Opinion
DOCKET NO. A-2580-09T1 DOCKET NO. A-4100-09T1 DOCKET NO. A-4101-09T1 DOCKET NO. A-6279-09T3
04-16-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMELL D. SCOTT, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEE C. REEVES, a/k/a KAOZ, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES S. RUSSELL, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. TRISHAWN F. COCHRAN, a/k/a TONY UNDERWOOD, ANTHONY UNDERWORLD, SHAWNIE, BRAVE, Defendant-Appellant.
Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant Lee C. Reeves in A-4100-09 (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, of counsel and on the brief). Roberta DiBiase, Senior Assistant Prosecutor, argued the cause for respondent State of New Jersey in A-4100-09 (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Ms. DiBiase, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Jamell D. Scott in A-2580-09 (Michele A. Adubato, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant James S. Russell in A-4101-09 (Michael Confusione, Designated Counsel, on the brief). Joseph S. Krakora, Public Defender, attorney for appellant Trishawn F. Cochran in A-6279-09 (Alan I. Smith, Designated Counsel, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent State of New Jersey in A-2580-09, A-4101-09, and A-6279-09 (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, of counsel and on the brief). Appellant Jamell D. Scott filed a pro se supplemental brief in A-2580-09.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Harris, and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-01-00109.
Marcia Blum, Assistant Deputy Public Defender, argued the cause for appellant Lee C. Reeves in A-4100-09 (Joseph E. Krakora, Public Defender, attorney; Ms. Blum, of counsel and on the brief).
Roberta DiBiase, Senior Assistant Prosecutor, argued the cause for respondent State of New Jersey in A-4100-09 (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Ms. DiBiase, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Jamell D. Scott in A-2580-09 (Michele A. Adubato, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant James S. Russell in A-4101-09 (Michael Confusione, Designated Counsel, on the brief).
Joseph S. Krakora, Public Defender, attorney for appellant Trishawn F. Cochran in A-6279-09 (Alan I. Smith, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent State of New Jersey in A-2580-09, A-4101-09, and A-6279-09 (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, of counsel and on the brief).
Appellant Jamell D. Scott filed a pro se supplemental brief in A-2580-09. PER CURIAM
In these back-to-back appeals, which we now consolidate for purposes of this opinion, defendants Jamell D. Scott, Lee C. Reeves, James S. Russell, and Trishawn F. Cochran — all members of the Bloods street gang — challenge their convictions and sentences following a joint jury trial involving charges related to a plot to silence a witness to a prior murder. We affirm in all respects.
The nine-count indictment included the following charges: first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a) or (b); 2C:5-2 (count one); first-degree murder, N.J.S.A. 2C:11-3(a) or (b) (count two); attempted murder, N.J.S.A. 2C:11-3(a)(1); 2C:5-1 (counts three and four); second-degree burglary, N.J.S.A. 2C:18-2 (count five); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); second-degree conspiracy to commit witness tampering, N.J.S.A. 2C:28-5(a); 2C:5-2 (count seven); first-degree witness tampering, N.J.S.A. 2C:28-5(a) (count eight). Count nine, which alleged second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), was directed towards co-defendant Joseph Powell, also an admitted member of the Bloods street gang, who pled guilty to that crime, as well as to the conspiracies asserted in counts one and seven.
I.
A. The Olivares Murder Proceeding
The following facts are derived from the trial record. In February 2006, Christian Vivar Granados was an eyewitness to a violent incident that led to criminal charges against Scott, Russell, and Tyleek Baker relating to the murder of Jose Francisco Olivares in a Lakewood barbershop. During his 9-1-1 call, Granados identified one of the participants by nickname and first name. He also gave statements to the police and identified all three participants in photographs.
The background of those charges, the indictment that resulted, and the trial in the Law Division are described in detail in our unpublished opinion, State v. Scott, No. A-3455-08 (App. Div. April 20, 2012), certif. denied, 212 N.J. 431 (2012).
Granados's name and address appeared in the police reports and other documents produced during discovery in the Olivares murder proceeding. At a plea cut-off hearing in August 2008, Scott and Russell acknowledged that they had reviewed the discovery materials with their attorneys. The court set the trial date for September 15, 2008.
Jury selection began on September 17, 2008. On October 7, 2008, the trial judge advised the defendants that opening statements and witness testimony would begin on October 14, 2008.
B. The Plan to Silence Granados
According to Joseph Powell, on September 13, 2008, he was instructed by Shawn Craighead, a fellow gang member then incarcerated in the Ocean County Jail, to contact gang leader Cochran. When Powell met Cochran a few days later, Cochran told Powell that he was about "to take care of some bitch," which Powell understood to mean an unnamed witness. Cochran later confided that he had learned the witness's address — "in the Congress" — and if Powell spoke with Scott or Russell (who were incarcerated in the Ocean County Jail awaiting trial for the Olivares murder), Powell should tell them Cochran was "still working on that problem."
Soon enough, Powell spoke again with Cochran, telling him that Scott and Russell kept calling him. Cochran responded that "if [you] talk[] to [them], to let [them] know that the situation is taking [sic] care of. That [Reeves] was going to take care of it in the Congress. But if [you] talk[] to him [sic], don't mention [Reeves] or the Congress."
On Friday, October 10, 2008, Russell called Powell. The following verbatim exchange, captured on an audio recording, occurred:
[Russell]: Big bro bust at you and told you tell "Brave" [Cochran] that shit?
[Powell]: About the pants, right?
[Russell]: Yeah.
[Powell]: Word.
[Russell]: Yeah, I know that like, that's like top priority, ya hear.
[Powell]: Word, I told 'em I'd let him have that by Sunday and shit.
[Russell]: Yeah, na, but ah, motherfucker ah, tell "Brave" ta ah, tell "Brave" "Big Bro" said, tell, tell "Brave" "Big Bro" said, "Handle that CVS thing[,]" ya heard?
[Powell]: CVS thing ya said?
[Russell]: Yeah.
[Powell]: A-ight[.]
[Russell]: He be knowin', he be knowin' what it is en shit.
[Powell]: Word.
[Russell]: Ya tell 'em niggers you know what I mean, throw, throw a barbeque[] and speak about that shit.
[Powell]: No doubt.
[Russell]: Yeah, Nig, niggers goin' have ta fight this war on Tuesday, ya heard?
[Powell]: Yeah, I'm gonna be up there Tuesday.
[Russell]: Yeah, I know that. Yeah, we just, we just wavy right now man. I mean I got this thing in neutral patiently waitin' (inaudible) know what I mean?
[Powell]: Word.
Powell understood that "barbeque" meant to "fry" or shoot the witness by "sending some hot, hot lead towards somebody's way."
In another tape-recorded conversation on the afternoon of Monday, October 13, 2008, Scott told Powell: "Bust that 'Brave' that nigger you know what I mean ta handle that shit yo know what I mean, he knows what to do with that shit." Powell replied: "He's hittin' me back," and Scott answered: "A-ight, I'll be at ya later on tonight and shit." Powell testified that "Bust that 'Brave'" meant to call Cochran, and the reference to "handle that shit" referred to "[t]he situation with the witness."
Approximately one hour later, Russell telephoned Powell. Russell asked if Powell knew whether Cochran had "handle[d] that shit." Powell replied that he had talked to everyone but Cochran. Russell responded: "Motherfucka you know niggers tryin', you know what I mean, take it, take it ta a different level, ya heard?" Powell explained that Russell was asking if he had taken care of the witness situation, and telling him to "get the job done."
After Tuesday, October 14, 2008, Powell stopped taking telephone calls from any street gang member in the Ocean County Jail. He testified that he was "afraid of getting caught up between the murder with the phone calls."
C. The Vazquez Murder
On Tuesday, October 14, 2008, Granados was staying with his girlfriend, Alisa Morales, and her mother, Thelma Vazquez, at the Congress Apartments in Lakewood. Prior to that day, a defense investigator had visited a different address listed for Granados in the Olivares discovery materials and was directed by Granados's mother to reach Granados at the Congress Apartments.
Shortly before 6:00 a.m., Vazquez was sleeping on the sofa in the living room when the household's dog began barking. Morales and Granados, who were in the bedroom, heard Vazquez call for the dog and ask, "Que lo que?" Then they heard gunshots. Upon entering the living room, they saw the front door open and Vazquez bleeding on the sofa. While Granados called 9-1-1, Morales ran outside in an effort to get a glimpse of the shooter, but she did not see anyone.
Within moments, Lakewood Police Officer Robert Anderson received a dispatch call to respond to a shooting at Vazquez's apartment. Upon entering the unit, he observed Vazquez with multiple bullet wounds. The front door was "pushed in" and "busted off" the jamb, and wood was missing under the striker plate. Vazquez was taken by ambulance to nearby Kimball Medical Center, where she died.
D. The Ocean County Jail Investigation
On the same day as Vazquez's murder, Sergeant Joseph Valenti of the Ocean County Department of Corrections coincidentally learned of a security threat involving contraband razor blades in the East E section of the Ocean County Jail. While correction officers searched inmates and cells, Valenti accessed and listened to tape-recorded telephone calls made by inmates between October 8 and 14, 2008, "to see if [he] could see if somebody had something to do with the four razor blades that were going to be used to cut up possible officers."
Valenti testified that all telephone calls by inmates were routinely tape-recorded and monitored for security threats. Upon entering the jail, inmates completed a form listing five people they wished to call, plus one attorney. Inmates then received a personal identification number (PIN), which they had to enter into the telephone system before placing a telephone call. Each PIN was traceable to the inmate's housing assignment.
As he reviewed the records of telephone calls and their associated PINs, Valenti noticed that inmate Perfecto Salgado, housed in the jail's North C section, appeared to be making telephone calls from the East E section even though he was not housed there. When Valenti listened to the recordings of telephone calls made with Salgado's PIN, Valenti identified the voices of inmates Russell, Scott, and Craighead. Valenti verified the actual callers' identities by viewing video recordings taken from cameras inside the jail.
Valenti knew that Russell and Scott were on trial for a first-degree crime in the Olivares murder proceeding, and that someone very close to a key witness in that trial was shot and killed earlier that day. Valenti testified that Salgado and Scott were housed in the same jail section from November 22, 2007, through December 3, 2008, and that Scott and Craighead were cellmates from September 6, 2008, through November 6, 2008.
Valenti became alarmed after listening to one of Russell's telephone calls that occurred on October 9, 2008. In that conversation Russell told the other person that something had to be done by Tuesday before the trial: "it's gotta be done by Sunday, Monday the latest 'cause niggers go to court Tuesday, you dig." Valenti contacted Ocean County Prosecutor's Office Investigators Carlos Trujillo-Tovar and Casey Long to advise them of a possible connection between the jailhouse conversations and Vazquez's murder.
Long obtained a court order to review additional telephone conversations using Salgado's PIN from September 2 through October 17, 2008. There were ninety-five telephone calls involved, but Long believed only eight were relevant to the murder of Vazquez. The number was later pared for trial.
Salgado denied using the telephone at the jail, explaining that his family lived in Mexico. Moreover, he confirmed that he did not fill out the PIN request form or sign it. He testified that Scott — known to Salgado as "Cinco" — had completed and signed the form. Scott also filled out the information on two "Telephone Delete Add Request" forms, which Salgado admittedly signed. Salgado was not familiar with any of the names or telephone numbers on those forms.
E. The Shooter
Wenda Guzman testified that on the night before Vazquez's shooting, Reeves slept on the futon in the living room of Guzman's apartment. Shortly before 6:00 a.m. on October 14, 2008, Reeves asked Guzman "to take a walk with him so he [could] fulfill an order." During the walk, Guzman noticed the handle of a gun at Reeves's waist. When she asked him about the gun and the order he was going to fulfill, Reeves would not give her a straight answer. Guzman decided to go home and left Reeves when he turned onto Congress Street.
Reeves returned to Guzman's apartment a few minutes later. Guzman testified that he looked "just fine." He took a shower, asked for a change of clothes, went to sleep on the futon, and left the apartment in the early afternoon.
That same day, James Wallace received a telephone call from Reeves, asking to meet him. Reeves had previously told Wallace "he had to put some work in at the Congress" with "some Spanish cat." When they first met after the shooting, Reeves told Wallace that he had gone to the witness's apartment, kicked in the door, and started shooting until the gun jammed.
Around this time, Reeves gave Wallace a nine-millimeter Smith and Wesson handgun. Wallace wrapped the handgun in a t-shirt, and hid it in his backyard until Reeves asked for it.
Reeves's live-in girlfriend, Shaunita Foskey, learned of the Vazquez homicide on October 14, 2008, which happened to be her birthday. The next day, Reeves told Foskey that he wanted to tell her something "[a]bout the Congress" and "[t]hat lady." Foskey replied, "I don't want to hear nothing."
Around October 17, 2008, Reeves spoke again with Guzman. According to her account, "[h]e pulled me to the side, let me know that the whole order has been fulfilled, and then he proceeded to explain of what his action[s] were of that night." Specifically, Reeves said that "he kicked down the door, let off shots, the gun jammed and he took off running."
Also around this time, Reeves asked Wallace to return the handgun. The weapon, still wrapped in a t-shirt, ended up with Reeves at Foskey's dwelling. She testified that Reeves cleaned the handgun and removed "the dirt from the hole [meaning the barrel] of the gun" with an old toothbrush. As Reeves was cleaning, she saw a copper-looking shell casing inside the handgun. Reeves removed the casing, wrapped it in a tissue, and stated, "without the casing, they don't have anything."
Foskey then listened as Reeves told her "the whole story." He explained that "his Big Homey[] said the witness had to go," meaning he was ordered to kill a witness, and "he had to do what [he] had . . . to do." Reeves admitted to Foskey that he kicked Vazquez's door open, shot whoever was on the couch, and ran off when the gun jammed. Only later did Reeves realize that he shot the wrong person, saying he meant to shoot the "lady's son-in-law," who was "supposed to have been the witness." Sometime after that, he and Foskey went to Camden, where Reeves dropped the shell casing into a street drain.
According to Powell, a "Big Homey" is the person that brings an individual into a street gang.
During the early morning hours of October 22, 2008, Reeves, Wallace, and Stephanie Tansley decided to drive to a liquor store. On the way, Reeves told Tansley — in confidence — that "he went to this house, kicked down the door, had a gun in his shirt and shot," and that he ran when the gun jammed. He asked her if she wanted to go there, and Tansley said yes. Tansley then drove Reeves and Wallace to the Congress Apartments.
Wallace testified that Reeves wanted to show Tansley where he had killed "that bitch at." Leaving Wallace in the car, Reeves and Tansley walked up the stairs to Vazquez's apartment, at which time Tansley saw a police officer in a marked police vehicle below them. They "ran down the stairs and went back into the car," and Tansley drove them to a bar and liquor store before heading to another friend's house.
Lakewood Police Officer Kevin Doyle testified that he was on patrol that morning in the area of the Congress Apartments. At about 1:45 a.m., he noticed a vehicle — "the only vehicle on the street at this time" — moving at a high rate of speed. He followed at a distance and watched it enter the Congress Apartments complex. He found the vehicle parked in front of Vazquez's apartment, and observed a black male and white female standing directly in front of the apartment unit's door. After he drove by, he saw the two individuals immediately return to their vehicle and drive away.
After losing sight of the car, Doyle noticed it approximately thirty minutes later. He followed, and eventually pulled it over. He identified Tansley as the driver, Reeves as the front-seat passenger, and Wallace as the rear-seat passenger. He asked each of them why they went to the apartment and whether they knew about the murder. Reeves told Doyle that he was visiting a friend who lived there, giving the police officer a "bogus name." The officer allowed Reeves and the others to leave.
The same day, Reinaldo Feliciano was stopped by a state trooper in Lakewood for a motor vehicle violation and was taken to the Lakewood police headquarters. There, he was interviewed by investigators from the Ocean County Prosecutor's Office because he indicated that he had information about the Vazquez shooting. He explained that the weekend before the shooting, Reeves said he needed a ride "to go take care of the bitch . . . [b]efore they [sic] get on the stand to testify . . . against one of his homies." According to Feliciano, Reeves said that if he did not get the job done, he would be disciplined — beaten while surrounded — by his fellow street gang members.
Feliciano also stated that Reeves called him the day after the shooting and told him the job was done and "he needed a ride out of town . . . because it was too hot for him to be around." The following day, Reeves told Feliciano in person that "he killed the bitch, and that his gun jammed and he bounced."
In December 2008, Foskey provided information about the location of the shell casing in Camden, which the police recovered from beneath the sewer grate in short order. Several months later, further investigation resulted in the recovery of a nine-millimeter Smith and Wesson handgun, which was forensically linked to the shell casing recovered in Camden and a shell casing found at the scene of Vazquez's shooting.
F. Reeves's Testimony
Reeves testified at trial. He freely admitted that he murdered Vazquez. Cochran, Scott, and Russell did not testify or call any witnesses.
Reeves told the jury that Powell recruited him into the Bloods by "jumping me in," meaning he suffered a beating and bled. At the beginning of October 2008, Reeves said that Powell ordered him to kill a witness, and threatened to "DP" him if he refused. Reeves explained that "DP" meant "dependent upon how serious the infraction is that you do, basically me not killing somebody would mean that I would get killed." When Feliciano tried to talk him out of committing the crime, Reeves told him that the shooting had to be done or it would "come back on me."
Reeves testified he did not mean to kill Vazquez, calling it "an accident," but said he had to do it. He thought the victim was Granados because it was dark inside the apartment. Reeves knew that what he did was wrong and that he deserved to spend time in prison.
Although Reeves admitted telling Guzman and Wallace that Scott was his Big Homey, at trial he maintained that his Big Homey was Powell. Reeves conceded that he told Wallace that he "received orders from [his] [B]ig [H]om[ey] to take care of a witness for [the] [B]ig [H]om[ey]'s trial." He also admitted telling Feliciano, Clark, and Guzman that his Big Homey was in jail, which Powell was not.
Reeves confirmed that he tried to take Feliciano with him when he did the shooting. He admitted telling Feliciano that he "had to take care of some bitch before the bitch got on the stand to testify against one of [his] homies." He explained that "the bitch" referred to Granados, because he was "a snitch." Likewise, he admitted telling Wallace that he had "to put in work on some Spanish cat in the Congress."
G. Rebuttal Testimony
The State presented Guzman, Foskey, and Wallace as rebuttal witnesses. Guzman said Reeves told her in August 2008 that Scott was his Big Homey. He also told her that the order to kill the witness originated with Scott and that it was handed to him down the street gang's chain of command. Reeves never told her that he had been threatened with discipline. Foskey and Wallace similarly testified that Reeves told them Scott was his Big Homey. According to Foskey, Reeves said that Scott sent word that the witness "had to go."
Based upon the trial evidence, the jury convicted Reeves, Russell, and Scott of all counts. It found Cochran guilty of both witness tampering counts, but acquitted him of the remaining charges.
II.
On appeal, defendants raise numerous issues for our consideration. Many of the points are similar and overlapping; others are specific to a particular defendant. We have considered every argument presented, and recite them in full for purposes of completeness:
JAMELL D. SCOTT
POINT I: THE STATE'S EXERCISE OF A PEREMPTORY CHALLENGE TO EXCUSE THE ONLY AFRICAN-AMERICAN ON THE JURY PANEL AT THAT TIME VIOLATED THE DEFENDANT'S RIGHT TO TRIAL BY JURY GUARANTEED BY BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT II: EVIDENCE OF DEFENDANT'S PARTICIPATION IN A PRIOR TRIAL FOR A FIRST DEGREE CRIME WITH PUNISHMENT OF A POTENTIAL LIFE SENTENCE PUNISHMENT WAS INADMISSIBLE N.J.R.E. 404b EVIDENCE AND SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
POINT III: CERTAIN HEARSAY TESTIMONY OF JOSEPH POWELL WAS ERRONEOUSLY ADMITTED INTO EVIDENCE BY THE COURT PURSUANT TO THE CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE.
POINT IV: THE ADMISSION OF THE EXPERT TESTIMONY OF LT. BEVACQUI WAS IRRELEVANT AND OPINED ON THE ULTIMATE FACT IN ISSUE AND SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
POINT V: IT WAS AN ABUSE OF DIRECTION FOR THE TRIAL COURT TO DENY THE DEFENSE MOTION FOR MISTRIAL BASED UPON IMPROPER AND PREJUDICIAL COMMENTS BY THE PROSECUTOR IN SUMMATION.
POINT VI: THE DENIAL OF DEFENDANT'S MOTION FOR CHANGE OF VENUE WAS ERROR.
POINT VII: THE ACTION OF A DELIBERATING JUROR IN ACCESSING THE INTERNET REGARDING THE BLOODS STREET GANG AND INFORMING THE OTHER JURORS OF THE RESULTS OF HER RESEARCH DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).
POINT VIII: THE DENIAL OF DEFENDANT'S MOTION FOR NEW TRIAL WAS ERRONEOUS.
POINT IX: THE CONSECUTIVE LIFE SENTENCE IMPOSED UPON MR. SCOTT MUST BE MODIFIED AND REDUCED. (NOT RAISED BELOW).
POINT X: THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).
LEE C. REEVES
POINT I: THE PROSECUTOR'S SUMMATION WAS RIDDLED WITH MISCONDUCT, INCLUDING HIS CLAIM THAT DEFENDANT "DIDN'T KNOW WHAT HIS DEFENSE WAS UNTIL HE GOT UP THERE," WHICH HE MADE DESPITE THE FACT THAT DEFENDANT NOTIFIED THE STATE, BEFORE TRIAL, ORALLY AND IN WRITING, THAT HE WOULD BE RELYING ON A DURESS DEFENSE.
A. PROSECUTOR'S ATTACK ON THE DURESS DEFENSE WAS CONTRARY TO THE FACTS.POINT II: THE INSTRUCTION ON THE AFFIRMATIVE DEFENSE OF DURESS WAS NOT CONSISTENT IN EXPLAINING THAT THE STATE BORE THE BURDEN OF PROVING THE ABSENCE OF DURESS BEYOND A REASONABLE DOUBT BEFORE DEFENDANT COULD BE FOUND GUILTY OF ANY OF THE CHARGES. (Partly raised below).
B. PROSECUTOR MOCKED THE LAW OF DURESS.
POINT III: THE TRIAL JUDGE'S FAILURE TO GRANT THE MOTION FOR CHANGE OF VENUE VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.
POINT IV: THE PROSECUTION'S PEREMPTORY STRIKE OF THE ONLY AFRICAN-AMERICAN MEMBER OF THE JURY PANEL AT THE TIME VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO AN IMPARTIAL JURY.
POINT V: DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL BY AN IMPARTIAL JURY WAS VIOLATED WHEN, DURING DELIBERATIONS, ONE JUROR REPORTED TO THE OTHERS WHAT SHE LEARNED WHEN SHE CONDUCTED RESEARCH ON THE INTERNET ON GANG [ARCANA] DISCUSSED AT TRIAL.
POINT VI: THE COURT'S REFUSAL TO EXCLUDE DEFENDANT'S SINISTER, AND ENTIRELY IRRELEVANT, STREET NAME WAS PREJUDICIAL AND VIOLATED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
POINT VII: THE TERM OF LIFE, WITH 63 3/4 YEARS WITHOUT PAROLE, IS EXCESSIVE.
JAMES S. RUSSELL
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR CHANGE OF VENUE.
POINT II: THE TRIAL COURT ERRED IN DENYING SEVERANCE AND NOT ORDERING A SEPARATE TRIAL
FOR DEFENDANT.
POINT III: THE PROSECUTOR COMMITTED A BATSON/GILMORE VIOLATION.
POINT IV: THE TRIAL COURT ERRED BY PERMITTING A POLICE DETECTIVE TO TESTIFY AS A "GANG EXPERT" FOR THE STATE.
POINT V: THE TRIAL COURT ERRED IN PERMITTING DEFENDANT'S STATEMENTS BEFORE THE TRIAL COURT IN ANOTHER CRIMINAL CASE TO BE USED AS SUBSTANTIVE EVIDENCE AGAINST DEFENDANT IN THIS CASE.
POINT VI: TOO MUCH HEARSAY FROM ALLEGED CO-PERPETRATORS WAS ADMITTED AGAINST DEFENDANT DURING THE STATE'S CASE-IN-CHIEF (PLAIN ERROR).
POINT VII: PROSECUTORIAL MISCONDUCT CAUSED AN UNFAIR TRIAL.
POINT VIII: DEFENDANT'S RIGHT TO A FAIR JURY TRIAL WAS INFRINGED BECAUSE OF JUROR ISSUES THAT AROSE DURING TRIAL AND DURING DELIBERATIONS.
POINT IX: DISCOVERY VIOLATION SHOULD HAVE DISALLOWED EVIDENCE INTRODUCED AGAINST DEFENDANT AT TRIAL.
POINT X: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
TRISHAWN F. COCHRAN
POINT I: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FAILING TO SEVER DEFENDANT'S TRIAL FROM HIS CO-DEFENDANTS BECAUSE OF THE PREJUDICE FROM "GUILT BY ASSOCIATION" WHICH RESULTED FROM THE JOINDER.
POINT II: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL MADE AT THE END OF THE STATE'S CASE.
POINT III: TESTIMONY CONCERNING THE MEANING OF WORDS AND PHRASES USED BY MEMBERS OF THE BLOODS STREET GANG WERE IMPROPER "NET OPINIONS."
POINT IV: ERRORS IN THE TRIAL COURT'S JURY CHARGE DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
A. THE TRIAL COURT'S "ELECTION" CHARGE WAS FLAWED AND UNDERMINED DEFENDANT'S FIFTH AMENDMENT RIGHTS (NOT RAISED BELOW).POINT V: THE 17 YEAR CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR WITNESS TAMPERING ON COUNT EIGHT WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF THE COURT'S SENTENCING DISCRETION.
B. THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY TO CONSIDER THE DEFENDANT'S "GUILT OR INNOCENCE" (NOT RAISED BELOW).
We have also thoroughly reviewed and considered all of the arguments contained in Scott's six-page, mostly-handwritten pro se supplemental brief.
A.
We start with Scott's, Reeves's, and Russell's arguments that they were entitled to a change of venue, alleging that pretrial publicity and extensive press coverage of the Olivares and Vazquez murders were highly inflammatory and unduly prejudicial. The trial court initially denied the motion without prejudice. While acknowledging the extensive reporting by the Asbury Park Press, the court did not find the level of coverage pervasive enough to presume prejudice. Quoting State v. Harris, 156 N.J. 122, 143 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001), it also did not find the headlines and articles created a "torrent of publicity" and "carnival-like setting," which "so corrupted [the trial atmosphere] that prejudice may be presumed." Consequently, defendants "failed to demonstrate by clear and convincing evidence that the media accounts [created the] presumptive prejudice necessary to change venue or import a foreign jury."
During jury selection, the court asked all potential jurors the following question: "Do you know anything about a multi- defendant trial occurring in Ocean County within the last two years where the defendants faced the prospect of life imprisonment?" If potential jurors answered yes, the court probed further into their knowledge of the previous proceeding, their source of information, and their ability to remain fair and impartial.
Near the conclusion of jury selection, defendants renewed their application for a change of venue. They argued that notwithstanding the court's vetting, a substantial number of potential jurors — perhaps as many as fifty-one out of a total of two hundred — were familiar with some or all of the reported details of the Olivares murder and its connection with the present charges. They argued that notwithstanding the excision of those potential jurors who indicated that their knowledge would affect their impartiality, the selected jury was inevitably tainted.
The court denied the motion, concluding that defendants failed to demonstrate presumed or actual prejudice. It found that defendants' arguments "lack[ed] detail and rel[ied] on mere speculation," and that they had failed to show the selected jurors had "actual partiality or hostility" that could not be set aside. Thus, after "vigilant scrutiny regarding the realistic probability of prejudice from any pretrial publicity," the court determined that the selected jury was fair and impartial, and that a change of venue was not warranted.
In its post-verdict decision denying defendants' motion for a new trial, the trial court concluded that its denial of defendants' motion for a change of venue was proper, particularly since "six open-ended questions were permitted to be asked of the prospective jurors during jury selection. In addition, the [c]ourt permitted extensive questioning by all counsel and liberally granted challenges for cause."
We review a judge's decision whether to change venue under an abuse of discretion standard. State v. Nelson, 173 N.J. 417, 476-77 (2002). Criminal defendants have both state and federal constitutional rights to a fair trial by an impartial jury. State v. Loftin, 191 N.J. 172, 187 (2007). This right protects a defendant from pretrial and mid-trial publicity that may affect a juror's perception of the case. State v. Timmendequas, 161 N.J. 515, 551 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
To assure impartiality in criminal trials, courts must excuse potential jurors who have formed an opinion as to the defendant's guilt or innocence. State v. Williams, 93 N.J. 39, 61 (1983). "Only if it is demonstrated that 'the juror can lay aside his [or her] impression or opinion and render a verdict based upon the evidence presented in court' will extraneous exposure to the facts of the case not be grounds for automatic disqualification." Ibid. (quoting State v. Sugar, 84 N.J. 1, 23 (1980)).
Where such a trial cannot otherwise be had in a particular venue, Rule 3:14-2 authorizes a trial court to order a change of venue or to empanel a foreign jury. The Rule requires a trial judge to grant a motion for a change of venue or for a foreign jury if the judge "finds that a fair and impartial trial cannot otherwise be had." Ibid. The judge "must consider whether the change of location is 'necessary to overcome the realistic likelihood of prejudice resulting from pretrial publicity.'" Nelson, supra, 173 N.J. at 475 (quoting Williams, supra, 93 N.J. at 67 n.13). The inquiry pertinent to that decision is "whether an impartial jury could be obtained from among the citizens of the county or whether they are so aroused that they would not be qualified to sit as a jury to try the case." State v. Wise, 19 N.J. 59, 73 (1955).
Courts distinguish between "'cases in which the trial atmosphere is so corrupted by publicity that prejudice may be presumed, and cases in which pretrial publicity, while extensive, is less intrusive, making the determinative issue the actual effect of the publicity on the impartiality of the jury panel.'" Nelson, supra, 173 N.J. at 475 (quoting State v. Biegenwald, 106 N.J. 13, 33 (1987)).
Cases involving presumed prejudice "are relatively rare and arise out of the most extreme circumstances." State v. Koedatich, 112 N.J. 225, 269 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). They involve situations where the community has been saturated with inflammatory and prejudicial pretrial publicity, and there has been an insufficient effort to "root out" jurors exposed to it. Harris, supra, 156 N.J. at 153. Such publicity may include editorial opinions on a defendant's guilt or innocence, or media pronouncements on a defendant's "death-worthiness." Id. at 144-48. Thus, there must be a deluge of media activity that creates "a carnival-like setting in which 'the trial atmosphere is so corrupted by publicity that prejudice may be presumed.'" Id. at 143 (quoting Biegenwald, supra, 106 N.J. at 33). To determine whether presumed prejudice exists, a court is obliged to consider such factors as:
(1) evidence of extreme community hostility against defendant;
(2) prominence of either the victim or defendant within the community;
(3) the nature and extent of news coverage;
(4) the size of the community;
(5) the nature and gravity of the offense; and
(6) the temporal proximity of the news coverage to the trial.
[Nelson, supra, 173 N.J. at 476.]
Where prejudice is not presumed, "a court must evaluate whether under the totality of circumstances 'the jury process resulted in a fair and impartial jury' to determine if a change of venue is necessary to overcome the realistic likelihood of prejudice." Ibid. (quoting Koedatich, supra, 112 N.J. at 274). To determine actual bias as a result of pretrial publicity, the court relies on a voir dire examination of the jurors. Koedatich, supra, 112 N.J. at 274. An appellate court gives special deference to a trial court's determination regarding jury bias, and ordinarily will affirm absent an abuse of discretion. Nelson, supra, 173 N.J. at 476-77.
This case is not one of these rare situations where prejudice may be presumed due to a circus-like, inflammatory atmosphere. The nature and extent of the news coverage did not demonstrate presumed prejudice. News reports that simply recite the charges against the accuseds and present an outline of facts alleged in the indictment are not unduly prejudicial. Harris, supra, 156 N.J. at 142. Criminal defendants are not entitled to jurors who are totally ignorant of the facts and issues in their case. State v. Harvey, 151 N.J. 117, 211 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).
There was no evidence of extreme community hostility, given the jurors' vague recollections of the underlying facts in the Olivares matter. Neither defendants nor Vazquez were prominent members of the community. Thus, despite the gravity of the charges, the majority of factors in Nelson weigh in favor of the State's position.
Likewise, there was no actual prejudice. The trial court specifically questioned each juror about knowledge of another multi-defendant trial in Ocean County within the last two years where defendants faced the prospect of life imprisonment. For jurors who answered in the affirmative, the court made further inquiries into their knowledge of the previous case, their source of information, and their ability to remain fair and impartial. The court excused any potential juror who revealed prejudicial exposure or indicated an inability to remain impartial. It also repeatedly informed jurors of their duty to avoid any news articles or broadcasts. Jurors are presumed to follow the court's instructions. State v. Loftin, 146 N.J. 295, 390 (1996).
Defendants argue that the responses of approximately one-quarter of the total juror pool revealed some knowledge of the connection between the Vazquez and Olivares murders from outside sources. From this unadorned statistic, they contend that the entire venire was poisoned by extensive evidence of prejudicial pretrial publicity on the related murders and street gang violence. They further argue that prospective jurors knew defendants Scott and Russell had been found guilty of murder in the Olivares trial.
Contrary to defendants' assertions, the record does not support these contentions. The jury pool was sufficiently large to allow the court to find twelve impartial jurors and four alternates. We disagree that there was actual prejudice, or that prospective jurors knew Russell and Scott had been convicted in the prior case. The denial of the motion to change venue was correct.
B.
We next address the issue of severance. Russell and Cochran contend that the trial court erred by refusing to sever their trials. Russell argues that severance was necessary because of defendants' inconsistent and adversarial positions, and of confrontation issues involving hearsay. Cochran argues that the joint trial created the danger of guilt by association because evidence of the Olivares proceeding was admissible only as to Russell and Scott. These contentions are not persuasive.
The determination of whether to grant or deny a motion for severance is left to the sound discretion of the trial judge, whose decision will not be set aside absent a clear showing that the decision constituted a mistaken exercise of judicial discretion. State v. Brown, 170 N.J. 138, 160 (2001). Where two or more defendants are charged with offenses arising out of the same act or transaction, or series of acts or transactions, constituting an offense, the disposition of the charges will more likely occur in a single proceeding. See State v. Sanchez, 143 N.J. 273, 281-82 (1996). In light of the strong preference for joint trials for co-defendants, the test for granting severance "is a rigorous one." State v. Brown, 118 N.J. 5 95, 605-06 (1990).
Rule 3:7-6 governs the joinder of criminal offenses:
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.Rule 3:7-7 permits the joinder of defendants:
Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense
or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. The disposition of the indictment or accusation as to one or more of several defendants joined in the same indictment or accusation shall not affect the right of the State to proceed against the other defendants. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.
In deciding a motion to sever, the interest in judicial economy cannot override a defendant's right of a fair trial. Sanchez, supra, 143 N.J. at 282. The trial court, therefore, must balance the interest in economy against the potential prejudice to a defendant. Brown, supra, 118 N.J. at 605. "The danger by association that inheres in all joint trials is not in itself sufficient to justify a severance, provided that by proper instructions to the jury, the separate status of co-defendants can be preserved." Ibid. Likewise, a defendant does not have a right to severance to escape conviction by placing guilt on his or her co-defendant, or to get a better chance of acquittal. Id. at 606; State v. Johnson, 274 N.J. Super. 137, 151 (App. Div.), certif. denied, 138 N.J. 265 (1994).
Courts generally hold that defendants cannot be tried together when their defenses are antagonistic and mutually exclusive or irreconcilable. Brown, supra, 118 N.J. at 605. However, the mere existence of some antagonism, hostility or conflict between defendants is not sufficient. Id. at 606. Moreover, "'[i]f the jury can return a verdict against one or both defendants by believing neither, or believing portions of both, or, indeed, believing both completely, the defenses are not mutually exclusive.'" Brown, supra, 170 N.J. at 160 (alteration in original).
Another basis for severance may arise from the fact that a co-defendant may provide exculpatory testimony if tried separately. State v. DeRoxtro, 327 N.J. Super. 212, 218 (App. Div. 2000). In weighing a request to sever based on the need for a co-defendant's testimony, the key considerations are "(1) the exculpatory nature of the proferred testimony; and (2) the showing that the testimony would be forthcoming in a separate trial." Sanchez, supra, 143 N.J. at 286-87. As the Court explained:
We hold that the trial court should sever a joint trial if the court is reasonably certain that (1) the defendant will call his codefendant as a witness in a separate trial; (2) the codefendant, although unwilling to testify at a joint trial, will testify at a separate trial either prior or subsequent to his own trial; and (3) the codefendant's proffered testimony will be credible and substantially exculpatory . . . . A codefendant's conditional offer to testify should carefully be assessed by a trial court in determining whether the risk of perjury outweighs the likelihood that the proffered testimony is trustworthy. But the focus of the severance analysis should be on
the exculpatory value of the proffered testimony, and not on whether the defendant requests to be tried before his codefendant.
[Id. at 293.]
In this case, there was no clear showing that any co-defendant would have testified in a separate trial or that the testimony would have exculpated Russell or Cochran. Because a severance should not be granted based on the mere possibility that a co-defendant will testify at a separate trial, the court below properly applied the legal standard in Sanchez.
Additionally, there were no antagonistic defenses raised. Although Reeves admitted being the shooter, he claimed that Powell gave him the order to kill. Thus, Reeves's testimony in some ways benefited both Russell and Cochran. Moreover, the defenses were not mutually exclusive or irreconcilable. Indeed, the jury found Russell guilty on all counts, but found Cochran guilty only on the counts involving witness tampering.
Cochran also argues that he was unduly prejudiced by the overtones of guilt by association based upon the Olivares matter that exposed Scott and Russell to life sentences. However, the trial testimony indicated that neither Cochran nor Reeves were defendants in the Olivares case. Also, Cochran, unlike the others, was acquitted of murder and attempted murder, strongly signaling that the jury properly evaluated the evidence against each individual defendant and did not find Cochran guilty because of his association with Scott or Russell.
Cochran also was not prejudiced by the admission of testimony on "street gang membership, discipline, hierarchy and conduct." The State's expert testified that it was not a crime to be a member of the Bloods street gang and that, without proof of criminal culpability, a defendant such as Cochran could not be found guilty of a crime simply because his or her friend was a criminal. Moreover, the evidence of street gang activity leading to Vazquez's murder and Cochran's role in witness tampering were inextricably linked.
Cochran next argues that the court erred by failing to sever his trial because he was unfairly prejudiced by inadequate instructions on the guilt of each defendant, and on the proper use of evidence concerning the prior trial and street gang membership. Because Cochran did not object to these instructions, the appropriate standard of review is plain error, State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001), which requires an assessment of whether the error was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971).
Cochran first argues, without any elaboration, that the court's instruction to the jury to determine the guilt of each defendant separately failed to ameliorate the prejudice, and "was so poorly prepared and fell so short of its duty that it made the defendant's conviction[s] on counts six and seven inevitable." To the contrary, with respect to separate offenses and separate counts, the court twice charged the jury as follows:
The fact that you may find a particular defendant guilty or not guilty of a particular crime should not control your verdict as to any other crime charged against that defendant, and it should not control your verdict as to any other charge against any other defendant.Thus, the court instructed the jury to deliberate separately concerning each defendant on each count. See Brown, supra, 170 N.J. at 162.
Regarding the Olivares matter and gang membership, the trial court instructed the jury that evidence of other crimes, wrongs or acts could only be used to demonstrate motive or plan, and that it could not be used to show that a defendant had "a tendency to commit crimes or that he is a bad person." It explained that, as a motive for the murder of Vazquez and attempted murders of Granados and Morales, the State had introduced evidence that Russell and Scott were on trial in another case where Granados was a witness against them.
The court also instructed the jury that membership alone in the Bloods street gang was "not in and of itself a crime." It explained that evidence of defendants' membership, and the street gang's "organization, hierarchy, discipline and methods of operation" were introduced by the State only to show motive and plan. The court added:
That is, you may not decide that just because defendant has been involved in another trial or is a member of a gang, he must be guilty of the present crimes. I have admitted the evidence only to help you decide the specific question of motive or plan. You may not consider it for any other purpose and may not find a defendant guilty now simply because the State has offered evidence that he has been involved in these other activities.It is presumed that the jury followed the court's instructions. Loftin, supra, 146 N.J. at 390. We are unpersuaded by Cochran's argument that he should have been tried separately because these instructions supposedly precluded a fair assessment by the jury of his culpability.
Russell contends that severance was warranted in part because of "confrontation concerns." He argues that the admission of various statements by co-defendants, who did not testify at trial, violated his confrontation rights because he was unable to cross-examine them. Notably, Russell fails to support this argument with any persuasive legal authority.
Criminal defendants have the constitutional right to confront witnesses against them. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; State v. Branch, 182 N.J. 338, 348 (2005). "The right of confrontation is an essential attribute of the right to a fair trial, requiring that a defendant have a 'fair opportunity to defend against the State['s] accusations.'" Ibid. (quoting State v. Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). This right is exercised through cross-examination. Ibid.
The Confrontation Clause prohibits the use of an out-of-court testimonial hearsay statement unless the person who made the statement is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination. State v. Cabbell, 207 N.J. 311, 329-30 (2011). The United States Supreme Court explained:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose . . . is to establish or prove past events potentially relevant to later criminal prosecution.For confrontation purposes, testimonial statements include those in which witnesses "bear testimony" against the accused by making "a formal statement to government officers," Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192 (2004), as well as certain statements that are the product of police interrogation. See Cabbell, supra, 207 N.J. at 329.
[Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006).]
It is well established that the co-conspirator exception does not offend a defendant's constitutional right to confront witnesses. State v. Savage, 172 N.J. 374, 402 (2002). To qualify for admission, however, the State must show:
First, the statement must have been made in furtherance of the conspiracy. Second, the statement must have been made during the course of the conspiracy. Lastly, our courts have held that there must be evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it.A co-conspirator's statement, therefore, is admissible if corroborated with sufficient independent evidence that engenders a strong sense of its inherent trustworthiness. Savage, supra, 172 N.J. at 403; see also State v. Boiardo, 111 N.J. Super. 219, 230 (App. Div.) (holding hearsay statements by co-defendants in furtherance of a conspiracy in which the defendant was a participant did not violate the defendant's Sixth Amendment right to be confronted by witnesses against him), certif. denied, 57 N.J. 130 (1970), cert. denied, 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d 213 (1971).
[State v. Phelps, 96 N.J. 500, 509-10 (1984) (citations omitted).]
Here, the statements of Russell's co-defendants were admissible under the co-conspirator exception to the hearsay rule. Notably, these were not statements made to the police; rather, they were statements made to other members of the conspiracy. For example, during a recorded conversation with Powell on October 9, 2008, Russell asked if Powell had the chance to "hit 'Brave [Cochran]'" to let him "know that, that shit gotta be done by Sunday, Monday the latest cause niggers go to Court Tuesday." Powell testified that he knew Russell was talking about the targeted witness. Reeves's testimony corroborated these statements by Russell and Powell regarding the witness. Thus, co-defendants' statements were made in furtherance and during the course of the conspiracy in which Russell was a participant, and their introduction at trial, did not violate his right of confrontation. Accordingly, there was no basis to sever the trials.
Scott, Russell, and Reeves argue that they were denied a fair trial by the prosecutor's improper use of a peremptory challenge to remove the only remaining African-American juror on the panel at the time. We cannot agree.
The juror's responses to the court's questionnaire was unremarkable. During the open-ended questions, the juror told the court that she could consider the evidence and the law with an open mind. She added:
[F]irst of all, you have to understand what the evidence is presented and if the evidence is not, you know, strong enough to prove the case, then how could you say the person is guilty or not guilty. First you have to understand both sides because there are three sides to every story. There is the truth of their story and then there is the truth of someone else's story and the truth lies in the middle.The juror believed that she could serve well, explaining:
This is my first time I've ever been called as a juror, but I understand that you are supposed to be tried by your peers and your peers are supposed to look like you so just looking at the jurors, I am the only one that looks like the people who are being tried so I feel that there needs to be a balance.When asked what she considered the most important constitutional protection, she replied that "speaking as a black woman, everyone is entitled to their rights and that means a fair trial." She continued:
That means to be treated as human beings regardless of your color and I feel that this is the most important here in America because black people have struggled for so many years without having their rights and I feel that it's most important we should keep that right.
The juror, who was a teacher in the Newark school system, did not believe that every individual in a street gang was involved in criminal activity, explaining that she had students in her class who were involved with street gangs and nonetheless went on to graduate. When asked if she would have any difficulty returning a guilty verdict, she answered with a question, "[b]eyond a reasonable doubt, and the State proved it"? She then responded, "I wouldn't have a problem convicting as long as I heard both sides."
The following day, before continuing the voir dire, the prosecutor informed the court in chambers that he would seek to exercise a peremptory challenge to excuse the juror, the only African-American then part of the selection-in-progress jury at the time. The prosecutor did not elaborate on his reasons. While defense counsel appreciated the advance warning, they indicated their intention to challenge the juror's excusal by the State.
Voir dire continued, at which time the juror told the court that she had a Masters degree in special education and had been a teacher for forty years. She was an empty nester with two college-educated, married children, and one grandchild. She watched CNN and culinary shows on television, read the Star Ledger and New York Times, and listened to music, including "Hip Hop," on the radio. In her spare time, she traveled around the world, visiting six continents. When asked if there were anything that would affect her ability to be a fair and impartial juror, she said no.
Defense counsel moved to preclude the juror's removal. They argued that defendants were persons of color, and that the inclusion of an African-American juror would add balance to the jury, "even though it's only one person out of [sixteen]." They noted that of two hundred potential jurors, only two African-Americans had been called to the jury box, and that the court had dismissed the other one for cause after the prosecutor had raised questions about the juror's cousin, who had been charged with armed robbery and was being defended by one of the defense attorneys in the present trial.
The prosecutor argued that he did not use a peremptory challenge to remove the other prospective African-American juror, and that he wanted to excuse the second such juror because of her views and opinions, not her race. Specifically, he objected to her comment that there were "three sides to every story," which he thought suggested an unwillingness "to accept the evidence of one side or another." When asked, "if the State were to prove the charges beyond a reasonable doubt, would [she] have any difficulty returning a guilty verdict," the prosecutor noted, "she hesitated, perceptibly for three, four or five seconds," and then answered with a question. Based on his experience, the prosecutor believed that if she had to think about the question, she should not be on the jury. He then added:
And then she says, after I asked her if she heard your Honor explain what [was] the definition of reasonable doubt, she says, I wouldn't have a problem convicting as long as I heard both sides. Well, Judge, there may very well be only one side in this case, which again that leads me to believe that possibly she's going [to] think these defendants are not getting a fair trial, that they were prevented from telling their side if they exercise their right not to testify which is perfectly their right. But I have some serious reservations about whether this lady would be willing to evaluate evidence, take it really for what it's worth, talk to the other jurors, and come to a verdict based on what she hears in the courtroom.
I only need a slight bias to exercise a peremptory challenge, Judge, and I have a feeling that that's here in this case. The only answer she should have given to that question about [whether she would have] any
difficulty on a verdict is no and that's not the answer we got and that's not acceptable to the State.
By the time of this argument, the trial court had actually vetted 162 potential jurors, of whom sixty-five had been asked voir dire questions and fifteen had been seated in the jury box. Citing State v. Osorio, 199 N.J. 486, 492 (2009), the court determined that defendants failed to make a prima facie showing that the pending peremptory challenge was exercised on the basis of race or ethnicity. After considering the State's overall practice in exercising its peremptory challenges, it did not find that defendants had established a clear pattern of group bias. It explained that four other potential jurors of African-American descent had been dismissed for good cause, including: one male and one female, who had financial hardships; another male, who had a family member with a pending criminal matter in Ocean County; and another female, who had requested to be excused from the case because she lived near one of the defendants and felt uncomfortable. The court, therefore, denied as premature defendants' motion to preclude the removal of the juror. If the issue were to be revisited, however, the court stated that it would consider the ultimate composition of the jury selected to try the case. The State ultimately excused the juror and the selection process continued.
Jury selection was completed three days later. The final panel included at least one person of color.
Appellate review of a trial court's decision on a contested peremptory challenge is for an abuse of discretion. Osorio, supra, 199 N.J. at 509. Substantial deference is owed to the trial court's findings. State v. Clark, 324 N.J. Super. 558, 571 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000).
The United States and New Jersey constitutions prohibit a prosecutor from exercising peremptory challenges to excuse potential jurors on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 82-83 (1986); Osorio, supra, 199 N.J. at 492. In determining whether a prosecutor exercised peremptory challenges unconstitutionally, our courts employ a three-step paradigm to assess claims that racial bias or other invidious discrimination has infected the process of jury selection:
Step one requires that, as a threshold matter, the party contesting the exercise of a peremptory challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity. That burden is slight, as the challenger need only tender sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden then shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. In gauging whether the partySee also Hitchman v. Nagy, 382 N.J. Super. 433, 444 (App. Div.) (holding that a trial court has the authority to intervene sua sponte when it suspects invidious discrimination is being practiced during jury selection), certif. denied, 186 N.J. 600 (2006).
exercising the peremptory challenge has acted constitutionally, the trial court must ascertain whether that party has presented a reasoned, neutral basis for the challenge or if the explanations tendered are pretext. Once that analysis is completed, the third step is triggered, requiring that the trial court weigh the proofs adduced in step one against those presented in step two and determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias.
[Osorio, supra, 199 N.J. at 492-93.]
Here, before the trial court determined whether prima facie evidence of discriminatory intent existed, the State sua sponte explained its rationale for exercising the peremptory challenge. Although this short-circuited the Osorio procedure, defendants suffered no prejudice. Even if low-threshold, prima facie evidence of discrimination existed, however, there was a wealth of evidence proving that the contested peremptory challenge was going to be exercised on constitutionally permissible grounds. The court had previously excused, without objections, four prospective persons of color for cause. The State provided a non-pretextual and reasoned basis for the challenge. The record is bereft of evidence that the State was in engaged in a clear pattern of group bias by the prosecutor.
Although the challenge removed the only African-American juror as of that point, this fact alone was insufficient to demonstrate the existence of an inference of discrimination. See State v. Bey, 129 N.J. 557, 584-85 (1992) (no prima facie showing where prosecutor exercised one peremptory challenge against the only remaining African-American juror and four against non- African-American jurors, and where six African-American jurors had been excused for cause, including one on the motion of defense counsel), supplemented by 137 N.J. 334 (1994), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995); State v. Lewis, 389 N.J. Super. 409, 420-22 (App. Div.) (no prima facie showing where prosecutor used peremptory challenges to exclude three African-American jurors, and two African-American jurors remained), certif. denied, 190 N.J. 393 (2007).
Moreover, defendants' motion to preclude the removal of the only African-American juror was denied without prejudice. In its opinion, the court expressly stated that the motion was premature and that, in the event the issue were revisited, it would consider the ultimate composition of the jury. Defendants, however, never renewed their motion, and the final jury panel included at least one African-American juror. Accordingly, we reject the argument that defendants were tried by a State-created biased jury.
D.
Scott, Russell, and Cochran contend that the trial court erred by permitting the State to offer expert testimony about the Bloods street gang. They argue that State Police Lieutenant Keith Bevacqui was not qualified to testify as an expert on gangs, that his testimony was irrelevant and unduly prejudicial, and that his testimony was a net opinion. We reject these claims.
Prior to trial, the court held an N.J.R.E. 104 hearing to determine whether Bevacqui would be allowed to testify as an expert about street gangs generally and the Bloods street gang in particular. At the hearing, the State elicited the qualifications of Bevacqui and the specific contents of his proffered testimony, and entered his report into evidence. All of the defense attorneys had the opportunity for cross-examination.
Citing State v. Torres, 183 N.J. 554 (2005), the trial court analyzed the use of expert testimony about street gangs under N.J.R.E. 702. It found that: (1) Bevacqui's intended testimony concerned the structure, organization, history, practices, and identification of the Bloods street gang, which were subjects beyond the ken of the average juror; (2) the testimony was sufficiently reliable; and (3) Bevacqui had sufficient expertise in criminal street gangs and the Bloods to offer the intended testimony.
The court then applied the four-factor test of State v. Cofield, 127 N.J. 328, 338 (1992), and concluded that the street gang-related evidence was admissible under N.J.R.E. 404(b) to show knowledge or motive. It found that evidence of defendants' membership in the Bloods street gang was relevant because it had the capacity to provide the context for Vazquez's murder. It also found that there was a sufficient link between the criminal conduct alleged in the indictment and the rules and conduct alleged by Bloods affiliation, that the evidence was central to the case, and that its probative value was not outweighed by potential prejudice.
At trial, Bevacqui testified about the history, symbols, language, and street names associated with the Bloods street gang. He also testified about the street gang's organization, hierarchy, and rules, and explained certain terms and expressions used by its members such as barbecue and Big Homey.
Bevacqui opined that all street gangs were criminal enterprises, and that most, but not all, of their members were criminals. To determine whether someone was associated with a criminal street gang, he explained that two of seven criteria listed in N.J.S.A. 2C:33-29 must be present, including: self-admission; official statements by law enforcement; electronic communication; photographs with other gang members; gang colors; tattoos; and other indicia of gang activity such as hand signs. In his opinion, defendants were members of the Bloods street gang because their tattoos, clothing, electronic communications, and hand signs met the statutory criteria.
Relying on his review of discovery documents, Bevacqui offered the opinion that Reeves had received a direct order to shoot Granados. He further believed that if Reeves failed or refused to follow that order he could have been disciplined — including being murdered — by the Bloods.
An appellate court reviews a trial court's decision to admit or exclude expert testimony for an abuse of discretion. Torres, supra, 183 N.J. at 567. An appellate court should only disturb the trial court's decision when it commits a clear error of judgment. Harvey, supra, 151 N.J. at 184.
If specialized knowledge will assist the jury "to understand the evidence or to determine a fact in issue," a witness who possesses "knowledge, skill, experience, training or education" on the subject will be permitted to offer expert testimony. N.J.R.E. 702. Testimony in the form of an opinion that is otherwise admissible is not objectionable even if it embraces an ultimate issue to be decided by the jury. N.J.R.E. 704.
If properly qualified, an expert may give street gang-related testimony. Torres, supra, 183 N.J. at 559. The Court has found that the structure, organization, and procedures of street gangs are beyond the ken of the average juror, and that such testimony may be helpful to a jury's understanding of the relevant issues at trial. Id. at 573. Thus, the State may offer properly qualified expert testimony to explain a defendant's role as the leader of a street gang, provided it is limited to areas that fall outside the jurors' common knowledge. Ibid.
In Torres, the State presented expert testimony concerning the operations and structure of a Latino street gang to show the leader's actions as an alleged accomplice and co-conspirator in the murder of a gang member. Ibid. The Court concluded that such evidence was relevant to show the connection between the defendant's actions as the gang's leader, and the actions of other members who actually committed the murder. Ibid. It explained that the expert opinion provided "a coherent assessment of the structure, operations, and disciplinary rules" of the gang, which gave the jury a context to evaluate the defendant's statement and the testimony of a former gang member. Id. at 579.
Russell contends Bevacqui was not qualified to render expert testimony concerning street gang activity, specifically the Bloods. He argues that Bevacqui could not provide the name of any "source or reference book accepted in his purported field of expertise," that he did not have a professional certification from the "East Coast Gang Investigators Association," that he was not a "Certified Gang Professional," and that he had not written any books or taken any tests on the subject. He particularly challenged the introduction of Bevacqui's testimony about "gang signs and language" and his interpretation of "some of the words and phrases heard on the intercepted phone calls."
At the N.J.R.E. 104 hearing, Bevacqui testified that he had been employed by the New Jersey State Police for over twenty-four years. Beginning in 1988, his duties included investigating and gathering intelligence on criminal street gangs. In April 1997, he was assigned to the Street Gang Unit, where he remained until January 2005, when he became the Assistant Bureau Chief of the Intelligence Management Unit.
Throughout his career, Bevacqui worked with over a hundred confidential informants to gather information about street gangs, and also debriefed gang members and associates. He attended approximately twenty-five seminars or courses on street gangs, including a 1989 conference in Atlantic City. Additionally, he participated as an instructor or speaker at seventy-five to one hundred seminars of this kind. From 1997 to 2007 or 2008, he reviewed street gang materials on a daily basis, and participated in surveillances and gang investigations. During that time, he became familiar with the Bloods street gang and its structure, organization, and methods of operation. Bevacqui authored articles on street gangs, was a member of the East Coast Gang Investigators Association and California Gang Investigators Association, and was twice previously qualified as an expert witness in criminal street gangs.
In Torres, supra, 183 N.J. at 574-75, 579, the Court concluded that the State's investigator was qualified to testify as an expert on Latino gangs based on his work in law enforcement for twenty years, his experience tracking and assessing gang trends, his classroom training, his presentation of lectures on street gangs, his investigations of gang-related crimes, and his interviews of gang members. It held that the investigator reasonably obtained information on gang activities from the interviews, and that his combined experiences provided a coherent assessment of the gang's structure, operations, and disciplinary rules. Id. at 579. It further held that the investigator's testimony gave the jury a context in which to evaluate the testimony of a former gang member, and noted that the trial court had limited his testimony to a specific area. Ibid.
The trial court did not abuse its discretion by finding that Bevacqui was qualified to testify as an expert on street gangs, including the Bloods. Like the investigator in Torres, Bevacqui had experience, training, and knowledge acquired over many years. His expertise came from various sources and was sufficiently reliable to assist the jury in understanding the evidence. Torres, supra, 183 N.J. at 579; see State v. Frost, 242 N.J. Super. 601, 615 (App. Div.) (holding that a witness could acquire expertise by occupational experience), certif. denied, 127 N.J. 321 (1990).
Russell and Scott argue that Bevacqui's testimony was not relevant, and that its prejudicial effect outweighed its probative value. They argue that testimony about the Bloods's violent tendencies was inadmissible under N.J.R.E. 403, that testimony about their gang membership was not evidence of motive, and that testimony labeling gang members as criminals was unduly prejudicial.
The court ruled that Bevacqui's testimony was relevant to the issues of motive and knowledge. It agreed with the State that this evidence was necessary to provide the context in which Vazquez's death took place by showing the connections between the actions of Russell and Scott, and those of Cochran, Powell, and Reeves. The State argued that without this evidence, the jury might be resistant to the idea that young men purposely would inflict deadly harm on a stranger without any apparent reasons such as theft or substantial provocation.
All relevant evidence is admissible, unless otherwise excluded. N.J.R.E. 402; State v. Burr, 195 N.J. 119, 126 (2008). Relevant evidence has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. To determine relevancy, a trial judge must "focus on the 'the logical connection between the proffered evidence and a fact in issue.'" State v. Covell, 157 N.J. 554, 565 (1999) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "Once a logical relevancy can be found to bridge the evidence offered and a consequential issue in the case, the evidence is admissible, unless exclusion is warranted under a specific evidence rule." Burr, supra, 195 N.J. at 127.
A court may exclude relevant evidence if "its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. During the weighing process, however, a court may admit evidence with overwhelming probative value even if highly prejudicial provided the evidence is central to the case. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 496 (1999).
Here, the State offered Bevacqui's opinion on street gang hierarchy, customs, and language to show that defendants were all members of the Bloods, that Scott and Russell had the authority to order a murder, and that they had ordered the murder during phone conversations from the jail. This evidence was relevant to explain why Reeves would shoot a complete stranger. See Torres, supra, 183 N.J. at 573 (holding evidence about a defendant's gang involvement was admissible because it was relevant to show the connection between his actions as leader of the gang and the actions of other gang members who actually committed the murder); see also State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010) (holding gang-related evidence was relevant because "it explained why [the defendant] would shoot someone with whom he had been on friendly terms by demonstrating a motive for the shooting"), certif. denied, 205 N.J. 78 (2011).
Notwithstanding the relevance of the evidence, a trial court must carefully weigh the expert testimony to determine whether it may be unduly prejudicial. Torres, supra, 183 N.J. at 580. Moreover, the court should give a limiting instruction to the jury "'that conveys to the jury its absolute prerogative to reject both the expert's opinion and the version of the facts consistent with that opinion[.]'" Ibid. (quoting State v. Berry, 140 N.J. 280, 304 (1995)).
The balancing test of N.J.R.E. 403 requires the State to establish that the probative value of the evidence is not outweighed by its apparent prejudice. State v. Long, 173 N.J. 138, 161 (2002). "The mere possibility that evidence could be prejudicial does not justify its exclusion." Id. at 164 (internal quotations marks omitted). Instead, evidence that is unduly prejudicial is excluded "only when its 'probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." State v. Koskovich, 168 N.J. 448, 486 (2001) (alteration in original) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).
Here, evidence of defendants' gang membership was relevant to show motive, intent, and knowledge. However, because evidence of membership in a street gang is strongly suggestive of actual criminal activity, Bevacqui's testimony must also be analyzed as evidence of other crimes under N.J.R.E. 404(b). Goodman, supra, 415 N.J. Super. at 226-28 (holding evidence of gang membership was admissible under N.J.R.E. 404(b) and Cofield to prove motive). A trial court has discretion to determine the admissibility of other-crime evidence. State v. Marrero, 148 N.J. 469, 483 (1997). Because the trial court properly applied the Cofield analysis, we owe deference to its determination. See Goodman, supra, 415 N.J. Super, at 228.
N.J.R.E. 404(b) generally precludes the admission of evidence relating to other crimes or wrongs, except to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity of absence of mistake or accident when such matters are relevant to a material issue of dispute." In Cofield, the Court articulated a four-prong test:
1. The evidence of the other crime must be admissible as relevant to a material issue;
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.
[Cofield, supra, 127 N.J. at 338.]
Bevacqui's testimony was relevant to the issue of motive, which satisfies the first prong. Defendants were gang members at the time of Vazquez's murder and, therefore, the second factor is satisfied. Moreover, the evidence of street gang affiliation was clear and convincing thereby satisfying the third factor. Goodman, supra, 415 N.J. Super, at 230. Finally, the evidence of defendants' gang affiliation was necessary to explain why Reeves shot and killed a stranger. Thus, any prejudice inherent in the testimony about defendants' gang membership was outweighed by its probative value. Although Reeves admitted at trial that he shot the victim, Bevacqui's testimony was needed to explain why the events unfolded the way they did. State v. Jenkins, 178 N.J. 347, 365 (2004) ("in deciding whether prejudice outweighs probative value, 'a court must consider the availability of other evidence that can be used to prove the same point'") (quoting Long, supra, 173 N.J. at 164).
After finding the gang-related testimony admissible, the trial court properly instructed the jury on its limited use. See Goodman, supra, 415 N.J. Super, at 231. Immediately after Bevacqui's voir dire at trial, the court reminded the jury of its previous instruction on the use of expert testimony. The previous instruction, cautioned jurors as follows:
An expert witness is a witness that has some special knowledge, skill, experience or training that is not possessed by the ordinary juror. And who, thus, may be able to provide assistance to the jury in understanding the evidence presented and determin[ing] the facts in this case. You are not bound by such expert's opinion, but you should consider each opinion and give it the weight you deem it is entitled, whether it is great or slight, or may reject it.
In examining each opinion, you may consider the reasons given for it, if any. And you may also consider the qualifications and credibility of the expert.
The court gave similar instructions in its final jury charge. It explained again that the jurors were not bound by an expert's opinion and could reject it. It further explained that the jury did not have to rely on the expert's version of the facts:
It is always within the special function of the jury to determine whether the facts on which the answer or testimony of an expert is based actually exists [sic]. The value or weight of the opinion of the expert is dependent upon you and is no stronger than the facts on which it is based. In other words, the probative value of the opinion will depend upon whether from all of the evidence in the case, you find that those facts are true. You may in fact determine from the evidence in the case the facts that form the basis of the opinion are true, are not true, or are true in part only, and in light of such findings, youAgain, it is presumed that the jury understood and followed these instructions. Loftin, supra, 146 N.J. at 390.
should decide what effect such determination has upon the weight to be given to the opinion of the expert. Your acceptance or rejection of the expert opinion will depend, therefore, to some extent on your findings as to the truth of the facts relied upon. The ultimate determination of whether or not the State has proven defendant's guilt beyond a reasonable doubt is to be made only by the jury.
Scott argues that Bevacqui impermissibly offered opinions on ultimate issues in the case by testifying that members of the Bloods were criminals and that Reeves was ordered to kill the witness. An expert may not "express[] a direct opinion that defendant is guilty of the crime charged[.]" State v. Odom, 116 N.J. 65, 77 (1989). An expert, however, may "characterize[] defendant's conduct based on the facts in evidence in light of his specialized knowledge[.]" Id. at 79. In such cases, "the opinion is not objectionable even though it embraces ultimate issues that the jury must decide." Ibid. Thus, expert opinion testimony that is otherwise admissible is not objectionable because it embraces an ultimate issue in the case. State v. Summers, 176 N.J. 306, 312 (2003).
Here, Bevacqui offered testimony about certain aspects of the Bloods street gang based on his specialized knowledge. He stated that Reeves could have been killed if Reeves did not follow the order to kill the witness, but added: "That's one of the things that could happen to him." He also acknowledged on cross-examination that it was not a crime to be a member of the Bloods street gang, and that every member of the Bloods was not a murderer. Bevacqui, therefore, did not usurp the jury's role of determining an ultimate issue in the case.
Scott and Cochran also contend that Bevacqui's expert testimony was inadmissible because it was a net opinion.
N.J.R.E. 703 requires an expert opinion to be supported by facts or data in the record or of a type usually relied on by experts in the particular field. Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 372 (2011). The corollary of N.J.R.E. 703 is the net opinion rule, which forbids the admission into evidence of an expert's conclusions that are unsupported by factual evidence or other data. State v. Townsend, 186 N.J. 473, 494 (2006). The net opinion rule requires an expert to give the "why and wherefore" of his or her opinion, not a mere conclusion. Ibid.
Here, Bevacqui gave reasons for all of his opinions. His conclusions were supported by factual evidence, years of experience, and logical connections to the present case. They were not net opinions. See id. at 495 (holding that expert's education, training and experience provided a sound foundation for her opinion about domestic violence, and that her conclusion was not a net opinion).
E.
Russell and Scott argue that the trial court erred by admitting into evidence certain statements by Reeves and Powell that did not fall within the co-conspirator exception to the hearsay rule and violated their constitutional right of confrontation.
An appellate court reviews a trial court's decision on the admissibility of evidence for an abuse of discretion. Harvey, supra, 151 N.J. at 166. Evidentiary determinations of trial courts, therefore, are subject to limited appellate scrutiny. State v. Buda, 195 N.J. 278, 294 (2008).
The co-conspirator exception to the usual prohibition of hearsay provides that statements "made at the time the party and the declarant were participating in a plan to commit a crime . . . and . . . made in furtherance of that plan" are admissible against a co-conspirator. N.J.R.E. 803(b)(5). The rationale is that "'because conspirators are substantively liable for the acts of their co-conspirators, they are equally responsible for statements by their confederates to further the unlawful plan.'" Savage, supra, 172 N.J. at 402 (quoting State v. Harris, 298 N.J. Super. 478, 487 (App. Div.), certif. denied, 151 N.J. 74 (1997)).
To qualify for admission under the co-conspirator exception, the State must establish that: (1) the statement was "made in furtherance of the conspiracy"; (2) the statement was "made during the course of the conspiracy"; and (3) there is "evidence, independent of the hearsay, of the existence of the conspiracy and [the] defendant's relationship to it." Phelps, supra, 96 N.J. at 509-10. The last requirement reduces the fear that a defendant might be convicted based solely on evidence that he or she had no opportunity to rebut. Id. at 510-11.
A statement made after the conspiratorial objective is completed is generally not admissible under the co-conspirator exception. Savage, supra, 172 N.J. at 403. A conspiracy, however, may continue "if it is shown that a conspirator enlisted false alibi witnesses, concealed weapons, or fled in order to avoid apprehension." Ibid. Further, "statements relating to past events may be admissible if they are 'in furtherance' of the conspiracy and 'serve some current purpose, such as to provide cohesiveness, provide reassurances to a co-conspirator, or prompt one not a member of the conspiracy to respond in a way that furthers the goals of the conspiracy.'" Ibid, (quoting State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div.), certif. denied, 152 N.J. 188 (1997)).
Russell argues that the several statements by Guzman, Clark, Foskey, Wallace, Feliciano, and Tansley about incriminating statements made by Reeves were inadmissible. Specifically, he argues that Reeves did not make any statements to these witnesses during the course of the conspiracy, but instead made them after the shooting had taken place when the conspiracy had ended and did not serve a current purpose thereof.
None of these statements implicated Russell directly in any conspiracy or substantive crime. Reeves testified at trial that he never met Russell and that Russell never gave him any kind of order or directive. Moreover, Guzman, Clark, Wallace, and Feliciano never mentioned Russell. Thus, the admission of Reeves's statements did not unduly prejudice Russell's right to a fair trial.
Scott argues that several statements made by Powell were inadmissible hearsay and violated his right of confrontation. We disagree.
He challenges the admissibility of Powell's testimony that he relayed to Cochran the instructions given to him by Craighead. The challenged testimony included:
Q. And what did you tell him [Cochran]?
A. I told him YB [Craighead] wanted me to get up with him.
Q. And did he tell you anything. [Cochran]?
A. Yeah. He told me, ah, they wanted him to take care of some bitch.
Immediately preceding this exchange, Powell had testified that he received a call from Craighead, who was housed in the Ocean County Jail. When he reported that Craighead told him to contact Cochran, there was an objection, which the court sustained. Powell then explained that he tried unsuccessfully to call Cochran after speaking to Craighead, but "bumped" into him a few days later. Cochran's response to him was admissible under the co-conspirator exception because it was "made at the time the party and the declarant were participating in a plan to commit a crime . . . and the statement was made in furtherance of that plan." N.J.R.E. 803(b)(5). Powell's statement that Craighead wanted him to contact Cochran was also admissible because it was not offered in evidence to prove the truth of the matter asserted, N.J.R.E. 801, but to offer background to explain why Powell spoke with Cochran.
Scott's remaining hearsay objections are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
F.
Russell, Scott, and Reeves contend that the prosecutor's improper comments during summation deprived them of a fair trial. Scott further argues that the court erred by denying his motion for a mistrial based on prosecutorial misconduct. These contentions are untenable.
The trial court denied defendants' motion for a mistrial following the State's summation. It expressed concern only about the prosecutor's comments that (1) defendants did not cross-examine Powell on the issue of his Big Homey and (2) duress was a great defense for gangs, but concluded that any misconduct did not "rise to the level" required for a mistrial. Instead, the court instructed the jury to disregard those two comments.
"New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012) (citations omitted). A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006) .
"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.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense" in order to warrant reversal. State v. Roach, 146 N.J. 2 08, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (quotations omitted).
Prosecutors are afforded considerable leeway in summations, and are expected to make vigorous and forceful closing arguments. State v. Mahoney, 188 N.J. 359, 376, cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006). They may comment on the facts or on what may be reasonably inferred from the evidence. State v. Wakefield, 190 N.J. 397, 457 (2007) , cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Prosecutors, however, may not make comments that overstep the bounds of propriety or create a real danger of prejudice to the accused. State v. Smith, 167 N.J. 158, 178 (2001). They also may not cast unjustified aspersions on defendants or their counsel. State v. Rodriguez, 365 N.J. Super. 38, 50 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).
"Our task is to consider the fair import of the State's summation in its entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quotation marks and citation omitted).
Three factors guide the Court's assessment of the impact of improper prosecutorial remarks: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them."
[Ibid. (quoting Smith, supra, 167 N.J. at 182)].
An appellate court may reverse a conviction if the prosecutor's misconduct was "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. Thus, "[t]o justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Timmendequas, supra, 161 N.J. at 575 (quoting Roach, supra, 146 N.J. at 219).
We review a motion for a mistrial under a deferential standard, and will not disturb the trial court's decision unless there is an abuse of discretion that results in a manifest injustice. Jackson, supra, 211 N.J. at 407.
Russell contends for the first time on appeal that the prosecutor committed misconduct during summation by minimizing the State's burden to prove accomplice and co-conspirator liability. According to Russell, the prosecutor's argument failed to remind the jury that accomplice liability required the accomplice and principal to share the same mental intent.
An accomplice is a person "who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993). "[T]o find a defendant guilty of a crime under a theory of accomplice liability, it must find that he 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" Id. at 528 (quoting State v. Fair, 45 N.J. 77, 95 (1965)).
Among the many things the prosecutor told the jury, he said the following:
[Reeves] committed the murder, Jamell Scott, James Russell and Trishawn Cochran all had the same purpose and intent that Lee Reeves did when he stood there and pulledContrary to Russell's assertions, and after review of the entire summation, we fail to see how and where the prosecutor misspoke to the extent of diluting the elements of accomplice liability. In fact, he argued to the jury that Russell, Scott, and Cochran shared the same mental intent as Reeves. He also told the jurors that the court would instruct them on accomplice liability, and the court later did so.
that trigger and killed Athelma Vazquez and that purpose was to intimidate and stop Christian Vivar Granados from testifying in the trial of James and Jamell Scott[.]
Russell further argues that vicarious liability is limited to those acts that are reasonably foreseeable consequences of the original conspiracy, and implies that the prosecutor improperly suggested to the jury that it could impose co-conspirator liability on him for the commission of substantive crimes that were not reasonably foreseeable.
Here, the evidence pointed in the direction of defendants' efforts — in a conspiracy — to kill Granados to prevent him from testifying at a trial involving Scott and Russell. Not only did the jury listen to Reeves's explanation for his conduct, it heard telephone calls tape-recorded before the murder in which Russell (1) instructed Powell "that shit gotta be done by Sunday, Monday the latest cause niggers go to Court Tuesday," (2) told Powell to "[h]andle that CVS thing" and (3) urged Powell to "throw a barbecue and speak about that shit." Powell and Bevacqui testified that the term barbecue in this context meant to have someone killed. Because the evidence showed that defendants contemplated murder, Russell's argument about the lack of evidence of reasonable foreseeability is unpersuasive. There was no error with respect to the prosecutor's comments during summation about accomplice and co-conspirator liability.
Russell and Scott contend the prosecutor improperly commented on the failure of defense counsel to cross-examine Reeves about his Big Homey. Russell and Scott argue that this comment referred indirectly to their decisions not to testify, and impermissibly shifted the burden of proof to them.
The trial court found that defendants had no responsibility to cross-examine Powell, but concluded that any error did not "rise to the level" requiring a mistrial. The court instructed the jurors to disregard this statement and not to consider it whatsoever.
The Fifth Amendment forbids a prosecutor from commenting on a defendant's failure to testify because such comment would penalize a defendant's constitutional right against self-incrimination. State v. Scherzer, 301 N.J. Super. 363, 439 (App. Div.), certif. denied, 151 N.J. 466 (1997). A prosecutor may not comment on a defendant's testimonial shortcomings or refer indirectly to the failure of a defendant to present evidence, if such comment could only be referring to the absence of testimony by the defendant. Id. at 439-40; State v. Irizarry, 270 N.J. Super. 669, 675 (App. Div. 1994). Thus, "[r]eversal is mandatory if the prosecuting attorney has unambiguously called attention to defendant's failure to testify in exercise of his [or her] fifth-amendment constitutional right." State v. Williams, 113 N.J. 393, 454 (1988). Notwithstanding the foregoing, a prosecutor's reference to silence may also be cured by a trial court's timely and effective action. Scherzer, supra, 301 N.J. Super, at 441. A curative instruction is deemed adequate if there is no real possibility that the error led the jury to a verdict that could not otherwise be justly reached. Ibid.
In the present matter, the prosecutor made a single comment about defense counsel's failure to cross-examine Powell on his statement that he was not Reeves's Big Homey. The prosecutor, however, did not discuss the significance of such a failure. A review of the record suggests that this comment was made in response to conflicting testimony between Powell and Reeves as to the identity of Reeves's Big Homey. Given the context of the prosecutor's comment, it is unlikely that it could have altered the outcome of the trial. Even if the prosecutor's remark could be interpreted to implicate Russell's right to remain silent, the court's curative instruction rendered the comment harmless.
Russell also argues for the first time on appeal that the prosecutor improperly invited the jury to think about the "hopes and aspirations" of the victim's daughter. This comment, however, was made in response to defense counsel's opening and closing arguments, and testimony in the record. We conclude that in the totality of the summation, and in light of the evidence, the comment had no capacity to unduly prejudice the jury.
Scott and Reeves contend the prosecutor made improper comments about Reeves's defense of duress. They challenge the prosecutor's characterization of Reeves's testimony as "a last-ditch effort, a tale, a Hail Mary Pass," and his explanation that Reeves "didn't know what his defense was until he got up there." Reeves also challenges the following comments as mocking his defense:
[Reeves] had choices. Now he wants to use the gang as a defense. I had no choice, I was going to be killed. Don't hold me fully accountable for what I did. I was under duress. Isn't that a great state of affairs, great thing for gangs now. Oh, you wanted to do something, you're going to die so I got to do a robbery because that's what duress does, it negates guilt. The only thing it doesn't totally negate it for isHe further objects to the prosecutor's remarks that the jury should not allow him "to use the gang as a defense," and the prosecutor's description of duress as "a defense to clear gang members from going in and killing and murdering innocent people."
murder, you can knock it down to manslaughter or aggravated manslaughter, but the court thing, the witness tampering, if you believe it's duress, he's not guilty. Isn't that great?
Scott also challenges the prosecutor's statement that "I bit my lip so hard I almost bled." He claims the prosecutor was improperly expressing a personal reaction to Reeves's testimony.
We discern no merit in the contentions by Scott and Reeves that the challenged comments were so egregious that they deprived both defendants of a fair trial. Frost, supra, 158 N.J. at 83. Regarding the reference to duress in the context of street gangs, the court gave a limiting instruction and it is presumed the jury followed it. Loftin, supra, 146 N.J. at 390. Moreover, these comments, even if improper, were only a small portion of the prosecutor's lengthy summation and, when taken in context, did not unfairly prejudice defendants. See Wakefield, supra, 190 N.J. at 457 (holding that the prosecutor's summation, when read in its entirety, was proper); State v. Setzer, 268 N.J. Super. 553, 565-66 (App. Div. 1993) (holding improper isolated portions of the prosecutor's summation were insufficiently prejudicial to require reversal), certif. denied, 135 N.J. 468 (1994).
Reeves relies on Rodriguez, supra, 365 N.J. Super, at 49, to argue that a prosecutor may not suggest a defendant's defense was "subterfuge" or "trick." In that case, the prosecutor in closing argument repeatedly referred to the insanity defense as an excuse, and implied that justice would only be done if the jury found the defendant guilty. Id. at 51-52. We concluded that the cumulative effect of those improper comments was so prejudicial that a new trial was warranted. Id. at 52-53. In contrast, the isolated comments about Reeves's last-minute defense were made in response to his attorney's summation, and were not intended to disparage the defense of duress.
While the prosecutor's comments regarding duress do not warrant a new trial, his comment about biting his lip in reaction to Reeves's opening argument is more troublesome. "'A prosecutor is not permitted to cast unjustified aspersions' on defense counsel or the defense." Frost, supra, 158 N.J. at 86 (quoting State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991)). A prosecutor, therefore, may not subject defense counsel to disparaging remarks for simply doing his or her job. Ibid. Nevertheless, although this comment was an improper expression of the prosecutor's personal opinion as to Reeves's guilt, it was not only isolated and insufficiently prejudicial by itself to warrant reversal, but the trial court instructed the jurors that statements by counsel were not evidence. See Setzer, supra, 268 N.J. Super, at 566 (holding that an isolated statement by prosecutor did not require reversal because it was the only improper comment and the trial court instructed the jurors that counsel's statements were not evidence).
Reeves contends the prosecutor's improper comments during summation cumulatively deprived him of the right to a fair trial. We are unpersuaded.
In State v. Orecchio, 16 N.J. 125, 129 (1954), the Court held that where "legal errors . . . in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." Therefore, the inquiry on review is whether the cumulative impact of the errors prejudiced the fairness of the defendant's trial. State v. Jenewicz, 193 N.J. 440, 474 (2008). A defendant, however, is entitled to a fair trial, not one that is error free. State v. R.B., 183 N.J. 308, 333-34 (2005).
We are satisfied that defendants would have been convicted even had they received a perfect trial. See State v. Gillispie, 208 N.J. 59, 93 (2011); Loftin, supra, 146 N.J. at 397.
G.
Russell, Scott, and Reeves argue for the first time on appeal that a juror's research on the internet tainted the jury's deliberations and deprived them of a fair trial. Russell also argues that the court erred by denying his motion for a mistrial based on a spectator's comment to jurors.
On the day the jurors were sworn, the trial court instructed them not to "read or listen to anything touching this case in any way. Again, do not read any local newspapers, avoid any [i]nternet news. . . . [D]o not try to research or make any investigation about the case on your own." At the end of each trial day, the court reminded the jurors not to read or discuss anything relating to the case. Moreover, in its final jury charge, the court instructed the jurors that they could not "speculate on matters not in evidence, or concerning which there has been no testimony . . . and your only interest must be to ascertain the truth from the testimony and evidence presented before you during the trial and from no other source."
The Sixth Amendment of the United States Constitution and Art. I, ¶ 10 of the New Jersey Constitution guarantee criminal defendants "the right to . . . trial by an impartial jury." Williams, supra, 93 N.J. at 60. This impartiality requires "'that the jury's verdict be based on evidence received in open court, not from outside sources.'" State v. Bey, 112 N.J. 45, 75 (1988) (quoting Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S. Ct. 1507, 1516, 16 L. Ed. 2d 600, 613 (1966)). Trial courts must protect jurors and their deliberations from illegitimate influences that may taint the verdict. Ibid.
When jurors are exposed to extraneous information, the court must act swiftly to investigate any potential bias and to determine whether the jurors are capable of fulfilling their duty in an unbiased and impartial manner. State v. R.D., 169 N.J. 551, 557-58 (2001). The trial court must make a "probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality." Scherzer, supra, 301 N.J. Super, at 487-88. When there is the possibility of juror misconduct or exposure to comments made by outside sources, the trial judge must question that juror and, if appropriate, the remaining jurors. State v. Bisaccia, 319 N.J. Super. 1, 13 (App. Div. 1999).
A mistrial, however, is not necessary in every instance where a juror may have been exposed to an outside influence. R.D., supra, 169 N.J. at 559. To determine whether the extraneous information had the capacity to influence the jury's result requires the court to consider: "the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings." Ibid. "Ultimately, the trial court is in the best position to determine whether the jury has been tainted." Ibid. The court must then decide whether to allow the trial to proceed after excusing the tainted juror or declare a mistrial. Id. at 558.
A trial court has discretion in the way it investigates allegations of jury misconduct. Scherzer, supra, 301 N.J. Super, at 488. An appellate court reviews a trial court's determination under the abuse-of-discretion standard. R.D., supra, 169 N.J. at 559.
During the trial, a juror reported that an unidentified man made a comment to the jurors as they were walking to the courtroom. The man said: "Guilty or not guilty, come on, let's talk."
The court questioned the juror who had reported the comment. The juror described the person, who was also seen inside the courtroom. The juror discussed it with other jurors in the jury room, but stated that he or she could remain fair and impartial.
A court officer who spoke with the man told the judge that he was "very fidgety, very anxious," that he admitted having attention deficit disorder, that he had two final restraining orders against him and no active warrants, and that he did not know any of the jurors but was "merely attempting to bum a cigarette off of somebody." The man was advised not to return to the courtroom, and left the courthouse shouting profanities.
The trial court then questioned the remaining jurors to determine whether they heard the comment and if they could still be fair and impartial. Most of the jurors heard the comment, but each said it would not prevent them from being fair and impartial. Two jurors, who first heard about the comment in the jury room, also told the court that they could be fair and impartial. Some jurors, however, were upset or concerned by the comment, with one juror estimating the degree of concern at forty percent. Another juror told the judge that "some people might feel intimidated" but denied feeling that way himself, and said he considered it as just a "stupid remark." The court instructed all jurors not to have any further discussions regarding this incident.
Following the questioning of each juror, defense counsel did not ask the court to excuse any for cause. At the end of the court's inquiry, however, Reeves and Russell moved for a mistrial based on the jurors' perception of the guilty-or-not-guilty comment as intimidation. The court denied the motion, noting that it had questioned each juror and was satisfied that a mistrial was not warranted. While acknowledging that jurors expressed some concern, it found that all of them had indicated they could be fair and impartial. It further found that the words guilty or not guilty did not rise to the level of intimidation that would make jurors unable to sit through the trial. When the jurors returned to the courtroom, the court informed them that the man who made the comment had been investigated, that he had no affiliation with anyone involved in the trial, and that he had nothing to do with the trial. The judge also advised the jury that the individual had been barred from the courthouse unless he had a specific business purpose.
The record does not support Russell's contention about jury intimidation. There is no evidence that any juror actually felt intimidated by the guilty-or-not-guilty comment. The one juror who speculated that others might have been intimidated expressly denied feeling that way. Although some jurors were upset by the comment, everyone insisted that they could remain fair and impartial. Moreover, defense counsel did not request anyone's excusal, and the court promptly informed the jurors that the person who made the comment had nothing to do with the trial. Because there was no discernable jury impact from this mid-trial exposure to an extraneous comment, the court did not abuse its discretion by denying Russell's motion for a mistrial.
During deliberations, one juror informed the court by letter that another juror utilized the internet to find information about gangs, including the Bloods street gang, and shared that information with other jurors during deliberations.
The trial judge spoke with the juror to determine the identity of the juror who had used the internet for such research. She described a "large black woman" who was sitting "in the back row." When questioned, the juror told the judge that she could disregard the information about the internet research, that she could reach a decision based solely on the evidence, and that she could be fair and impartial.
The juror who conducted the research was Juror 12. She freely admitted that she researched the phrases "Jim Jones" and "capo status," which had been uttered during the trial, and looked at song lyrics, but denied listening to any songs. She told the jurors that based on the lyrics, it appeared that Jim Jones was "into drugs, looking good and nice cars. In other words, having nice things." She implied that "Jim Jones rock star status" meant that you wanted to look good. She said the information from the internet did not add to or contradict the evidence at trial. Juror 12 stated that she could disregard what she just learned, that she could reach a decision based solely on the evidence, and that she could be fair and impartial. She agreed to refrain from conducting any more research during the trial.
During Powell's testimony, he explained a reference made by Russell in one of the intercepted telephone calls from the Ocean County Jail. At one point in the conversation, Russell said, "Niggers try ya know what I mean Rock Star Jim Jones status." Powell explained that Jim Jones, a Bloods member, was a rapper with "capo status," which was a high-ranking position in the street gang.
The court then individually interviewed the remaining jurors, excluding the four alternates. When asked if they heard anyone mention internet research, six jurors confirmed hearing something about music or a rap song about "Jim Jones rock star status" or what it meant. One juror also heard something about "Master Ru." Four jurors did not hear any discussions about internet research.
All of the jurors told the court that they could disregard the information obtained from the internet, that they could reach a decision based solely on the evidence, and that nothing occurred that would prevent them from being fair and impartial. The court instructed them not to discuss the matter further.
Afterwards, the court placed on the record that it spoke with every juror in the jury room about the origin and source of the outside information as well as any discussions, and that it had asked the jurors whether they could be fair and impartial. It then invited applications by counsel, and received none. Defense counsel did not move for a mistrial, or request the removal of Juror 12.
Because defendants did not object at trial, we will not reverse unless we find plain error, namely, error "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. Applying this standard, we conclude that, considering the swift and entirely appropriate involvement by the trial court, any error was harmless and does not warrant reversal. See, e.g., State v. Sowell, _ N.J. _, _ (2013) (slip op. at 23-24).
The trial court implicitly found that the jurors exposed to the outside information were credible, and its determination is entitled to deference given the court's opportunity to observe their demeanor. R.D., supra, 169 N.J. at 559. The court also gave defense counsel an opportunity to raise an objection after questioning of the jurors, but no one did. The jury resumed deliberations and reached a verdict without any further incident.
H.
Russell contends the court erred by permitting the State to use his statement at the plea-cutoff hearing in the Olivares proceeding as substantive evidence of his guilt. We detect no error.
At trial, the prosecutor sought to read a portion of a transcript from Russell's plea cut-off proceeding in the Olivares case. Russell's defense counsel objected, arguing that the prior statements were made in response to questioning by the court, and were not admissions or declarations against interest. The prosecutor responded that the statements made at the plea cut-off hearing showed Russell had knowledge of discovery documents containing Granados's name and address. The court overruled the objection, and the information was provided to the jury.
N.J.R.E. 410 provides for the inadmissibility in any civil or criminal proceeding of "a plea of guilty which was later withdrawn, of any statement made in the course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn." The purpose of this rule is to promote effective and fair plea bargaining by allowing the defendants to negotiate without fear that their statements will later be used against them. State v. Brabham, 413 N.J. Super. 196, 208 (App. Div.), certif. denied, 203 N.J. 440 (2010).
The court did not err by allowing the State to introduce a portion of the transcript from Russell's plea cut-off hearing. The only statement attributed to Russell during the exchange was his acknowledgment that he had reviewed the discovery in the Olivares case with his attorney. This statement was not made as part of any plea negotiations. Because this statement was not made in connection with any plea bargaining process, considerations of fairness are not implicated by its use in a subsequent trial.
I.
Russell contends the court erred by allowing the State to admit direct connect call records between Reeves and Cochran that were not produced until mid-trial, and that this discovery violation caused an unfair trial. Alternatively, he contends the court erred by failing to grant an adjournment to allow his defense counsel to review this evidence before cross-examining State witnesses about it. We disagree.
On October 14, 2009, the State sought to introduce call detail records during Steven Ehrnman's direct examination. Ehrnman was a supervisor of electronics surveillance group for Sprint Nextel Corporation (Sprint). Ehrnman testified that Cochran and Reeves were listed as subscribers on cell phone accounts associated with direct connect numbers. He explained that the call detail records showed "incoming and outgoing calls, time and duration." Ehrnman said that Sprint kept these records in the ordinary course of business.
At that point, Cochran's defense counsel objected to Ehrnman's testimony based on the late production of the call records. The prosecutor explained to the court that he had spoken to a Sprint representative the previous evening and confirmed that Sprint only documented outgoing direct connect calls. He then drafted a "CDW" (a communications data warrant) to obtain records from Cochran's phone. The appropriate judge signed the warrant, and the prosecutor received the records around 8:30 a.m. that morning and turned them over to Cochran's attorney when counsel arrived in court. The prosecutor explained that he sought the records to verify that Cochran's phone and Reeve's phone were in contact.
Cochran's attorney argued that the State had Reeves's records for weeks, and that the introduction of his client's call records hours before the State called prosecutor's investigator Casey Long to testify about them put the defense at a disadvantage. The court ruled that Ehrnman could finish his testimony for the sole purpose of identifying the call records as business records. It also ruled that defense counsel could have more time to review the records before Long addressed them, and advised counsel to let the court know if further time was needed. Cochran's attorney said that was fine. Russell's defense counsel did not object to the late discovery.
Later that same day, the State recalled Long to testify without objections by any defense counsel. Long stated that there were ninety-seven direct connect calls from Reeves's phone to Cochran's. He determined that there were also several contacts from Cochran to Reeves. Counsel for Cochran and Russell cross-examined Long about the call records.
Because Russell did not object at trial, the standard of review is plain error. R. 2:10-2. Cochran does not raise this issue on appeal.
An appellate court reviews a trial court's evidentiary and discovery rulings for abuse of discretion. State v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010), certif. denied, 205 N.J. 183 (2011).
The purpose of discovery is "to assure the parties every legitimate avenue of inquiry prior to trial to enhance the search for the truth." State v. Burnett, 198 N.J. Super. 53, 58 (App. Div. 1984), certif. denied, 101 N.J. 269 (1985). Gamesmanship is discouraged in criminal trials because the stakes are high. Id. at 59-60.
Where a party discovers additional material during trial, Rule 3:13-3(g) requires prompt notification and a continuing duty to disclose. If a party fails to comply, this rule permits a court to "order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." R. 3:13-3(g). Where circumstances permit, an adjournment or continuance is the preferred remedy. State v. Clark, 347 N.J. Super. 497, 509 (App. Div. 2002).
Russell argues that the State's late introduction of Cochran's direct connect call records deprived him of a "full opportunity to investigate the veracity and reliability of the evidence and cross-examine State witnesses about it." He fails, however, to explain why he needed more time to review these records. Although there was ample opportunity to cross-examine Ehrnman and Long about the calls, his counsel did not ask Ehrnman any questions, and cross-examined Long primarily about calls made between Russell and Powell prior to October 9, 2 008. Russell's counsel, therefore, did not ask either witness about any direct connect calls between Cochran and Reeves. Our review of the record does not indicate that Russell was disadvantaged in any material way. The trial court did not abuse its discretion in dealing with the issue, and our intervention is unnecessary.
J.
Scott argues that the court improperly admitted evidence of his participation in a "prior trial for which [he] faced life imprisonment for a first degree offense." He claims that this evidence was unduly prejudicial, depriving him of a fair trial. He also argues that the court erred by failing to give a limiting instruction immediately after this evidence was presented to the jury. We are not persuaded.
The court granted the State's motion to allow evidence that Russell and Scott were defendants in a previous trial where Granados was an expected witness against them. It ruled that this evidence was admissible under N.J.R.E. 404(b) to show motive, and as res gestae to the witness tampering charge. Citing the four-part test for admissibility of other crime evidence in Cofield, supra, 127 N.J. at 338, the court found by clear and convincing evidence that evidence of the other trial was relevant to demonstrate why Scott and Russell sought the removal or intimidation of the witness, that the other trial occurred close in time to the offenses charged, and that the probative value of the evidence substantially outweighed its prejudicial effect. The court, however, limited the evidence to testimony that "Granados was expected to testify in a trial for a first degree crime that exposed defendants Russell and Scott to a possible term of life in prison."
In its final charge, the court gave the following instruction to the jury on the limited use of the evidence:
The State has introduced evidence that defendants Russell and Scott were charged with and on trial for a crime of the first degree which exposed each of them to a potential sentence of life imprisonment at the time of the crimes charged in this indictment. . . .
Normally, such evidence is not permitted under our Rules of Evidence. Our rules specifically exclude evidence that a defendant has been involved in other events or conduct when it is offered only to show that he has a disposition or tendency to do
wrong and, therefore, must be guilty of the charged offenses. Before you can give any weight to this evidence, you must be satisfied:
One, with respect to defendants Russell and Scott, that they were in fact charged with and on charge [sic] for a crime of the first degree which exposed each of them to a potential sentence of life imprisonment at the time of the crimes charged in this indictment;
Two, . . . [i]f you are not so satisfied, you may not consider the evidence for any purpose. However, our rules do permit evidence of other crimes, wrongs or acts when the evidence is used for certain specific narrow purposes.
The court explained that, to demonstrate a motive for the crimes charged in this indictment, the State had introduced evidence that Russell and Scott were charged and on trial in another case in which Granados was a witness against them. It instructed the jury to decide whether this evidence demonstrated motive or plan, and if it agreed with the State, to use it for that limited purpose. It cautioned:
[Y]ou may not use this evidence to decide that a defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because defendant has been involved in another trial or is a member of a gang, he must be guilty of the present crimes. I have admitted the evidence only to help you decide the specific question of motive or plan. You may not consider it for any other purpose and may not find a defendant guilty now simply because the State has offered
evidence that he has been involved in these other activities.
Although Scott raises the issue of res gestae on appeal, in light of State v. Rose, 206 N.J. 141, 182 (2011) (rejecting the use of res gestae to support evidential rulings), we will focus on the trial court's rulings pursuant to N.J.R.E. 404(b). Ibid.
As we have already noted, courts apply a four-part test to determine whether to admit evidence pursuant to that Rule. Cofield, supra, 127 N.J. at 338. When other-crime evidence is admitted, the court must instruct the jury on its limited use. Marrero, supra, 148 N.J. at 495. The trial court's instruction "'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence . . . .'" Cofield, supra, 127 N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 304 (1989)).
The most sensitive part of the Cofield test is generally the fourth factor, whether the probative value of the evidence is outweighed by its apparent prejudice. State v. Barden, 195 N.J. 375, 389 (2008). A trial court must carefully and pragmatically evaluate other-crime evidence given its damaging nature. Ibid. Greater leeway, however, is given "when the evidence is proffered on the issue of motive, and there must be a 'very strong' showing of prejudice to exclude evidence of a defendant's motive." State v. Castagna, 400 N.J. Super. 164, 180 (App. Div. 2008) (quoting Covell, supra, 157 N.J. at 570).
As part of the balancing test for other-crime evidence, a trial court must consider whether other less prejudicial evidence is available to prove the same point. Barden, supra, 195 N.J. at 389; Castagna, supra, 400 N.J. Super, at 181. If there is no other evidence equally probative, the court should admit the evidence subject to the Cofield test. Castagna, supra, 4 00 N.J. Super, at 181. The evidence, however, must be sanitized where appropriate to reduce the inherent prejudice. Barden, supra, 195 N.J. 390.
Scott contends the State failed to meet the fourth prong of Cofield. He argues that the probative value of the other-trial evidence was outweighed by the prejudice to him, that less prejudicial evidence existed, and that the omission of the words "murder case" did not sanitize the situation. He also argues that the court failed to give a limiting instruction immediately after this evidence was admitted, and that its final charge was "too little, too late." Because he did not object at trial when this evidence was admitted, he can prevail only by showing plain error. R. 2:10-2.
The trial court did not abuse its discretion by finding that the probative value of the evidence substantially outweighed any prejudicial effects on Scott. It noted the State's theory that elimination and/or intimidation of Granados to prevent his testimony at the other trial was the reason for the murder of Vazquez and attempted murders of Granados and Morales. The court also sanitized this evidence to avoid any reference to another murder. See Jenkins, supra, 178 N.J. at 366 (holding State could make jury aware that a witness's testimony against the defendant occurred "in a trial for a first-degree crime that exposed defendant to a possible sentence of life imprisonment," but that jury could not hear an accusation that the defendant previously stood trial for murder).
Scott fails to demonstrate sufficient prejudice to justify exclusion of this evidence. He provides no legal support for his argument that the court should have given a limiting instruction to the jury immediately after the introduction of the other-crime evidence. It is difficult to fault the trial court for failing to give a limiting instruction when defendants did not object during the trial. See State v. Whitaker, 4 02 N.J. Super. 495, 515 (App. Div. 2008) (refusing to fault trial court in failing to provide curative instructions because of the defendant's failure to object to prosecution's comments), aff'd, 200 N.J. 444 (2009). In any event, the court instructed the jury in the final charge about the limited use of this evidence. See State v. Angoy, 329 N.J. Super. 79, 89 (App. Div.) (holding there was no prejudice to the defendant where court waited two weeks before delivering a limiting instruction outlining the purpose for which it had admitted evidence, because the final instruction was accurate, clear and comprehensive), certif. denied, 165 N.J. 138 (2000).
K.
Scott contends that the trial court erred by denying his motion for a new trial because (1) the verdict was against the weight of the evidence and (2) it had improperly denied his motions for change of venue and severance. Because we have already addressed the unavailing arguments regarding venue and severance, we focus now on the against-the-weight-of-the-evidence argument.
On a motion for a new trial, the trial court cannot "set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. In determining whether a miscarriage of justice occurred, we defer to the trial court on matters not transmitted by the record, such as credibility, demeanor, and the feel of the case. State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. Div. 2002).
Scott argues that the State failed to prove beyond a reasonable doubt that he ordered Reeves to shoot anyone. In support, he cites to Reeves's testimony that the order to kill came from Powell and that Scott was not Reeves's Big Homey because Scott was in jail when Reeves became affiliated with the Bloods street gang. He also argues that the recorded conversations did not prove that he was an accomplice to murder and attempted murder, and that the admission of prejudicial and irrelevant evidence resulted in the guilty verdicts.
Contrary to Scott's assertions, there was ample evidence from which the jury could have inferred that he ordered the shooting of Granados. "[I]t is a jury function, not the function of the reviewing court, to evaluate witness credibility and the weight and worth of the evidence." Taccetta, supra, 301 N.J. Super, at 241. Scott fails to provide any factual or legal support for his argument about the recorded conversations, and instead attempts to substitute his evaluation of the evidence for that of the jury. Taccetta, supra, 301 N.J. Super, at 241. There is not a scintilla of evidence to support the claim that Scott suffered a manifest denial of justice under the law.
L.
Scott argues that the trial court committed numerous errors that cumulatively denied him the right to a fair trial. Having found none of Scott's arguments regarding the conduct of the trial to be persuasive, we find no cumulative error. In the absence of error, much less cumulative error, there is nothing "sufficient to raise a reasonable doubt as to whether the error[s] led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336. As the Court has recognized, "the predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." Wakefield, supra, 190 N.J. at 538. That circumstance does not exist on this record.
M.
Reeves argues that the court's instruction on duress "mangled the state's burden of proof" and did not identify the offenses to which the defense applied. These arguments have no merit.
Consistent with the model jury charge, the trial court instructed the jury on the defense of duress. See Model Jury Charge (Criminal), "Duress" (1982). At the conclusion of the final charge, Reeves's counsel asked the court to instruct the jury that the duress defense applied to all charges. The court denied the request.
For the first time on appeal, Reeves objects to the following portion of the model charge:
Before conduct, which would otherwise be criminal, can be excused on the ground that such conduct was the direct result of force or threats of force upon the defendant or another, the evidence must indicate that the following conditions existed at the time:Reeves claims that the highlighted language "confuses the judge's responsibility to decide if there is sufficient evidence to warrant a charge on duress with the state's burden to disprove the defense."
1. There was use of, or threatened use of, unlawful force against the person of the defendant or another; and
2. The force, or threatened force, would be of such a type that a person of reasonable firmness in a similar situation would have been unable to resist.
[Emphasis added.]
An appellate court reviews objections to the jury charge raised for the first time on appeal under the plain error standard. State v. Singleton, 211 N.J. 157, 182 (2012); R. 2:10-2. Plain error in the context of a jury charge is a "'legal 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.'" Singleton, supra, 211 N.J. at 182-83 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). An appellate court must read the charge "as a whole in determining whether there was" plain error. State v. Brown, 190 N.J. 144, 160 (2007).
N.J.S.A. 2C:2-9(a) defines duress as
an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.This affirmative defense is "unavailable if the actor recklessly placed himself in a situation in which it is probable that he would be subjected to duress." N.J.S.A. 2C:2-9(b).
Although a defendant initially must produce some evidence tending to establish the defense, the State must disprove the defense beyond a reasonable doubt. State v. B.H., 183 N.J. 171, 187-88 (2005). While duress does not exculpate a defendant from a charge of murder, but "is only available to reduce the degree of the crime to manslaughter," N.J.S.A. 2C:2-9(b), it is an absolute defense to all other crimes. B.H., supra, 183 N.J. at
Reeves first contends that the court's instruction confused the judge's responsibility to decide if there was sufficient evidence with the State's burden to disprove the defense of duress beyond a reasonable doubt. He specifically objects to "the evidence must indicate" language. We conclude that the court's instructions had no capacity to erode the State's burden of proof, nor were they capable of engendering confusion or unfairness.
The challenged four words merely informed the jury of the requirement that there must be some evidence that the elements of duress existed. B.H., supra, 183 N.J. at 187-88. As a result, the language that Reeves complains improperly shifted the burden of proof is instead a proper statement explaining that in order to raise the defense, a defendant must present facts that could warrant consideration of the defense of duress. We reject defendant's contention that the jury instruction on duress improperly shifted the burden of proof from the State.
As Reeves acknowledges, later in the jury charge the trial court correctly instructed the jury that the State shouldered the burden of proof. As such, the overall instruction on the duress defense was neither contradictory nor inconsistent.
We also reject Reeves's second argument. The trial court instructed the jury that "[i]n defense of the charges against him, defendant Lee C. Reeves contends he is not guilty because at the time of the offenses, he acted under duress." It explained: "In other words, he was coerced to commit offenses due to the use of, or a threat to use, unlawful force against him or another person." It also stated:
The State has the burden to prove beyond a reasonable doubt each element of the charged offenses. The State also has the burden to disprove, beyond a reasonable doubt, the defense of duress.Thus, viewing the jury charge as a whole, the court's multiple references to offenses and charges led the jury to understand that the defense applied to all counts of the indictment, not just murder. Furthermore, Reeves's reliance on State v. Coyle 119 N.J. 194, 221-22 (1990), to argue that the court erred by beginning the duress charge with "the evidence must indicate" language, instead of explaining the State's burden to disprove the defense is wholly without merit. R. 2:11-3(e)(2). The relationship between murder and passion/provocation manslaughter, which was addressed in Coyle, is clearly distinguishable from the relationship between the affirmative defense of duress and the charges against Reeves.
If you find that the State has proven beyond a reasonable doubt each element of the offense you are considering, and that the State has disproved beyond a reasonable doubt the defense of duress, you must find the defendant, Lee C. Reeve, guilty of the offense.
If you find the State has not proved beyond a reasonable doubt each element of the offense you are considering, or that the State has not disproved beyond a reasonable doubt the defense of duress, you must find the defendant, Lee C. Reeves, not guilty of that offense.
N.
Reeves contends on appeal that the court erred by refusing to bar references at trial to his gang-given street name, which was — according to the indictment — Kaoz. We disagree.
The court denied defendants' motion to preclude the use of their street names during the trial. It found that Bevacqui was going to testify about gang activities and motives, and that the State intended to introduce various tape recordings referring to defendants' street names. While recognizing that prejudice might arise from the use of such names with sinister connotations, the court nevertheless concluded that it would unfairly confound the State's presentation of evidence if it excluded the street names' use.
Reeves contends the court erred by allowing the use of his nickname because he had admitted his guilt and, therefore, his "sinister" street name was irrelevant and prejudicial. He cites State v. Paduani, 307 N.J. Super. 134, 147 (App. Div.), certif. denied, 153 N.J. 216 (1998), to argue that pejorative nicknames should be withheld from the jury unless they are relevant for some purpose. In that case, the defendant objected to the use during trial of his street name "Marijuana." Id. at 146. The court, however, found that the testimony was relevant, because the police identified the defendant by his nickname and defense counsel used the nickname during trial. Ibid. The court also noted that the defendant had failed to point to any tangible form of prejudice attributable to the use of his nickname, and that its independent review of the record revealed none. Id. at 146-47.
Here, many of the witnesses, including Guzman, Clark, Wallace, and Foskey, knew and referred to Reeves by his street name. The recorded telephone conversations also referred to Reeves and his co-defendants by their street names. Likewise, when Reeves testified, he used street names when referring to Scott and Powell. Reeves's street name, therefore, was relevant evidence linking him to the crimes charged. Moreover, the use of Reeves's street name was not unduly prejudicial. Reeves admitted that he was a member of the Bloods and that he killed Vazquez.
The court also gave a limiting instruction to the jury regarding the proper use of such evidence to avoid any unnecessary prejudice to Reeves and his co-defendants. In its final charge, the court instructed the jurors that the State had introduced evidence that all defendants were members of the Bloods street gang at the time of the crimes charged, and reminded them that membership alone was not itself a crime. It also stated: "Throughout this trial, you have heard references to nicknames allegedly used by defendants and some of the witnesses. These nicknames do not constitute evidence of guilt or a propensity to engage in criminal conduct." The trial court's decision to allow the use of Reeves's street name during the trial was proper.
O.
Cochran argues that the court improperly denied his motion for judgment of acquittal at the end of the State's case because the phone records and Powell's testimony failed to establish his guilt beyond a reasonable doubt. We disagree.
At the close of the State's case, or after all evidence has been presented, the court must, on a defendant's motion or its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The test is whether viewing the evidence in its entirety and giving the State the benefit of all favorable testimony and inferences, a jury could find guilt beyond a reasonable doubt. State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)). If the evidence satisfies this standard, the court must deny the motion. State v. Spivey, 179 N.J. 229, 236 (2004).
Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). "We give no consideration to evidence or inferences from defendant's case." Ibid, (citing Reyes, supra, 50 N.J. at 459). We are firmly convinced that the trial judge rightly denied Cochran's motion for a judgment of acquittal because there was ample evidence from which the jury could have concluded that he committed the charged crimes.
P.
Cochran contends the court improperly instructed the jury on his election not to testify and on his guilt or innocence. These contentions are unpersuasive.
Because he did not object to the instructions when they were given, we apply the plain-error standard. R. 2:10-2. Thus, Cochran is not entitled to relief unless the "'[l]egal impropriety in the charge affect[ed his] substantial rights' and had the 'clear capacity to bring about an unjust result.'" State v. Miller, 411 N.J. Super. 521, 532-33 (App. Div. 2010) (alteration in original) (quoting State v. Burns, 192 N.J. 312, 341 (2007)), aff'd, 205 N.J. 109 (2011). When an alleged error concerns only a portion of a charge, "the challenged portion is not to be 'dealt with in isolation but the charge should be examined as a whole to determine its overall effect.'" State v. Docaj, 407 N.J. Super. 352, 363 (App. Div.) (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)), certif. denied, 200 N.J. 370 (2009).
Cochran contends the court's jury instruction on his election not to testify prejudiced his right to a fair trial. He argues that the word "even" in the last sentence of the model jury charge impermissibly suggested that he should have testified. Cochran further argues that this sentence of the model jury charge was revised prior to his trial and that the court's failure to use the revised version constituted plain error.
Cochran elected not to testify and understood that the court would instruct the jury that it could not consider for any purpose or in any manner in arriving at its verdict the fact that he did not testify. In the final charge, the court instructed the jury as follows:
As you know, Trishawn Cochran, James Russell and Jamell Scott elected not to testify at trial. It is the constitutional right of every defendant to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact
that any defendant did not testify. That fact should not enter in your deliberations or discussions in any manner at any time. Each defendant is entitled to have the jury consider all evidence presented at trial. Each defendant is presumed innocent even if he chooses not to testify.
[Emphasis added.]
This instruction conformed to the prior model jury charge. Model Jury Charge (Criminal), "Defendant's Election Not To Testify" (2004). Five months before defendants' trial, however, the last sentence of the relevant model jury charge was revised to remove the word "even" and to explain that a defendant "is presumed innocent whether or not he/she chooses to testify." Model Jury Charge (Criminal), "Defendant's Election Not To Testify" (May 4, 2009). This revision, however, does not make the former charge unclear or capable of bringing about an unjust result. Miller, supra, 411 N.J. Super, at 533. When read as a whole, the former charge clearly directed the jurors that they could not allow the fact that Cochran did not testify to enter into their decision-making at any time. Ibid. Because the use of the prior version did not violate Cochran's right to remain silent, or affect the fairness of the verdict, the isolated error was harmless. See Docaj, supra, 407 N.J. Super, at 363-65 (holding that inclusion of word "inadequate," rather than "adequate," in jury instructions on passion/provocation manslaughter was isolated error, and that its capacity to dispel the overall effect was minimal).
Cochran also contends the court improperly instructed the jury to consider his guilt or innocence. He objects to the following instruction:
Now, one of the most important reasons for the existence of the jury system is to bring to bear on the question of the defendant's innocence or guilt is [sic] the collective common sense of you, the jury. All of you are diverse personalities, of various ages and of varied educational and economic backgrounds. Individually and
collectively, you have what we call your good common sense. You're not to leave the common sense acquired at this stage in your lives in this courtroom. Take your common sense into the jury room and use it in your deliberations.
[Emphasis added.]
Cochran relies on State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003), to argue that the court's introduction of the concept of innocence in the jury charge reduced the State's burden of proof and constituted plain error by directly impacting the jury's essential function. In that case, however, the court used the phrase "guilt or innocence" repeatedly throughout a reasonable doubt charge. Ibid. We did not consider the use of the phrase as an error, which in isolation would require a new trial. Ibid. Nevertheless, because a verdict of not guilty was not synonymous with innocence, it recommended that courts avoid the use of this phrase in the future. Ibid.
Unlike in White, the trial court did not use this phrase in its instruction on reasonable doubt. Instead, it referred to defendants' "innocence or guilt" in the context of describing the jury system. Also unlike the facts in White, the court used the word "innocence" once during its lengthy jury charge. While a court should never instruct a jury to decide whether a defendant is guilty or innocent, a single isolated misstatement does not rise to the level of plain error. See State v. Vasquez, 374 N.J. Super. 252, 265 (App. Div. 2005) (holding there was no likelihood judge's misstatement that the defendant was "entitled to have his guilt or innocence separately considered on each count" affected the verdict).
Q.
All defendants argue that their sentences were excessive and that we should remand for re-sentencing. We will not do so because the record amply supports the imposition of the sentences and we have neither sound reasons to intervene nor any lawful grounds to adjust them in any way.
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 has 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, 364 (1984).
Scott was sentenced to an aggregate term of life imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:4 3-7.2. The sentence was ordered to be served consecutive to the life term that Scott received in the Olivares case. In light of the "no free crimes" doctrine, and because the killings and their objectives were independent of each other and involved separate actions, committed at different times and places and involving different victims, the consecutive structure of the sentences is unremarkable and entirely fitting. See State v. Yarbough, 100 N.J. 627, 643-44 (1985) , cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
Also, the appropriate aggravating and mitigating factors were identified and applied by the sentencing judge. The judge properly took four aggravating factors into consideration: factor three, N.J.S.A. 2C:44-1(a)(3) (the risk defendant will commit another offense); factor five, N.J.S.A. 2C:44-1(a)(5) (defendant is involved in organized criminal activity); factor six, N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior criminal record); and factor nine, N.J.S.A. 2C:44-1(a)(9), (the need for deterrence). Mitigating factor six, N.J.S.A. 2C:44-1(b)(6) (defendant will compensate the victim of his conduct) was found applicable, but was "substantially outweigh[ed]" by the aggravating factors. The sentence imposed does not shock our judicial conscience and we discern no abuse of discretion.
Russell — who had previously been convicted of first-degree robbery, N.J.S.A. 2C:15-1, in 2004, and Olivares's first-degree murder, N.J.S.A. 2C:11-3, in 2006 — was sentenced pursuant to N.J.S.A. 2C:43-7.1(a). Accordingly, the judge imposed an aggregate term of life imprisonment without parole, subject to the NERA, consecutive to the life sentence imposed for the Olivares murder. The judge identified and applied the same aggravating and mitigating factors for Russell as he did for Scott.
As with Scott, we detect nothing conscience-shocking about the sentence and are unable to agree with Russell that the sentencing judge abused his discretion. We expressly reject Russell's argument that the sentencing judge improperly double counted aggravating factor five, N.J.S.A. 2C:44-1(a)(5) (defendant is involved in organized criminal activity). Because involvement in the Bloods street gang was neither criminalized in this case nor was it a substantive element of any of the crimes charged in the indictment, it was available for consideration as part of the sentencing calculus. See State v. Kromphold, 162 N.J. 345, 353 (2000).
Reeves received the same aggregate sentence as Scott, life imprisonment subject to the NERA, but without being consecutive to another sentence. The judge identified and applied the same aggravating and mitigating factors as in Scott's case, and rejected the application of mitigating factors four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds to excuse or justify defendant's conduct), and thirteen, N.J.S.A. 2C:44-1(b)(13) (conduct of a youthful defendant was substantially influenced by a more mature person).
A sentencing judge is not required to explicitly reject each mitigating factor argued by a defendant. Bieniek, supra, 200 N.J. at 609. "It is sufficient that the trial court provides reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision." Ibid.
In finding only mitigating factor six, the judge considered the other mitigating factors. He recited that Reeves was approximately twenty-one years old and unemployed, with a history of substance abuse. He also noted that Reeves had the opportunity to live a law-abiding life, and "to go to school, counseling, private school and different programs." Instead, Reeves resorted to violence to obtain an enhanced status with his street gang, and bragged about the Vazquez shooting. The judge mentioned that there was "no credible evidence that anyone threatened Mr. Reeves with death if he did not fulfill any request to murder the witness." Based on the record, the judge properly determined that Reeves's conduct was neither excusable nor justified.
Regarding mitigating factor thirteen, the record supports the finding that Reeves was not substantially influenced by another person. The judge placed particular emphasis on the violent nature of the crime, and on Reeves's failure to come forward to the police after he shot Vazquez. See State v. Torres, 313 N.J. Super. 129, 162-64 (App. Div.), certif. denied, 156 N.J. 425 (1998) (holding court did not abuse its discretion by refusing to find that mitigating factor thirteen applied to a sixteen-year-old defendant, because the crime was well-planned and cold-blooded and not the result of a childish, immature or impulsive act). Reeves's sentence is fully sustainable.
Cochran, who was only convicted of first-degree witness tampering and second-degree conspiracy to commit witness tampering, received an after-merger sentence of seventeen years. The same aggravating and mitigating factors applicable to Scott, Russell, and Reeves were applied by the sentencing judge to Cochran.
Cochran claims that the judge erred by failing to acknowledge "that had the offense been committed only five weeks earlier, the maximum custodial sentence that could have been imposed was ten years." This argument refers to the fact that on September 10, 2008, N.J.S.A. 2C:28-5 was amended to make witness tampering a crime of the first degree if the conduct occurred in connection with a proceeding involving any crime enumerated in N.J.S.A. 2C:43-7.2(d), such as murder. In the case of crimes of the first degree, a sentence may be imposed of between ten and twenty years. N.J.S.A. 2C:43-6(a)(1). Because Cochran committed witness tampering in connection with the Olivares murder proceeding, the seventeen-year sentence is unexceptionable. The fact that the amendment to the statute became effective only weeks before his conduct is irrelevant.
Lastly, Cochran contends that the court imposed an excessive sentence "to appease the prosecutor's chagrin with the overly lenient sentence he offered Powell." This argument refers to the following remarks by the prosecutor at sentencing:
In the grand scheme of this conspiracy, Mr. Cochran was probably a little more involved than Joe Powell. Now, neither of them pulled the trigger, but they both facilitated this thing and on his best day for his cooperation — and you know he testified, Mr. Powell did — on his best day, he is going to have to do 8 and a half years without parole and he's going to do it as an informant. He put himself in harms way and there is no reason in the world why Joe Powell should have to do one single day more than Trishawn Cochran.
In support, Cochran relies on State v. Tindall, 417 N.J. Super. 530, 568-72 (App. Div. 2011), to argue that his sentencing proceeding was "irrevocably tainted" by the prosecutor's bias. In that case, the trial judge at sentencing expressed unfounded speculations and aspersions about the jury verdict. Id. at 568-72. The judge then imposed the maximum sentence and period of parole ineligibility for each of the five crimes for which the defendant was convicted, and ordered the sentences to run consecutively to each other. Id. at 570-72. We held that the sentences were irreparably tainted by the trial judge's perception that the jury rendered an unjust verdict in the defendant's favor. Id. at 568-72. In contrast, there is no indication that the sentencing judge was upset by the jury verdict. Moreover, he rejected the prosecutor's request to impose the maximum sentence of twenty years with a ten-year period of parole ineligibility. Instead, the court imposed a flat seventeen-year term, which falls within the statutory range for a first-degree crime.
R.
In summary, notwithstanding the welter of issues presented by defendants in this appeal, we are steadfast in the view that the multiple convictions and sentences are supported by the record and do not warrant our intervention.
Except to the extent already addressed, the remaining points raised in all defendants' briefs lack sufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(2).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION