. Ct. 2292, 2297, 81 L. Ed. 2d 146, 154 (1984)). After adversarial proceedings have begun, "the right applies not only at trial, but to any 'critical stage' of prosecution, that is, any stage in which the substantial rights of the accused may be affected." A.O., supra, 198 N.J. at 82 (citing Estelle v. Smith, 451 U.S. 454, 470-71, 101 S. Ct. 1866, 1877, 68 L. Ed. 2d 359, 373-74 (1981)).
On the issue of when the right to counsel is triggered, New Jersey follows the same approach. State v. Lenin, 406 N.J. Super. 361, 371-72 (App. Div.), certif. denied, 200 N.J. 477 (2009); Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 3:4-2 (2014). Specifically, the state constitutional right attaches "'upon the return of an indictment or like process[.]'" A.O., supra, 198 N.J. at 82 (quoting State v. P.Z., 152 N.J. 86, 110 (1997)).
The New Jersey Supreme Court has expressly declined to extend the constitutional right to counsel to the pre-indictment period. State v. A.G.D., 178 N.J. 56, 64-66 (2003). Nor has the right been extended to the time when a defendant completes a Uniform Defendant Intake Form or even first appears in court. State v. Tucker, 137 N.J. 259, 290-91 (1994), cert. denied, 513 U.S. 1090, 115 S. Ct. 751, 130 L. Ed. 2d 651 (1995); State v. Perez, 334 N.J. Super. 296, 303-05 (App. Div. 2000), certif. denied, 167 N.J. 629 (2001).
Here, Ragland had not been indicted for anything when his July 1, 2008 conversation with Anderson was recorded. Thus, no violation of his right to counsel occurred. And contrary to Ragland's assertions, Leopardi, which identified three factors for determining whether the State deliberately elicited incriminating statements and consequently violated a defendant's right to counsel when that right has attached, is inapposite because formal adversarial proceedings were indisputably initiated in that case. Leopardi, supra, 305 N.J. Super. at 76.
However, if Ragland's right to counsel were triggered, and thus Leopardi applied, there was no indication that the State directed Anderson to elicit information from Ragland rather than simply listen to him. State v. Bey, 258 N.J. Super. 451, 473 (App. Div.) ("[T]he Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached."), certif. denied, 130 N.J. 19 (1992). Moreover, no evidence suggested that Anderson and Ragland were purposefully placed near each other's cells, nor had Anderson been promised a reward in return for wearing the wireless recording device. This is simply an instance of a defendant who "revealed his guilt unwittingly. But it is no more unfair to use the evidence he exposed through his lack of guile than it is to turn against him clues at the scene of the crime that a brighter, better informed, or more gifted criminal would have hidden." Leopardi, supra, 305 N.J. Super. at 80.
B.
Ragland next contends that the trial court mistakenly permitted the jury to hear his jailhouse recorded telephone calls with his mother. Additionally, Ragland claims that the court failed to sua sponte issue an N.J.R.E. 404(b) limiting instruction. We are unpersuaded.
The State sought to admit telephone calls from Ragland to his mother while he was in jail, in which Ragland requested that she have others talk to Allen and ask him to submit a statement to Ragland's lawyer that Ragland was not at the scene of the Subway robbery. Moreover, the State also sought to have the jury hear a recorded conversation from July 2009, in which Ragland asked his mother to deposit money in McKoy's jail commissary account for McKoy's use.
At the time the State offered this latter conversation, defense counsel did not object. Accordingly, our review of the admissibility of the telephone call regarding McKoy is informed by the plain error standard. R. 2:10-2; State v. R.B., 183 N.J. 308, 321-22 (2005).
Generally, on appeal "[a] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion.'" State v. Harris, 209 N.J. 431, 439 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). More specifically, but in a similar vein, we "defer to trial court rulings on the admissibility of evidence of other crimes, unless those rulings constitute an abuse of discretion." State v. Erazo, 126 N.J. 112, 131 (1991).
Pursuant to N.J.R.E. 404(b), "[e]xcept as otherwise provided by [N.J.R.E.] 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." However, "such evidence may be admitted for other purposes, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake[.]" N.J.R.E. 404(b).
The underlying danger of admitting other crimes evidence is that the jury may convict a defendant simply because he is "a bad person in general." State v. Cofield, 127 N.J. 328, 336 (l992) (internal citation and quotation marks omitted). Therefore, admissibility of evidence of other crimes or bad acts is guided by a four-factor test:
1. The evidence of the other crime must be admissible as relevant to a material issue;However, "[w]hen motive . . . is sought to be shown through other crime evidence, . . . similarity between the alleged other act and the one for which defendant is currently on trial is not a requirement for admissibility." State v. Collier, 316 N.J. Super. 181, 194 (App. Div. 1998), aff'd, 162 N.J. 27 (l999). Also, the fourth factor of the test is "more exacting than [N.J.R.E.] 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice." State v. Rose, 206 N.J. 141, 161 (2011) (emphasis in original).
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Koskovich, 168 N.J. 448, 483 (2001) (citing Cofield, supra, 127 N.J. at 338).]
Ragland's telephone calls were N.J.R.E. 404(b) other-crimes evidence because through them he sought to avoid punishment for the robbery or obstruct justice; thus, the evidence was probative of his consciousness of guilt. See State v. Williams, 190 N.J. 114, 129 (2007) (defendant's immediate post-shooting statements discouraging others from reporting what had happened was admissible as "classic consciousness of guilt evidence").
The recorded conversations satisfied all elements of the other-crimes paradigm. First, they were relevant because they suggested Ragland's consciousness of guilt with regard to the robbery charge. In addition, the second factor is not applicable to consciousness-of-guilt evidence. Williams, supra, 190 N.J. at 131. Third, there was nothing speculative about the evidence because the jury could readily conclude that it provided direct evidence of Ragland's prior conduct, see State v. Bass, 221 N.J. Super. 466, 480 (App. Div. 1987), and nothing indicated that the telephone conversations were inauthentic. Other witnesses are not required to corroborate the evidence in order for it to qualify as "clear and convincing." In re Samay, 166 N.J. 25, 30 (2001). Lastly, the final factor was satisfied because the probative value of the evidence was not outweighed by its apparent prejudice. The evidence was highly probative on the issue of whether Ragland committed the robbery, and no other evidence in Ragland's own words placed him at the scene. State v. Oliver, 133 N.J. 141, 151 (1993) ("An important factor in weighing the probative value of other-crime evidence is whether other, less-inflammatory evidence can prove the same fact in issue.").
Ragland nevertheless asserts that the fourth factor was not satisfied because the evidence was "capable of misleading, confusing and distracting the jury in its determination on the indicted witness tampering offenses involving Anderson." The fear, according to Ragland, is that if it appears he may have attempted to tamper with Allen's testimony, the jury could have used such conduct to conclude that he was predisposed to commit witness tampering vis-à-vis Anderson.
We are satisfied that the jury was properly instructed on the elements of witness tampering, which require a defendant to knowingly engage in conduct that a reasonable person believes would cause a witness to: testify or inform falsely; withhold testimony or information; or otherwise obstruct, delay, prevent or impede an official proceeding or investigation. N.J.S.A. 2C:28-5. And, with respect to Anderson, the evidence was of a different nature than with Allen. Ragland threatened to have Anderson assaulted and, in fact, had him assaulted, knowing that Anderson would likely recant everything he had told the authorities about Ragland's involvement in the robbery and murder. In contrast, Ragland merely asked his mother to have someone speak with Allen about who was present at the time of the Subway robbery. There is no evidence that anyone ever did.
Nevertheless, the trial court erred by failing to give a limiting instruction. State v. Clausell, 121 N.J. 298, 322-23 (1990). The issue is whether that error is sufficient to warrant reversal. R. 2:10-2. On the one hand, it could be inferred that the jury convicted Ragland of all of the witness tampering offenses based on the conclusion that he was predisposed to intimidating and tampering with witness testimony. On the other hand, even excluding the telephone calls, the evidence of the witness tampering offenses with respect to Anderson was powerfully strong based on the testimony of Anderson, McKoy, and Brinson, and the videotaped assault, which the jury viewed.
In addition, the failure to object to the lack of a limiting instruction may signify "that the error belatedly claimed was actually of no moment." State v. Krivacska, 341 N.J. Super. 1, 42-43 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). "[T]o rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal." State v. Macon, 57 N.J. 325, 333 (1971).
Ragland further contends that N.J.R.E. 403 precluded admission of his telephone calls regarding Allen. As we previously explained, the evidence was relevant to consciousness of guilt. At minimum, it qualified as an N.J.R.E. 803(b)(1) statement because it was offered against Ragland, a party to the litigation; it was Ragland's own words made in his individual capacity; and there was proper authentication of Ragland as the speaker. See State v. Mays, 321 N.J. Super. 619, 628-29 (App. Div.), certif. denied, 162 N.J. 132 (1999).
In addition, the risk of the evidence's undue prejudice did not substantially outweigh its probative value. The conversations did not directly implicate Ragland in the robbery and there was no other evidence offered indicating consciousness of guilt. Moreover, the evidence did not suggest that Ragland was predisposed to witness tampering. Thus, the evidence was not excludable under N.J.R.E. 403.
Finally, Ragland contends, as plain error, that the telephone call from jail to his mother requesting that she deposit money in McKoy's commissary account for his use was inadmissible because it was irrelevant. We disagree because Ragland's words corroborated McKoy's testimony on the subject and suggested that Ragland and McKoy were at least acquaintances. The call did not qualify as N.J.R.E. 404(b) evidence; thus, no limiting instruction was necessary. In addition, N.J.R.E. 403 did not preclude the evidence because its purported prejudice did not substantially outweigh its probative value.
C.
Ragland contends that the trial court erred by allowing N.J.R.E. 806 rebuttal testimony to counter the defense theory of third-party guilt, that is, the evidence suggesting that Skyers's murder was committed by someone other than Ragland. Ragland argues that the presentation of this rebuttal evidence was violative of due process and his right to a fair trial because it "interject[ed] highly prejudicial evidence against [Ragland]."
The genesis of the defense theory is found in Brown's cross-examination in which Brown recounted another version of Skyers's murder as being the product of action by an individual named Dennis Thigpen. Because defense counsel opened the door to the evidence when Brown was questioned about what Thigpen said about the murder, see State v. Vandeweaghe, 177 N.J. 229, 237-38 (2003) ("opening the door doctrine" authorizes "'a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence'") (quoting State v. James, 144 N.J. 538, 554 (1996)), the State offered three witnesses to impeach the hearsay statements of Thigpen.
Thigpen was named as a co-defendant, along with Ragland, in the superseding indictment in this case. Thigpen was separately tried for the charges that were lodged against him. He did not testify in the present trial but hearsay statements attributable to him suggesting his participation in the murder were presented to the jury by several witnesses, including Brown.
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In light of the entire record, and recognizing the admonition that a trial court's evidentiary ruling must be upheld "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted," Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999), we conclude that Ragland's challenge to the rebuttal evidence is meritless. R. 2:11-3(e)(2). The rebuttal testimony was probative because if it had not been allowed, the jury's ability to evaluate the truthfulness of Thigpen's hearsay statements "would have been significantly impeded." State v. Sego, 266 N.J. Super. 406, 413 (App. Div.), certif. denied, 134 N.J. 566 (1993). In addition, the trial court adequately instructed the jury multiple times with respect to the evidence's permissible uses, which safeguarded against any purported undue prejudice to Ragland.
D.
Ragland's final argument raises the question of whether his sentence should be adjusted to "the minimum range on the first- degree offenses of murder and armed robbery" because of his "relative youth, age 21 at the time of the incident, one prior fourth-degree conviction[], and severe mental health problems." Because we detect neither a mistaken application of the law nor an abuse of discretion, we leave the sentence intact.
In imposing Ragland's sentence, the trial judge found that four aggravating factors applied to all of Ragland's convictions: the risk of committing another offense, N.J.S.A. 2C:44-1(a)(3); the substantial likelihood of involvement in organized criminal activity, N.J.S.A. 2C:44-1(a)(5); the extent of Ragland'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); and the need to deter, N.J.S.A. 2C:44-1(a)(9). Additionally, N.J.S.A. 2C:44-1(a)(1) (the nature and circumstance of the offense), applied to the murder conviction. The judge found only one mitigating factor, N.J.S.A. 2C:44-1(b)(4) (there were substantial grounds tending to excuse or justify defendant's conduct), based on Ragland's mental history, and gave it minimal weight. Consequently, the aggravating factors substantially outweighed the lone mitigating factor.
Ragland mainly takes issue with the duration of the sentence for first-degree murder and the judge's application of N.J.S.A. 2C:44-1(a)(1) to that conviction. The record amply supports the analysis of the judge, and we have no occasion to intervene.
Our review of sentencing decisions is governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). If the sentencing judge identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obliged to affirm. State v. Cassady, 198 N.J. 165, 180 (2009). We are loath to second-guess a sentence that adheres to the applicable guidelines, see, e.g., State v. Bieniek, 200 N.J. 601, 608, 612 (2010), and only modify a sentence if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
Here, the manner of imposing the sentence and its duration (including the term of parole ineligibility) are entirely consistent with sentencing jurisprudence. We expressly reject Ragland's argument that the sentencing judge improperly utilized aggravating factor one. Here, Skyers was taken to an isolated area and shot by Ragland, a supposed friend, for alleged cooperation with the police, which had no independent corroboration. The judge's findings were grounded in credible evidence presented at trial, all of which demonstrated a cruel, execution-style manner of killing based upon inaccurate supposition and questionable motives.
Finding neither an abuse of discretion nor anything that is conscience shocking, we have no basis to adjust the sentence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION