STATE OF NEW JERSEY VS. CARL J. HOLDREN STATE OF NEW JERSEY VS. VALDO THOMPSON (07-09-0125, MONMOUTH COUNTY AND STATEWIDE)(CONSOLIDATED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5071-13T1
A-1056-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARL J. HOLDREN,
Defendant-Appellant.
____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VALDO THOMPSON,
Defendant-Appellant.
_________________________________
Submitted April 4, 2017 – Decided September 1, 2017
Before Judges Messano, Espinosa and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
07-09-0125.
Joseph E. Krakora, Public Defender, attorney
for appellant Carl Holdren (Michele A.
Adubato, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant Valdo Thompson (Suzannah Brown,
Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondents (Daniel I. Bornstein,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendants appeal from their convictions and sentences for
murder, attempted murder and other offenses arising from gang-
related shootings. The charges were the culmination of an
investigation by the New Jersey State Police (NJSP) into gang
activity named Operation Dawg Pound. The evidence of defendants'
guilt, which included telephone conversations intercepted pursuant
to court order that dovetailed with surveillance and the seizure
of evidence, was compelling. We have consolidated their appeals
and now affirm.
I.
In November and December 2006, Detective Sergeant Jeffrey
Burke of the NJSP was the lead detective in Operation Dawg Pound.
NJSP's Street Gang Unit North had been conducting electronic
surveillance for several months of Anthony Carter a/k/a Born, the
OG, or "Original Gangster," of the Sex Money Murder (SMM) set of
2 A-5071-13T1
the United Bloods Nation (Bloods) in New Jersey. Burke, who was
qualified as an expert in gang terminology, gang culture and gang
dynamics, explained that a set is "a subgroup that falls underneath
the Bloods" street gang. The two other top sets under the Bloods
umbrella were: G-Shine and the Brims. In the end of 2006, SMM
"was at war or beefing with G-Shine and Brims."
Burke explained the hierarchy of the Bloods street gang. The
highest ranking member of a Bloods set is an "OG." Below that,
there are generals ranking from five star to one star, captain,
lieutenant, sergeant and the lowest rank, "foot soldiers."
During the course of the investigation, a person known as
"SB" showed up on a number of Carter's calls. Following his review
of those calls, Burke surmised that SB, or "Soldier Boy," had a
leadership role with SMM in Monmouth and Ocean Counties. SB was
identified as defendant Valdo Thompson. An order was obtained
that authorized electronic surveillance of Thompson's phone on
November 22, 2006. Burke was able to determine that Thompson was
a four star general, and defendant Carl Holdren, also known as
"Killa," was a lieutenant or LT.
At approximately midnight on November 22, 2006, Long Branch
Police Department (LBPD) dispatched officers to investigate 911
reports that two men had been shot inside a residence on
Hendrickson Avenue. Two victims, Michael Montgomery, a member of
3 A-5071-13T1
the Brims, and Keith Logan, a member of G-Shine, were found at the
scene. Logan survived the shooting; Montgomery did not.
The NJSP identified defendants as suspects in the
Montgomery/Logan shooting from calls intercepted before and after
the shooting. Two days before the shooting, Quemere McClendon,
an SMM member known as "Tragedy" or "Trag," called Carter to tell
him that G-Shine members "tried to sleepwalk" him, which, Burke
explained, meant they were trying to kill or seriously hurt him.
McClendon asked for Carter's permission to retaliate and Carter
gave him the go ahead. On November 22, 2006, the day of the
shooting, Thompson called Carter to report the wrong person was
killed and the Brims knew that SMM was responsible.
On December 28, 2006, Michael Stallworth, a Brims member
known as "Lock," kidnapped and assaulted an SMM member named
"Slash" in retaliation for Montgomery's murder. Stallworth called
Thompson, admitted he kidnapped Slash and threatened additional
violence.
As documented in the intercepted calls, Thompson directed
that Stallworth be shot, and Holdren agreed to shoot him. Thompson
laid out a plan for the killing. He ordered Zachery Butts, another
SMM member, to obtain a rental car and deliver a gun to Holdren
for the purpose of killing Stallworth. Butts obtained a rental
car, a 2006 silver Mitsubishi Galant, and the gun. The plan was
4 A-5071-13T1
foiled when the rental car was stopped for speeding by Lakewood
Police and, acting on information received from the NJSP, officers
searched the car and recovered the gun.
Holdren and Thompson (collectively, defendants) were charged
along with four other defendants1 in a twenty-four count
indictment. Both were charged with first-degree racketeering,
N.J.S.A. 2C:41-2(c)-(d) (count one); first-degree conspiracy to
murder Logan, N.J.S.A. 2C:5-2 (count two); three counts of second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) and N.J.S.A. 2C:2-6 (counts three, five and twenty);
first-degree attempted murder of Logan, N.J.S.A. 2C:11-3(a),
N.J.S.A. 2C:5-1, and N.J.S.A. 2C:2-6 (count four); first-degree
purposeful or knowing murder of Montgomery, N.J.S.A. 2C:11-
3(a)(1)-(2) and N.J.S.A. 2C:2-6 (count six); first-degree
conspiracy to murder Stallworth, N.J.S.A. 2C:5-2 (count nineteen);
and first-degree attempted murder of Stallworth, N.J.S.A. 2C:11-
3(a), N.J.S.A. 2C:5-1, and N.J.S.A. 2C:2-6 (count twenty-one).
Neither Thompson nor Holdren were charged in counts ten through
seventeen.
In addition, Holdren was charged with second-degree
conspiracy to commit armed robbery of J.H., N.J.S.A. 2C:5-2 (count
1
The other four defendants are: Butts, McClendon, Paul Lewis,
and Darnell Stovall, all of whom were members of SMM.
5 A-5071-13T1
seven), an additional count of second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight) and
first-degree armed robbery of J.H., N.J.S.A. 2C:15-1(a)(2) and
N.J.S.A. 2C:2-6 (count nine). Holdren was convicted by a jury on
counts one through six, nineteen, twenty and twenty-one). He was
found not guilty on counts seven, eight, and nine.
Thompson was also charged with third-degree possession with
intent to distribute cocaine to a juvenile, N.J.S.A. 2C:35-
5(a)(1), (b)(3), N.J.S.A. 2C:35-8, and N.J.S.A. 2C:2-6 (count
eighteen); third-degree possession of a controlled substance with
intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) and N.J.S.A.
2C:2-6 (count twenty-two); and third-degree possession of a sawed-
off shotgun, N.J.S.A. 2C:39-3(b) (count twenty-three). He entered
a guilty plea pursuant to a plea agreement to counts one, two,
four, six, nineteen and twenty-one.
In his appeal, Holdren presents the following arguments for
our consideration:
POINT I
DENIAL OF THE DEFENDANT'S
APPLICATION FOR SEVERANCE OF COUNTS
19 AND 21 FROM THE OTHER COUNTS IN
THE INDICTMENT WAS ERROR.
POINT II
THE WARRANTLESS SEARCH OF THE
MITSUBISHI GALANT VIOLATED THE
6 A-5071-13T1
DEFENDANT'S RIGHT TO BE FREE FROM
UNLAWFUL SEARCH AND SEIZURE
GUARANTEED BY THE NEW JERSEY AND
FEDERAL CONSTITUTION.
POINT III
THE COURT ERRED IN DENYING
DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT.
POINT IV
DETECTIVE VIRGILIS [SIC] GANG
TESTIMONY SHOULD HAVE BEEN EXCLUDED
FROM EVIDENCE BECAUSE IT WAS AN
IMPROPER "NET OPINION" AND OPINED
ABOUT THE ULTIMATE ISSUE TO BE
DECIDED BY THE JURY.
POINT V
THE STATE FAILED TO PROVE THAT
DEFENDANT'S ACTIONS AFFECTED TRADE
AND COMMERCE TO SUPPORT THE
RACKETEERING CONVICTION.
POINT VI
ADMISSION OF IRRELEVANT AND
IMMATERIAL EVIDENCE REGARDING
POSSESSION OF A WEAPON BY SOPHIA
JOHNSON DEPRIVED DEFENDANT OF A FAIR
TRIAL. (NOT RAISED BELOW).
POINT VII
DENIAL OF THE DEFENDANT'S MOTION FOR
NEW TRIAL WAS ERROR.
POINT VIII
THE AGGREGATE SENTENCE IMPOSED UPON
MR. HOLDREN OF LIFE PLUS 40 YEARS
WITH 92 1/2 YEARS OF PAROLE
7 A-5071-13T1
INELIGIBILE [SIC] WAS MANIFESTLY
EXCESSIVE AND MUST BE MODIFIED AND
REDUCED. (NOT RAISED BELOW).
POINT IX
THE AGGREGATE ERRORS DENIED
DEFENDANT A FAIR TRIAL. (NOT RAISED
BELOW).
Thompson argues his conviction and sentence should be set
aside based on the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
MOTION TO SUPPRESS EVIDENCE
RECOVERED FROM THE RENTAL CAR.
POINT II
THE TRIAL COURT ERRED IN DENYING THE
MOTION TO SUPPRESS EVIDENCE
RECOVERED FROM CARL HOLDREN'S
BEDROOM.
POINT III
THE MATTER SHOULD BE REMANDED FOR
RESENTENCING BECAUSE THE TRIAL
COURT FAILED TO STATE REASONS FOR
IMPOSING A CONSECUTIVE SENTENCE ON
COUNT ONE.
After reviewing these arguments in light of the record and
applicable principles of law, we conclude that none of them have
merit. We further conclude that the arguments raised in Points
I, III, V, VI, VII and IX of Holdren's appeal merit limited or no
discussion. R. 2:11-3(e)(2).
8 A-5071-13T1
II.
We first address Holdren's challenges to the trial court's
denial of his pretrial motions for severance and the dismissal of
the indictment. These arguments lack merit and warrant only
limited discussion.
A.
Holdren filed a motion to sever counts nineteen through
twenty-one, which charged him with conspiracy to murder
Stallworth, attempted murder of Stallworth and possession of a
handgun for an unlawful purpose to use against Stallworth. The
State opposed the motion, arguing that each of these offenses were
alleged as predicate acts for the racketeering offense charged in
count one.
As the trial court noted, all the charges were properly joined
under Rule 3:7-6. The trial court reviewed the potential for
prejudice that would justify severance, see R. 3:15-2(b), noted
Holdren failed to identify any undue prejudice beyond the mere
"danger of association," and determined the State's interest and
judicial efficiency outweighed any prejudice Holdren would suffer.
We agree.
B.
In Point III, Holdren argues the trial court erred in denying
his motion to dismiss the indictment based upon the State's alleged
9 A-5071-13T1
failure to present exculpatory evidence to the grand jury.
During a grand jury proceeding, the prosecutor must present
any evidence that "both directly negates the guilt of the accused
and is clearly exculpatory." State v. Saavedra, 222 N.J. 39, 63
(2015) (quoting State v. Hogan, 144 N.J. 216, 237 (1996)). To be
clearly exculpatory, "the evidence must 'squarely refute[] an
element of the crime.'" Ibid. (alteration in original) (quoting
Hogan, supra, 144 N.J. at 237). A prosecutor's failure to do so
warrants dismissal of the indictment but courts are directed to
"act with substantial caution before concluding that a
prosecutor's decision in that regard was erroneous"; such relief
is appropriately granted in an "exceptional case." Ibid. (quoting
Hogan, supra, 144 N.J. at 238-39). We review the trial court's
decision for abuse of discretion. Id. at 55.
The State presented testimony from Detective Michael
Verdadeiro about conversations he had with two women, B.R. and
N.D. The women told Verdadeiro they knew Holdren well, saw him
at the scene of the shooting, standing beside a masked man and
that, after Montgomery and Logan pulled up to the house, "[Holdren]
and the second man began shooting at them and everybody fled the
scene." The alleged exculpatory information was that, in their
formal statements, B.R. and N.D. stated they did not observe
Holdren with a gun. B.R. stated she saw the masked man shooting
10 A-5071-13T1
a gun; N.D. stated she did not see either man with a gun but heard
the gunshots.
The trial court denied defendant's motion, finding the
statements did not meet the standard for exculpatory information
that required its presentation to the grand jury. The trial court
noted that, although the witnesses were unable to state they saw
a gun in Holdren's hands, they did not state affirmatively that
Holdren did not have a gun. We note further that Holdren was
charged both as a principal and an accomplice in the murder, and
that, even when the formal statements are considered, they do not
"directly negate[]" his guilt. Id. at 63 (quoting Hogan, supra,144 N.J. at 237). The motion to dismiss the indictment was,
therefore, properly denied.
III.
Both defendants argue the trial court erred in denying their
motions to suppress the gun seized from the 2006 Mitsubishi Galant
rental car.
A.
The parties stipulated to a statement of facts for the
suppression hearing, which we summarize. The stipulation
acknowledged the ongoing investigation, Burke's training and
experience regarding street gangs and his understanding of calls
11 A-5071-13T1
intercepted on December 28, 2006. Burke advised the officer
conducting surveillance of SMM of the following:
One of Thompson's SMM members had been attacked by members
of the Brims in retaliation for the Montgomery's death. Montgomery
was shot and killed when Thompson, along with Holdren and
McClendon, allegedly attempted to murder another gang member,
Logan. Unlike Montgomery, Logan was only injured and survived the
shooting. Thompson ordered Holdren to shoot Stallworth and
arranged for Butts to give Holdren a gun.
As a result of this information, surveillance was initiated
by Detective Kevin Plumaker, Detective Lieutenant Michael Sovey,
Detective Michael Smith, and State Trooper David Tabon, and others
of the residence of C.P., Butts's girlfriend, in Freehold.
At approximately 4:15 p.m. on December 28, 2006, Tabon
followed Butts and C.P. to a car rental agency where Butts obtained
a 2006 silver Mitsubishi Galant. Tabon then followed Butts back
to C.P.'s residence, arriving at approximately 5:15 p.m.
In a conversation between Butts and Thompson intercepted at
approximately the same time, Butts told Thompson he had obtained
a rental car and that he suspected law enforcement officers were
following him. A few minutes later, Sovey observed Butts enter
the rental car and leave C.P.'s residence, wearing a "Lakers"
12 A-5071-13T1
jacket. Sovey followed Butts to A.W.'s residence, where A.W.
joined Butts in the rental car. Sovey and Plumaker followed them.
At approximately 5:50 p.m., Sovey pulled into a retail parking
lot and parked because he perceived Butts and A.W. might again
suspect they were being followed. However, A.W. drove into the
same parking lot. There were also three other cars present: C.P.'s
vehicle, a black Dodge Charger with a New York license plate, and
a green Ford Expedition bearing a New Jersey license plate. A
number of people stood around outside the vehicles.
Sovey noted the trunks of the rental car and the black Dodge
Charger were open. Two unknown men stood in front of the trunks
as if they were standing guard or trying to block the view of the
trunks. A third unknown person handed a white plastic bag to
Butts, who was wearing the same Lakers jacket observed earlier.
Butts placed the white plastic bag in the trunk of the rental car.
Sovey transmitted his observations to the other officers. The men
then closed both trunks and everyone left in their respective
vehicles.
Plumaker followed Butts back to C.P.'s residence, arriving
at approximately 6:50 p.m. In a conversation intercepted during
the drive, Butts told Thompson he was being followed by law
enforcement officers. Butts left C.P.'s residence at
approximately 7:15 p.m., minutes before Thompson arrived, and
13 A-5071-13T1
returned at approximately 7:25 p.m. Other known SMM members were
observed leaving and returning to the residence.
At approximately 10:10 p.m., Plumaker observed Butts placing
a white item in the trunk of the rental car. He did not observe
whether the item was brought from elsewhere or simply removed from
the trunk and then replaced inside it. Approximately ten minutes
later, Butts entered the rental car with A.W. and two others and
A.W. drove away.
Sovey followed the rental car along local roads but lost
track of it when it turned sharply into a retail parking lot on
Route 9 in Howell. Sovey informed the Ocean County Prosecutor's
Office that he had lost track of the rental car. NJSP issued a
"be on the look out" (BOLO) bulletin for the make, model and
registration number of the rental car.
Sometime thereafter, Sergeant Maureen McGilloway of the
Lakewood Police Department received the BOLO information from a
state trooper, who told her "troopers conducting surveillance had
lost sight of the suspect vehicle and had requested assistance."
The trooper also said there was a safety concern because there was
a gun in the rental car. Sergeant McGilloway reported this
information to the Lakewood Police Department.
14 A-5071-13T1
Officer David Silberstein of the Lakewood Police
Department observed the rental car speeding and initiated a stop.
Another Lakewood police officer, Christopher Matlosz, joined him.
Silberstein confirmed the rental car's registration number
was for a vehicle sought by the NJSP. Silberstein told Matlosz
to stay back, as the BOLO bulletin stated "the suspects had a
weapon and were considered dangerous."2 The officers were advised
to hold the occupants and wait for members of the Prosecutor's
Office, NJSP and U.S. Marshals. Dispatch called for additional
Lakewood Police officers to respond to the scene.
Silberstein ordered A.W. "to turn the car off and drop the
keys from the window" and he complied. Using the loudspeaker,
Silberstein then ordered the occupants of the rental car "to keep
their hands in view outside of the windows of the vehicle."
Significant time passed and multiple Lakewood Police Officers
arrived at the scene.
Because he knew there was a weapon in the rental car,
Silberstein began to remove the occupants from the vehicle. Each
2
Although Silberstein correctly identified the registration
number as that in the BOLO bulletin, he mistakenly believed he had
stopped a vehicle that was the subject of a different BOLO bulletin
related to the shooting of a gang member that had occurred earlier
that day.
15 A-5071-13T1
occupant was removed individually, checked for weapons, handcuffed
and placed in a patrol vehicle.
Several officers then searched the rental car for the weapon.
Flashlights were used to look into the passenger compartment of
the vehicle. A bag found in the passenger compartment was
searched; it did not contain a weapon. An access door to the
trunk was set in the middle seat armrest of the rear passenger
seat. An officer pushed a button that opened the trunk.
Smith used a flashlight to look into the open trunk of the
rental car and observed a false floor panel covering the spare
tire was partially open. Without moving the floor panel or
anything else inside the trunk, Smith "observed the handle of a
firearm exposed from within a white plastic bag that was underneath
that opening in the floor panel." He seized the weapon, "a black
.45 caliber H-1 [sic] Point firearm, Serial Number 338969," which
"was loaded with six hollow-point rounds; one in the chamber and
five in the magazine." The officers turned the weapon over to the
Lakewood Police Department and called dispatch to impound the
rental car.
In a conversation intercepted between Thompson and Holdren
soon after the rental car was stopped, they stated they suspected
Butts had been detained by the police, because he never arrived
to deliver the weapon to Holdren.
16 A-5071-13T1
B.
The constitutional standard applicable at the time of the
warrantless search of the rental car3 was set forth in State v.
Pena-Flores, 198 N.J. 6 (2009). For a warrantless search of an
automobile to fall within the automobile exception to the warrant
requirement, the State was required to prove: "(1) the stop is
unexpected; (2) the police have probable cause to believe that the
vehicle contains contraband or evidence of a crime; and (3) exigent
circumstances exist under which it is impracticable to obtain a
warrant." Id. at 28.
Defendants do not challenge the first two of these criteria.
They argue the circumstances did not present any exigency to
justify a warrantless search. Thompson argues "exigency only
3
In State v. Witt, 223 N.J. 409 (2015), the Supreme Court
abandoned the "pure exigent-circumstances requirement" it had
added to the constitutional standard to justify an automobile
search and returned to the standard set forth in State v. Alston,
88 N.J. 211 (1981), "that a warrantless search of an automobile
was constitutionally permissible, provided that the police had
probable cause to search the vehicle and that the police action
was prompted by the 'unforeseeability and spontaneity of the
circumstances giving rise to probable cause,'" Witt, supra, 223
N.J. at 414 (quoting Alston, supra, 88 N.J. at 233. The Court
observed "[t]he Alston standard was seemingly consistent with the
federal exception to the warrant requirement." Ibid. The Court
made clear this standard was to be given prospective application.
Id. at 449. Therefore, as the State concedes, it was required to
prove the existence of exigent circumstances to justify a
warrantless search of the rental car under the automobile
exception.
17 A-5071-13T1
exists where the concern is the destruction or loss of evidence."
Holdren argues there was no exigency here because the occupants
of the vehicle were removed and secured before the warrantless
search was conducted. Neither argument has merit.
"[E]xigency in the constitutional context amounts to
'circumstances that make it impracticable to obtain a warrant when
the police have probable cause to search the car.'" State v.
Cooke, 163 N.J. 657, 676 (2000) (quoting State v. Colvin, 123 N.J.
428, 437 (1991)). We determine the existence of exigency "on a
case-by-case basis" under "the totality of the circumstances,"
Pena-Flores, supra, 198 N.J. at 28, employing "a fact-sensitive,
objective analysis," State v. Walker, 213 N.J. 281, 292 (2013)
(quoting State v. DeLuca, 168 N.J. 626, 632 (2001)).
Most commonly, exigency within the context of an automobile
search is presented because police officers believe contraband is
located within the car and the danger exists that the suspect or
an associate can destroy or conceal the contraband if police do
not intervene. See, e.g., Cooke, supra, 163 N.J. at 673 ("There
is an urgent, immediate need to search a vehicle when there is a
realistic possibility that someone may remove the vehicle or its
contents."). Under such circumstances, the exigency may be
diminished by factors that reduce that probability, such as the
arrival of other police officers to secure the scene. See, e.g.,
18 A-5071-13T1
State v. Dunlap, 185 N.J. 543, 551 (2006) (noting that "the
presence of ten officers" at the scene of an automobile search
particularly justified the "conclusion that exigency was absent").
This case presented a different type of exigency that was
more threatening. Based on the intercepted calls, the officers
had probable cause to believe Thompson had ordered the killing of
Stallworth and articulated a plan for carrying it out that called
for Butts to acquire the gun and use a rental car to deliver the
gun to Holdren. Surveillance established the plan was in progress
when the rental car was stopped by police. The exigency arose out
of the need to locate that gun and thwart the murder plot. While
it is undisputed the officers had probable cause to believe a
firearm was in the rental car, the facts also supported a
reasonable belief that the defendants, who suspected they were
under police surveillance, disposed of the gun during the periods
when police officers lost sight of them. As the trial court noted
here, the situation demanded the police ascertain expeditiously
whether the gun was in the car or not for if it was not, the police
would have to redouble their efforts to locate it elsewhere.
In State v. Alvarez, 238 N.J. Super. 560, 567-68 (App. Div.
1990), we listed some of the factors the Supreme Court had
recognized in State v. Hutchins, 116 N.J. 457 (1989), and State
v. Lewis, 116 N.J. 477 (1989), as contributing to a finding that
19 A-5071-13T1
an exigency existed. A number of those factors are present here:
"the degree of urgency involved and the amount of time necessary
to obtain a warrant"; "reasonable belief that the contraband is
about to be removed"; "information indicating the possessors of
the contraband are aware that the police are on their trail"; "the
gravity of the offense involved"; "the possibility that the suspect
is armed"; and "the strength or weakness of the facts establishing
probable cause." Alvarez, supra, 238 N.J. Super. at 568.
The confluence of these factors here resulted in "a public
emergency and a law enforcement nightmare" that was not dissipated
when the occupants of the rental car were removed and secured.
State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif.
denied, 178 N.J. 250 (2003) (holding exigency continued after six
shots were fired on public street one block from Atlantic City
boardwalk and no gun was found on the suspect because there was
"real danger" the gun was hidden or discarded in a public place
and would be lost as evidence or "fall into malevolent, untrained
or immature hands").
We therefore conclude the officers were presented with
exigent circumstances that justified the warrantless search of the
rental car.
IV.
A warrantless search of Holdren's bedroom resulted in the
20 A-5071-13T1
seizure of various items: a black North Face jacket with the words
"Dark City" written on the back, a red bandana, a red do-rag, a
cell phone, four photographs, an electronic scale, and
"miscellaneous papers related to [SMM] of the Bloods." The State
contended the search was conducted pursuant to a valid consent to
search given by Holdren's foster mother, Michelle Dalton. On
appeal, Thompson challenges the search and seizure; Holdren does
not.
A.
Sergeant Brian Veprek of the Monmouth County Prosecutor's
Office (MCPO) and Dalton testified at the suppression hearing,
providing different accounts.
According to Veprek, he first went to Dalton's residence
after Holdren was identified as a suspect in the shootings to
confirm Holdren lived there and to see if Holdren would voluntarily
go to the MCPO to talk about the investigation. Dalton answered
the door and brought Holdren to the door. Holdren agreed to
accompany the officers to the MCPO. No request was made for any
consent to search the residence at this time.
On December 30, 2006, Veprek returned to the residence with
two other officers in unmarked police cars. As before, Dalton
answered the door and brought Holdren to the door at Veprek's
request. Holdren agreed to accompany the officers to the LBPD to
21 A-5071-13T1
be interviewed. The police did not have an arrest warrant for
Holdren and, according to Veprek, no one said he was under arrest
and Holdren was not placed in handcuffs. Both Holdren and Dalton
were calm and cooperative as they had been during the prior visit.
Detective Sergeant Fernando Sanders advised Veprek that
Dalton stated she had been a probation officer or a corrections
officer. Veprek conceded he lacked probable cause to obtain a
search warrant at that time but decided to "give it a shot in the
dark" and ask for consent to search Holdren's bedroom. When he
asked, Dalton agreed to provide her consent to the search.
Veprek testified he read the consent form to Dalton. He said
the form states the signatory has been advised of: the right to
refuse the search, to revoke consent, to be present during the
search, and to authorize police to remove items of evidential
value; and that the signatory gives police "this permission
voluntarily, of [his or her] own free will, without coercion,
fear, or threat." Dalton read the form aloud and signed the form.
Veprek and Sanders signed the form as witnesses. During this
process, Dalton appeared "calm and cooperative," just as she was
during her conversation with Sanders and during the prior visit.
Dalton brought the officers to Holdren's bedroom. The door
was open and unlocked; no padlock was on the door. Veprek saw the
items that were seized in plain view. Dalton was in the room
22 A-5071-13T1
during the entire search, which lasted about ten minutes. When
Veprek found the SMM paperwork, he told Dalton that Holdren was a
member of a Bloods street gang. Dalton's demeanor changed and she
became visibly upset.
Veprek testified no officer ever threatened Dalton. They did
not tell her they would "tear her house apart"; they did not draw
their weapons at any point during either visit; and there was no
weapon pointed on the house on a tripod. He testified Dalton did
not express fear or reluctance during the search and did not appear
coerced.
Dalton testified she had worked as a corrections officer for
Monmouth County Correctional Facility for six years until 1996.
As a corrections officer, she attended the police academy and took
a course dealing with search and seizure issues.
She explained Holdren began living in her house when he was
fifteen years old, and she gave him his own bedroom. She became
Holdren's foster mother through the Division of Youth and Family
Services (DYFS) when Holdren was seventeen years old. DYFS sent
Dalton a monthly check to pay for Holdren's expenses until he
turned eighteen in July 2006, at which point DYFS began sending
the checks directly to Holdren. Dalton testified Holdren cashed
his checks and gave all the money to her to pay for his rent,
food, utilities, and clothes, and Dalton gave some money back to
23 A-5071-13T1
him as "[s]pending money." She testified Holdren kept his bedroom
door closed, but she sometimes did his laundry and had access to
his room to put clean clothes or linens on his bed.
Dalton testified that when she answered the door on December
30, 2006, she saw three police officers in plain clothes, one of
whom was pointing a gun on a tripod at the door. She explained
she was "petrified" and "startled," and her first words to the
officers were, "what do you want to do, shoot me?" She confirmed
she called Holdren outside on the officers' request, but stated
they handcuffed Holdren as he was walking to the unmarked police
car. She also testified there were two marked police cars from
the Lakewood Police Department with uniformed officers.
She testified that, when the officers asked her for permission
to search, "I felt like I had to let them search. If not, they
would tear up the house. I had no choice in the matter." She
confirmed she remained calm, and signed the form because there was
"a cop in front of the house with a gun, and [she] felt like [she]
had no choice, but to let them search." She stated the police did
not go over the form with her, that she signed it "because [she]
did not want [her] . . . home to be destroyed." Dalton stated
further she did not sign the form until she and the officers were
already inside Holdren's bedroom.
Dalton testified Holdren usually kept his bedroom door
24 A-5071-13T1
closed, but she confirmed there was no lock on the door and the
door was open before the police entered to search. She explained
the search lasted about twenty or twenty-five minutes and she was
very upset, though she maintained her composure and did not cry
while the officers were there.
The trial court found Veprek "highly credible" and found
portions of Dalton's testimony not credible. Dalton appeared
evasive during cross-examination and generally inconsistent and
unreliable. The court specifically rejected Dalton's testimony
that the police arrived on December 30 with a gun on a tripod
pointed at the house and her testimony that the officers asked her
to sign the consent form after they were already inside the house.
Noting Dalton was a former corrections officer and a "strong
woman," the court found she knew her rights, could not be forced
to do something she did not want to do, and would have complained
if she could not stop the search. The court also reasoned that,
if the officers were going to coerce Dalton, it was more likely
they would have completed the search before seeking her written
consent to search. The court concluded Dalton's consent was free,
voluntary, and not the result of coercion.
The trial court also determined Dalton's consent was valid
because she had "common authority" over the searched area. The
court found the relationship between Dalton and Holdren was more
25 A-5071-13T1
like a foster parent or guardian to a child than like a landlord
to a tenant. The court noted Dalton repeatedly referred to Holdren
as her son during her testimony and that Holdren gave all his DFYS
money to Dalton, who then gave him an allowance. The court also
noted Dalton had "complete access to that room, to change the bed,
to do his clothes, to go into his hamper," and it was an "open
room." The court noted Holdren took no "special steps to protect
his personal effects from the scrutiny of the other residents,"
he did not use a lock on his door or any containers in his room,
and he left the door open when he left to go with the police.
B.
Thompson argues the trial court erred in denying the motion
to suppress evidence recovered in Holdren's bedroom because Dalton
did not have authority to consent to the search, and, even if she
did, her consent was not voluntary. For support, he relies on
Dalton's testimony that Holdren paid her rent, Holdren kept his
door closed, and she only had access to place clean clothes or
linens on his bed. Thompson also cites her testimony, rejected
by the trial court, that she felt she had "no choice" after being
threatened by the police.
In reviewing a trial court's decision in a suppression motion,
we defer to its factual findings that are "supported by sufficient
credible evidence," disturbing only those findings that "are so
26 A-5071-13T1
clearly mistaken 'that the interests of justice demand
intervention and correction.'" State v. Scriven, 226 N.J. 20, 32-
33 (2016) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)).
Our review of the legal conclusions based on those findings is de
novo. Ibid.To withstand the suppression motion, the State was required
to show proper consent was given freely and voluntarily. State
v. Coles, 218 N.J. 322, 338 (2014). This requires proof that
Dalton "knowingly waived [her] right to refuse to consent to the
search." State v. Lamb, 218 N.J. 300, 315 (2014) (quoting State
v. Domicz, 188 N.J. 285, 308 (2006)). Any consent must not be
"the result of duress or coercion, express or implied." Ibid.The State must "show that the individual giving consent knew . . .
she 'had a choice in the matter.'" State v. Carty, 170 N.J. 632,
639 (quoting State v. Johnson, 68 N.J. 349, 354 (1975)), modified
174 N.J. 351 (2002).
Giving appropriate deference to the trial court's opportunity
to weigh the credibility of the witnesses, the record provides
ample support for the trial court's finding that Dalton voluntarily
gave her consent to the warrantless search of Holdren's bedroom.
She signed a consent to search form that advised her of her rights
to refuse the search. Moreover, as a former corrections officer,
she had attended the police academy and was familiar with her
27 A-5071-13T1
rights. In addition to finding Dalton's testimony regarding
coercive behavior by the police was not credible, the trial court
reasoned that, after finding both Dalton and Holdren "calm and
cooperative," in their first visit to the residence, the officers
would have no reason to change their tactics to adopt a threatening
approach.
We therefore turn to the legal question, whether Dalton had
the authority to consent to the search.
A third party can provide valid consent to a search of the
defendant's home if that person has "joint occupation" of and
"common authority" over the premises. State v. Cushing, 226 N.J.
187, 199-200 (2016) (quoting Fernandez v. California, __ U.S. __,
__ , 134 S. Ct. 1126, 1132-33, 188 L. Ed. 2d 25, 32-33 (2014); see
also State v. Suazo, 133 N.J. 315, 319-20 (1993)). Although a
landlord generally lacks such authority regarding a tenant's
premises, a parent generally can authorize a search of the room
of an adult child. Cushing, supra, 226 N.J. at 200-01; State v.
Coles, 218 N.J. 322, 340-41 (2014). The payment of rent does not
necessarily result in the application of a landlord-tenant
relationship to the equation. Coles, supra, 218 N.J. at 341 n.5.
In assessing the consent given by Dalton, the "question is
'whether the officer's belief that the third party had the
authority to consent was objectively reasonable in view of the
28 A-5071-13T1
facts and circumstances known at the time of the search.'" Id.
at 340 (quoting Suazo, supra, 133 N.J. at 320). The "officers
need not ultimately be factually correct about a party's ability
to consent to a search." Ibid.In Coles, the Court stated the ultimate question "remains one
of objective reasonableness based on an assessment of the totality
of the circumstances." Id. at 341. When an adult child is living
with parents, determining whether a child has exclusive possession
of his room, appropriate factors to consider include "whether the
child pays rent; whether the parent has access to the child's room
for cleaning or other such general access purposes; and whether
the child has the right to lock the door to deny access." Id. at
340 (footnote omitted) (citing State v. Crumb, 307 N.J. Super.
204, 245 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998)).
Dalton testified that Holdren had no lock on his door and the
door was open at the time she consented to the search. Dalton had
access to Holdren's room to do his laundry and return it to his
bed. Although Holdren gave Dalton money purportedly for "rent,"
the trial court viewed this less as a business transaction and
more of a familial contribution because Holdren merely gave Dalton
his monthly DYFS check, which had been going directly to Dalton
before he turned eighteen, and she gave him spending money from
that sum. These findings are supported by credible evidence and
29 A-5071-13T1
provide sufficient support for the conclusion that Dalton had
common possession of Holdren's bedroom. We therefore agree with
the trial court that Dalton was authorized to provide consent for
the search of Holdren's bedroom. The motions to suppress the
evidence seized from that search were properly denied.
V.
In Points IV and VI, Holdren challenges the admission of
evidence, specifically, opinion testimony from NJSP Sergeant
Thomas J. DeVirgiliis regarding the effects of gang activity on
trade and commerce in Monmouth and Ocean Counties, and testimony
that S.J. possessed a gun near the shooting scene.
We grant substantial deference to the trial court's
discretion on evidentiary rulings unless it is a clear error of
judgment or so wide of the mark that a manifest denial of justice
results. See, e.g., State v. Koedatich, 112 N.J. 225, 313 (1988),
cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803(1989); State v. Carter, 91 N.J. 86, 106 (1982); State v. E.B.,
348 N.J. Super. 336, 344-345 (App. Div. 2002). Moreover, because
there was no objection to the testimony now challenged on appeal,
our review is limited to a search for plain error, State v. Gore,
205 N.J. 363, 383 (2011), that is, an error "clearly capable of
producing an unjust result," State v. Reeds, 197 N.J. 280, 298
(2009) (quoting R. 2:10-2). Reversal of a "conviction is required
30 A-5071-13T1
only if there was error 'sufficient to raise a reasonable doubt
as to whether [it] led the jury to a result it otherwise might not
have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App.
Div. 2008) (alteration in original) (quoting State v. Daniels, 182
N.J. 80, 95 (2004)).
A.
Holdren was charged with conspiracy to commit racketeering,
N.J.S.A. 2C:41-2(c) and (d). To convict him under this statute,
the State had to show Holdren was employed by or associated with
a racketeering enterprise that "affect[ed] trade or commerce" in
New Jersey. State v. Casilla, 362 N.J. Super. 554, 565 (App.
Div.), certif. denied, 178 N.J. 251 (2003); N.J.S.A. 2C:41-2(c).
DeVirgiliis was qualified as an expert specifically "in the
history, structure, rules, regulations, practices, terminology and
dynamics of the Bloods street gang." In Point IV, Holdren argues
that DeVirgiliis's testimony regarding the effects of gang
activity on trade and commerce in Monmouth and Ocean counties in
November and December 2006 was an impermissible net opinion because
it was rendered "without any factual or scientific basis" and "was
nothing more than a hypothesis as to what occurred." He further
argues "[i]t was grossly improper for [DeVirgiliis] to opine on
that element of the [racketeering] offense that needed to be proven
by the State." He also contends the jury charge that they could
31 A-5071-13T1
either accept or reject expert opinions "did not dissipate the
prejudice from the testimony."
Because our New Jersey RICO statute is modeled upon its
federal counterpart, it is appropriate to look to federal RICO
cases for guidance. State v. Cagno, 211 N.J. 488, 508 (2012).
Like our statute, the federal statute requires proof of an effect
on commerce, the difference being that, under 18 U.S.C.A. §
1962(c), the racketeering activity must affect interstate
commerce, and under our statute, the activity must only affect
trade or commerce. Casilla, supra, 362 N.J. Super. at 564-65. In
assessing the sufficiency of proof to satisfy this element under
the federal statute, "[a] minor or minimal influence on interstate
commerce is sufficient." United States v. Farmer, 924 F.2d 647,
651 (7th Cir. 1991). The "required nexus between the activities
of the enterprise and interstate commerce need not be great," and
will be satisfied, "for example, where the enterprise obtains
'supplies from companies located outside' the state." Ibid. The
expansive definition of "trade or commerce" included in our statute
similarly suggests that a minor influence is sufficient to satisfy
this element of the RICO offense. N.J.S.A. 2C:41-1(h) states,
"'Trade or commerce' shall include all economic activity involving
or relating to any commodity or service." (Emphasis added).
At trial, DeVirgiliis testified, without objection, that the
32 A-5071-13T1
Bloods make money "primarily . . . through selling drugs, . . .
guns . . . and through extortion, robbery, and even prostitution."
Asked specifically how the various sets of the Bloods had an effect
on trade and commerce in Monmouth and Ocean Counties, DeVirgiliis
stated:
[T]hat would be tied into the propensity
toward violence that the Bloods street gang
has always demonstrated. Particularly in this
investigation with them talking about the
war . . . with the Brims, getting guns,
handguns, trips, they want a chopper, that
affects trade and commerce, because that
instills fear in citizens who don’t want to
leave their homes, who don’t want to travel
to the store and down the street from their
residence.
It also is a trickle-down effect, because
those individuals or community members are
living in a fear in a gang-infested area. They
fear for their safety. They may leave the
area. They may just go to the store. And in
turn . . . [there is] a trickle-down effect
towards the stores because they are not
receiving the business. And then those
businesses either are terminated, they go out
of business or they may leave the area and try
a new area to set up shop.
[(Emphasis added).]
In light of the minimal impact required to satisfy the "trade
or commerce" element, DeVirgiliis's testimony that the Bloods were
getting guns during the course of this investigation was sufficient
to prove the requisite effect. That testimony also fell within
the scope of his qualifications as an expert. But, DeVirgiliis
33 A-5071-13T1
went on, without objection, to provide not only the gratuitous
opinions cited above but also to opine about the reactions of
residents to gang presence.
Holdren does not challenge the trial court's decision to
qualify DeVirgiliis as an expert "in the history, structure, rules,
regulations, practices, terminology and dynamics of the Bloods
street gang." The thrust of his argument is that DeVirgiliis
lacked an adequate basis to provide an opinion on the specific
effects of gang activity on the local economy and housing market
and that his opinion impermissibly trod upon the ultimate issue
the jury had to decide – whether the activity affected trade or
commerce. There is merit to this criticism.
N.J.R.E. 702 permits qualified expert witnesses to testify
"in the form of an opinion or otherwise," and N.J.R.E. 703 governs
the information "upon which an expert bases an opinion or
inference." Under N.J.R.E. 703, an expert opinion may be based
on "facts or data derived from (1) the expert's personal
observations, or (2) evidence admitted at the trial, or (3) data
relied upon by the expert which is not necessarily admissible in
evidence but which is the type of data normally relied upon by
experts in forming opinions on the same subject." State v.
Townsend, 186 N.J. 473, 494 (2006) (citation omitted); Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on
34 A-5071-13T1
N.J.R.E. 703 (2017). "The corollary of that rule is the net
opinion rule, which forbids the admission into evidence of an
expert's conclusions that are not supported by factual evidence
or other data." Townsend, supra, 186 N.J. at 494. An expert's
conclusion is inadmissible if it is "based merely on unfounded
speculation and unquantified possibilities." Townsend v. Pierre,
221 N.J. 36, 55 (2015) (quoting Grzanka v. Pfeifer, 301 N.J. Super.
563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)).
"[W]hen an expert speculates, 'he ceases to be an aid to the trier
of fact and becomes nothing more than an additional juror.'" Ibid.(quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App.
Div.), certif. denied, 145 N.J. 374 (1996)).
DeVirgiliis admitted his opinion was based solely on "what
[he had] seen . . . being a street gang investigator." He lacked
any factual evidence or data to provide a basis for an opinion
about the specific nexus he described between gang activity and
an alleged, generalized decline in business.
Moreover, an expert may not "usurp the jury's function
by . . . opining . . . in a manner that . . . invades the province
of the jury to decide the ultimate question." State v. McLean,
205 N.J. 438, 453 (2011). When DeVirgiliis's opinion extended
beyond the testimony that the gang was involved in procuring guns
during the time of the investigation to include a conclusion that
35 A-5071-13T1
the activity affected trade or commerce, his testimony invaded the
jury's province.
We conclude, however, that this testimony did not have the
clear capacity to produce an unjust result. Within the context
of the evidence that defendants readily resorted to violence to
settle scores, DeVirgiliis's unsupported theory had little
potential to prejudice Holdren. The speculative basis for his
opinion was revealed through cross-examination when DeVirgiliis
admitted he had not done any research on SMM's effect on trade and
commerce in Monmouth and Ocean counties and had not personally
spoken to anyone in those communities who felt the effects of gang
activity. Furthermore, the trial court's jury instructions
clearly specified the jury was free to accept or reject expert
testimony.
More important, when the challenged testimony is set aside,
there was more than ample evidence to prove the requisite element
that SMM's activities, which included transactions in guns,
affected trade or commerce. Therefore, the inclusion of this
testimony did not amount to plain error. See R. 2:10-2.
B.
In Point VI, Holdren argues the admission of testimony that
S.J. possessed a gun shortly after the shooting warrants a new
trial because (1) it was "irrelevant and immaterial" under N.J.R.E.
36 A-5071-13T1
401; and (2) it was "misleading," "confusing," and "prejudicial"
under N.J.R.E. 403.
The testimony challenged on appeal came from two officers who
responded to the shooting scene. S.J., a known member of G-Shine,
who had been seen with Logan in the past, was observed near the
crime scene. She was detained at the scene and a loaded black
Glock 22 .40 caliber gun was recovered from a car she had been
observed entering. This gun was not used in the Montgomery/Logan
shooting.
The State contends this evidence was relevant because it
showed the thoroughness of its investigation. We disagree. The
evidence regarding S.J.'s possession of a gun that was unconnected
to the shooting had no probative value as to any of the essential
elements of the offenses charged against Holdren. See State v.
Buckley, 216 N.J. 249, 262 (2013). The evidence therefore did not
meet the standard for relevance as defined in N.J.R.E. 401
(evidence is relevant if it has "a tendency in reason to prove or
disprove any fact of consequence to the determination of the
action.").
But, in the absence of any objection to the testimony from
two separate witnesses, there was nothing inherently prejudicial
about the evidence to alert the trial court of any need to act,
sua sponte, to exclude the testimony. Further, in considering
37 A-5071-13T1
whether the admission of this evidence had the clear capacity to
produce an unjust result, we note Holdren admits "Johnson was not
a co-conspirator of [his] and was in fact identified as a G-Shine
member, a supposed enemy." There was, then, little danger the
jury would infer Holdren's guilt from S.J.'s possession of a gun
near the shooting. We are satisfied this testimony lacked any
capacity to produce an unjust result and, therefore, there was no
abuse of discretion in the trial court's tacit admission of this
testimony.
VI.
We next turn to Holdren's arguments that the trial court
erred in denying his motions for a judgment of acquittal and for
a new trial. These arguments merit only limited discussion.
A.
In Point V, Holdren argues the trial court erred in denying
the motion he made at the conclusion of the State's case, and
renewed following the verdict, for a judgment of acquittal on
count one, the racketeering charge. At the conclusion of the
State's case, Holdren moved for a judgment of acquittal on the
racketeering count for failure to prove his actions affected trade
or commerce. The trial court denied the motion because it believed
the State made out "a prima facie case that he may have been
engaged in trade or commerce" by either "the selling and buying
38 A-5071-13T1
of guns" or "[t]he selling or buying of drugs." After the jury
did not find the State had proven the predicate acts of drug
distribution and possession of drugs with intent to distribute,
defendant renewed his motion.
The indictment alleged thirteen predicate acts for the
racketeering charge. The jury found the State had proven beyond
a reasonable doubt: conspiracy to murder Logan, possession of a
weapon for an unlawful purpose (Logan), attempted murder of Logan,
possession of a weapon for an unlawful purpose (Montgomery), murder
of Montgomery, conspiracy to murder Stallworth, possession of a
weapon for an unlawful purpose (Stallworth) and attempted murder
of Stallworth. In denying Holdren's motion for the second time,
the court found there was "more than enough" evidence for the jury
to conclude SMM "was involved in activity which amounted to
racketeering activity . . . [a]nd that it did in fact affect trade
or commerce."4 We agree.
B.
In Point VII, Holdren argues the trial court erred in denying
his motion for a new trial. He identifies four grounds for
granting his motion: (1) the court erred in preventing the defense
4
We note the similarity between the court's finding as to the
strength of evidence on this count and the argument Holdren made
to support his claim that the trial court erred in denying his
motion for severance.
39 A-5071-13T1
from questioning a prosecution witness, T.A., regarding an
admission by a co-defendant; (2) the verdict was against the weight
of the evidence; (3) there was insufficient evidence to support
defendant's conviction for the attempted murder of Stallworth; and
(4) the racketeering charge should have been dismissed. The first
of these arguments requires only limited discussion and the
remaining arguments lack sufficient merit to warrant discussion.
R. 2:11-3(e)(2).
At trial, defendant sought to question T.A., Montgomery's
girlfriend, about a statement she made to Montgomery's mother
regarding an alleged admission by McClendon. The proposed
testimony was that McClendon bragged about shooting Montgomery and
Logan and "was holding his waist like he had a piece" during this
statement. The State objected. At the hearing conducted out of
the presence of the jury, T.A. admitted she did not hear McClendon
make the statement and got this information "[j]ust out on the
street." The trial court ruled this testimony was double hearsay
and sustained the objection.
Holdren argues the excluded testimony should have been
admitted as a declaration against interest, pursuant to N.J.R.E.
803(b)(25), and as a statement by a co-conspirator, pursuant to
N.J.R.E. 803(b)(5). We disagree.
We review a trial court's evidentiary rulings for abuse of
40 A-5071-13T1
discretion. State v. Scharf, 225 N.J. 547, 572 (2016), and find
none here. For a double hearsay statement "[t]o be admitted into
evidence, each component of the statement must separately be
admissible under an enumerated exception to the hearsay rule."
Beasley v. Passaic Cty., 377 N.J. Super. 585, 602 (App. Div. 2005).
Neither N.J.R.E. 803(b)(5) nor (25) provide an exception for
statements by anonymous strangers to a testifying witness. The
trial court therefore correctly excluded the proposed testimony.
VII.
Finally, we turn to defendants' challenges to their
sentences.
"Appellate review of sentencing decisions is relatively
narrow and is governed by an abuse of discretion standard." State
v. Blackmon, 202 N.J. 283, 297 (2010). The Supreme Court directs
appellate courts to determine whether:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience.
[State v. Fuentes, 217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)) (internal
quotations marks omitted).]
Upon completion of review, appellate courts are "bound to
41 A-5071-13T1
affirm a sentence, even if it would have arrived at a different
result, as long as the trial court properly identifies and balances
aggravating and mitigating factors that are supported by competent
credible evidence in the record." State v. O'Donnell, 117 N.J.
210, 215 (1989). An appellate court should modify a sentence
"only when the trial court's determination was 'clearly
mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State
v. Jarbath, 114 N.J. 394, 401 (1989)).
VIII.
Before imposing sentence on Thompson, the trial court stated
it considered State v. Yarbough, 100 N.J. 627 (1985), cert. denied,
475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and
authorities cited by the State regarding the imposition of a
consecutive sentence for the racketeering charge. Thompson argues
this explanation was inadequate for the imposition of a consecutive
sentence on count one, the racketeering count.
At sentencing, however, his counsel did not ask the court to
impose concurrent sentences; he asked the court to sentence
Thompson in accordance with the plea agreement. The sentence
imposed on Thompson was consistent with the recommendation made
by the State as part of the plea agreement: (1) a thirty-year
sentence with no parole on count six; (2) a concurrent twenty-year
sentence, subject to NERA, on counts two, four, nineteen, and
42 A-5071-13T1
twenty-one; and (3) a consecutive ten-year sentence on count one.
Count two merged with count four, and count nineteen merged with
count twenty-one. Counts three, five, eighteen, twenty, twenty-
two, and twenty-three were dismissed.
In Yarbough, supra, 100 N.J. at 643-44, the Supreme Court set
forth factors relevant to the determination whether a consecutive
sentence is appropriate. Ordinarily, an appellate court must
remand for resentencing "[w]hen a trial court fails to give proper
reasons for imposing consecutive sentences at a single sentencing
proceeding." State v. Randolph, 210 N.J. 330, 353 (2012)
(alteration in original) (citation omitted). However, appellate
courts may "affirm[] a consecutive sentence where the facts and
circumstances leave little doubt as to the propriety of the
sentence imposed." State v. Jang, 359 N.J. Super. 85, 98 (App.
Div.), certif. denied, 177 N.J. 492 (2003). When a defendant is
sentenced according to a plea agreement and the reasons for the
imposition of a consecutive sentence are self-evident, an explicit
assessment of the Yarbough factors is unnecessary. State v. Soto,
385 N.J. Super. 247, 257 (App. Div. 2006); see also State v. S.C.,
289 N.J. Super. 61, 70-71 (App. Div. 1996).
Moreover, although the trial court did not expound upon its
analysis of the Yarbough factors, its failure to do so will not
require re-sentencing because the consecutive sentence is
43 A-5071-13T1
consistent with those guidelines. See Soto, supra, 385 N.J. Super.
at 257. The imposition of a consecutive sentence was supported
by a number of Yarbough factors: Thompson entered guilty pleas to
racketeering, conspiracy to commit murder, attempted murder of
Logan, murder of Montgomery, conspiracy to commit murder of
Stallworth and attempted murder of Stallworth. The racketeering
charge was therefore an offense separate from the other offenses,
which involved separate acts of violence or threats of violence,
that were committed at different times and places, and the
convictions for which the sentences are to be imposed are numerous.
See Yarbough, supra, 100 N.J. at 644.
Finally, the imposition of a consecutive sentence on the
racketeering conviction was consistent with the legislative intent
to "punish separately and by consecutive sentences a defendant
convicted of both a RICO conspiracy and a predicate offense."
State v. Taccetta, 301 N.J. Super. 227, 259 (App. Div.), certif.
denied, 152 N.J. 187 and 152 N.J. 188 (1997).
IX.
The trial court sentenced Holdren to life in prison, subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the
Graves Act, N.J.S.A. 2C:43-6, for the murder of Montgomery (count
six). The trial court imposed consecutive terms on the following
counts: fifteen years, subject to a parole disqualifier of seven-
44 A-5071-13T1
and-one-half years, for racketeering (count one) and twenty-five
years, subject to NERA and the Graves Act, for the attempted murder
of Stallworth (count twenty-one). A concurrent term of twenty-five
years, subject to NERA and the Graves Act, was imposed for the
attempt to murder Logan (count four). The remaining counts merged.
The resulting aggregate sentence was life in prison plus forty
years, subject to a ninety-two-and-one-half-year period of parole
ineligibility.
Holdren acknowledges "a substantial sentence was warranted"
for his convictions, but argues the aggregate sentence of life
imprisonment plus forty years, with a parole-ineligibility period
of ninety-two-and-one-half years was "unduly punitive, grossly
excessive and should be reduced." He has not argued that the
trial court erred in finding aggravating factors three, six and
nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), or in failing to find
any mitigating factor. He faults the trial court for imposing
three consecutive sentences, for imposing a sentence
disproportionately harsher than the sentences imposed on Thompson
and another co-defendant, McClendon, and for violating the tenets
of Miller v. Alabama, 567 U.S. 460, 489, 132 S. Ct. 2455, 2475,
183 L.Ed. 2d 407, 430 (2012), when it failed to give weight to his
young age at the time he committed the crime.
45 A-5071-13T1
A.
We note that Holdren's convictions for the murder of
Montgomery and attempted murders of Logan and Stallworth meet five
Yarbough factors: (1) the crimes were clearly independent and had
as objectives the murders of three different people; (2) the crimes
involved separate acts of violence – one murder and two attempted
murders; (3) the crimes were committed nearly a month apart in two
different counties – the Montgomery/Logan shooting occurred in
Monmouth County on November 22, 2006, and the attempted murder of
Stallworth occurred in Ocean County on December 28, 2006; (4) the
crimes involved three victims – Montgomery, Logan, and Stallworth;
and (5) Holdren was sentenced on nine separate convictions. See
Yarbough, supra, 100 N.J. at 643-44.
The trial court explicitly addressed the justifications of
imposing consecutive versus concurrent sentences, ultimately
finding "consecutive sentences [were] appropriate" because
Holdren's "crimes and their objectives were predominantly
independent of each other," his acts "were separate acts against
separate victims" committed at different times and places, he had
"three individual victims," he was convicted of "nine separate
counts," and he exhibited a "history of antisocial behavior since
the age of 12." This analysis represented a fair consideration
of the factors set forth in Yarbough, supra, 100 N.J. at 643-44,
46 A-5071-13T1
for determining whether a consecutive sentence is appropriate as
well as a cogent statement of reasons for the imposition of
consecutive sentences. See State v. Miller, 108 N.J. 112, 122
(1987).
Furthermore, the imposition of a consecutive sentence on
count one, the racketeering conviction, was consistent with the
legislative intent underlying New Jersey's RICO statute, N.J.S.A.
2C:41-1 to -6.2, to "punish separately and by consecutive sentences
a defendant convicted of both a RICO conspiracy and a predicate
offense." Taccetta, supra, 301 N.J. Super. at 259 (citing State
v. Ball, 268 N.J. Super. 72, 145-46 (App. Div. 1993), aff'd, 141
N.J. 142 (1995), cert. denied sub nom. Mocco v. New Jersey, 516
U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996)).
B.
Holdren next argues the disparity between his sentence and
the one imposed on co-defendant McClendon requires a more lenient
sentence. We disagree.
A principal goal in reviewing sentences "is the elimination
of disparity in order to ensure uniformity and predictability."
State v. Palma, 219 N.J. 584, 592 (2014). Although "[d]isparity
may invalidate an otherwise sound and lawful sentence, . . . '[a]
sentence of one defendant not otherwise excessive is not erroneous
merely because a co-defendant's sentence is lighter.'" State v.
47 A-5071-13T1
Roach, 146 N.J. 208, 232 (alteration in original) (quoting State
v. Hicks, 54 N.J. 390, 391 (1969)), 519 U.S. 1021, 117 S. Ct. 540,
136 L. Ed. 2d 424 (1996).
In performing a disparate sentencing analysis, the trial
court must first "determine whether the co-defendant is identical
or substantially similar to the defendant regarding all relevant
sentencing criteria" and "then inquire into the basis of the
sentences imposed on the other defendant." Id. at 233.
Consideration should be given to "the length, terms, and conditions
of the sentence imposed on the co-defendant." Ibid. If the trial
court finds the co-defendant to be "sufficiently similar, the
court must give the sentence imposed on the co-defendant
substantive weight when sentencing the defendant in order to avoid
excessive disparity." Ibid.
Holdren contends his culpability is comparable to that of
McClendon, who entered a guilty plea to one count of conspiracy
to murder Logan and stood trial on unrelated crimes. McClendon
received a fifty-five-year sentence subject to NERA; two
consecutive sentences, for ten and five years; and a concurrent
twenty-year sentence as part of a negotiated plea deal.
The trial court rejected Holdren's argument. It found Holdren
and McClendon were "not identical or substantially similar to each
other regarding all relevant sentencing criteria" because, unlike
48 A-5071-13T1
Holdren, McClendon pled guilty to conspiracy to commit murder, was
a lower-ranked member of SMM whose subservience to Holdren was
demonstrated by his request for help from Holdren and Thompson in
retaliating against G-Shine. The court also found it unlikely that
McClendon had shot Montgomery or Logan.
These findings, which are supported by the record, show
Holdren and McClendon had different levels of culpability in the
crimes committed. Further, the fact that McClendon's sentence
involved a negotiated plea while Holdren refused the State's plea
offer further relieves the trial court of its obligation to treat
the two co-defendants uniformly in sentencing. See State v.
Gonzalez, 223 N.J. Super. 377, 393 (App. Div.), certif. denied,
111 N.J. 589 (1988) (justifying disparate sentences where one co-
defendant cooperated with law enforcement authorities).
Therefore, this was not a case in which the disparity between
Holdren's and McClendon's sentences was cause to "invalidate an
otherwise sound and lawful sentence." Roach, supra, 146 N.J. at
232.
C.
Finally, we turn to Holdren's argument that the sentence
violated principles articulated by the United States Supreme
Court. In Miller, supra, 567 U.S. at 489, 132 S. Ct. at 2475, 183
L. Ed. 2d at 430, the Supreme Court held sentencing schemes that
49 A-5071-13T1
imposed mandatory sentences of life without parole on juveniles
convicted of homicide offenses violated the Eighth Amendment's
proscription of cruel and unusual punishment. Miller has no impact
on our review of Holdren's sentence because, at eighteen, he was
not a juvenile offender, and the sentence imposed was not a
mandatory life sentence without the possibility of parole.
Moreover, the trial court did take Holdren's youth into
consideration. Although it found no "viable mitigating factors,"
the court acknowledged Holdren's young age, his "lack of prior
indictable criminal activity," and the "excessive hardship" he
would experience as a result of "extensive imprisonment." The
trial court gave this factor "very little weight," however, "in
light of the crimes committed," finding the need for the protection
of the public was a significant factor in imposing sentence.
Following our review of all the arguments advanced in light
of the record and applicable principles of law, we conclude
Holdren's argument that his convictions must be reversed on the
basis of cumulative error lacks any merit. R. 2:11-3(e)(2).
Affirmed.
50 A-5071-13T1