STATE OF NEW JERSEY VS. LASHAWN FITCHÂ (09-07-1467, MONMOUTH COUNTY AND STATEWIDE) ( 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NOT FOR PUBLICATION WITHOUT THE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-1014-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LASHAWN FITCH, a/k/a
LASHAWN D. FITCH,
Defendant-Appellant.
__________________________
Submitted January 11, 2017 – Decided September 22, 2017
Before Judges Simonelli and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
09-07-1467.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the briefs).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a jury trial, defendant Lashawn Fitch was convicted
of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); first-
degree robbery, N.J.S.A. 2C:15-1 (count three); and first-degree
felony murder, N.J.S.A. 2C:11-3(a)(3) (count four). At
sentencing, the trial judge merged counts one and two into count
three and count three into count four, and sentenced defendant on
count four to a forty-year term of imprisonment with an eighty-
five percent period of parole ineligibility pursuant to the No
Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following contentions:
POINT I
ADMISSION OF THE TWO TEXT MESSAGES
THAT REFERENCED [DEFENDANT]
PURSUANT TO THE CO-CONSPIRATOR
EXCEPTION TO THE HEARSAY RULE WAS
ERRONEOUS.
POINT II
THE ADMISSION OF OTHER CRIME
EVIDENCE WAS GROSSLY PREJUDICIAL
AND DENIED DEFENDANT A FAIR TRIAL.
POINT III
THE REPEATED PLAYING OF THE 2009
VIDEOTAPED STATEMENT OF IAN EVERETT
CONTAINING INADMISSIBLE HEARSAY WAS
2 A-1014-14T3
UNDULY PREJUDICIAL AND DEPRIVED
DEFENDANT OF A FAIR TRIAL.
POINT IV
THE TESTIMONY OF DETECTIVE BALDWIN
OPINING ON THE CREDIBILITY OF A
WITNESS AND GUILT OF DEFENDANT WAS
IMPROPER AND DEPRIVED DEFENDANT OF
A FAIR TRIAL. (Not raised below).
POINT V
THE FAILURE OF THE COURT TO GIVE THE
APPROPRIATE CHARGE TO THE JURY ON
ACCOMPLICE LIABILITY WAS ERROR
MANDATING REVERSAL.
POINT VI
DENIAL OF THE DEFENDANT'S MOTION FOR
[A] NEW TRIAL WAS ERROR.
POINT VII
THE SENTENCE IMPOSED UPON THE
DEFENDANT OF FORTY (40) YEARS WITH
[EIGHTY-FIVE PERCENT] PAROLE
INELIGIBILITY WAS EXCESSIVE AND
SHOULD BE MODIFIED AND REDUCED.
POINT VIII
THE AGGREGATE ERRORS DENIED
DEFENDANT A FAIR TRIAL. (Not raised
below).
Defendant raises the following contentions in a pro se
supplemental brief:
3 A-1014-14T3
POINT I
PROSECUTOR'S REMARKS DURING OPENING
STATEMENTS DENIED DEFENDANT A FAIR TRIAL. (Not
raised below).
POINT II
TRIAL ERRORS
(Partially raised)
I. IT WAS PREJUDICIAL FOR THE COURT TO
PERMIT VIDEO EXCERPTS OF IAN [EVERETT'S]
MARCH 26, 2009 STATEMENT WITHOUT HOLDING
A [N.J.R.E.] 104(a) HEARING AND FOR NOT
INSTRUCTING THE JURY.
II. IT WAS PREJUDICIAL FOR THE TRIAL COURT
IN PERMITTING VIDEO PLAY-BACK OF IAN
[EVERETT'S] MARCH 26, 2009 OUT-OF-COURT
STATEMENTS WITHOUT PUTTING THE REPLAY IN
PROPER CONTEXT FOR THE JURY.
POINT III
JUROR TAINT (not raised below).
I. THE COURT ERRED IN NOT EXCLUDING JUROR
#6 . . . AFTER SHE RECEIVED A PHONE CALL
FROM A CORRECTIONAL FACILITY.
II. BECAUSE JUROR #5 . . . WITHHELD
PREJUDICIAL INFORMATION ON VOIR DIRE[,]
DEFENDANT WAS DENIED PEREMPTORY
CHALLENGE WHICH DEPRIVED DEFENDANT OF A
FAIR TRIAL.
POINT IV
JURY CHARGE ERRORS DEPRIVED [DEFENDANT OF] A
FAIR TRIAL. (Not raised below).
POINT V
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR
TRIAL. (Not raised below).
4 A-1014-14T3
We have considered the contentions in Points IV and VIII of
defendant's initial brief and Points I, II, III, and V of his pro
se supplemental brief in light of the record and applicable legal
principles and conclude they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Accordingly, we focus on the remaining contentions.
I.
The charges against defendant stemmed from the shooting death
of Nathaniel Wiggins, a marijuana dealer. Ian Everett was the
State's main witness. According to Everett, on the afternoon of
March 11, 2008, he, defendant, Kenny Michael Bacon-Vaughters
(Kenny-Mike), and Aron Pines (Aron) were outside Everett's home
on 9th Avenue in Neptune "chillin' before [Kenny-Mike] went to
work." Everett saw a car pass by with a blue pit bull inside.
The occupant waved at Aron, and Aron waved back. Aron said to
Everett, "that's the weed man."
At approximately 4:15 p.m., Everett and Aron were outside
Everett's home when a fight erupted in a park across from the
corner of 9th and Ridge Avenue. Everyone fled after the Neptune
Township police arrived. Someone ran into the backyard of
Everett's home. Everett went to the backyard, but saw no one
there. He looked around and saw "a big" gun on the ground, which
he described as a revolver or "shell catcher" or "probably like a
5 A-1014-14T3
.45 or something crazy like that." Defendant was also in the
backyard at the time. Everett told him to remove the gun from the
backyard, and defendant complied.
At approximately 8:30 p.m., defendant, Everett, and Aron
returned to Everett's home and were playing video games and
"smoking weed." Defendant had the gun with him and shot it once
while on the back roof of Everett's home. Everett told defendant
and Aron to get the gun out of his home. Everett heard Aron say
that he wanted to take the gun to the weed man's home to rob him.
Everett also heard defendant and Aron talk "about going over there
to rob, to go through [with] it." As defendant and Aron left,
they asked Everett if he was coming, but he declined.
Everett testified that Aron left his home to go pick up Kenny-
Mike and defendant left approximately twenty to thirty minutes
later after defendant's mother told him to babysit his younger
siblings. He also testified that the next morning, defendant came
to his home and told him that "he heard something about what
[Kenny-Mike] and them did" the night before, but did not say he
was involved.
Because this testimony contradicted Everett's March 29, 2009
videotaped statement to Detective Daniel Baldwin of the Monmouth
6 A-1014-14T3
County Prosecutor's Office, the State requested a Gross1 hearing
to determine the admissibility of the videotaped statement. In
the videotaped statement, Everett said defendant and Aron left his
home together, and that defendant told him the next day that Kenny-
Mike knocked on the weed man's door, the weed man wrestled with
Kenny-Mike, "something had happened[,]" and they got rid of the
gun afterwards. On cross- and re-direct examination during the
Gross hearing, Everett recanted nearly his entire videotaped
statement. The judge permitted the State to play the videotaped
statement to the jury during Baldwin's testimony, with
inadmissible statements redacted. Defendant agreed to the
redactions.
Michael Smith testified that he was a passenger in Wiggins'
car when they drove by a "group of [high school] kids" on 9th
Avenue and Wiggins waved to one of them. At approximately 9:00
p.m., he and Wiggins were shopping at the Walmart in Neptune when
Wiggins received a phone call. As Wiggins drove Smith home, he
told Smith the call was from "the kid" he had waved earlier to on
9th Avenue. Wiggins was skeptical and seemed worried because "the
kid" wanted to purchase a different amount of marijuana than usual
and said he had no car, when Wiggins knew he had a Honda Civic.
1
State v. Gross, 121 N.J. 1 (1990).
7 A-1014-14T3
Smith said to Wiggins, "if you feel something's wrong, then . . .
don't go through with it."
Wiggins' girlfriend, Faith Montanino, testified that she was
in the couple's apartment the evening of March 11, 2008, and saw
Wiggins weighing marijuana in the bedroom. She heard a knock on
the kitchen door and saw Wiggins peer out the bedroom window.
Wiggins said "Oh, shit" and quickly walked to the kitchen door.
She then heard "a loud noise, like a commotion almost" and heard
Wiggins call her name. She walked quickly to the kitchen and saw
the kitchen door ajar and Wiggins on the floor. Wiggins said,
"Faith, I've been shot. Hide the weed. Call the cops." She ran
around the apartment and placed all of the drug paraphernalia in
a bag. She hid the bag in the trunk of her car and went back to
the apartment and called 9-1-1. As she was speaking to the 9-1-1
operator, Wiggins said that Kenny-Mike shot him.
Police Officers Brett Paulus and Matthew Bailey from the
Eatontown Police Department (EPD) arrived on scene less than one
minute after dispatch. Paulus testified that as he approached the
apartment building, Montanino rushed out crying and yelling that
her boyfriend had been shot. Paulus directed Montanino towards
Bailey and proceeded to the rear of the building where a stairway
led to the couple's second floor apartment. As Paulus scanned the
dark, wooded area behind the building for potential suspects, he
8 A-1014-14T3
heard someone yelling for help and saw a person lying with his
head outside the doorway of a second floor apartment.
Paulus proceeded up the stairway and stood next to Wiggins.
Wiggins grabbed Paulus' pant leg and started to pull on it. When
Paulus knelt down beside him, Wiggins said, "I'm dying, oh God,
I'm dying. Kenny-Mike shot me." Paulus asked where Kenny-Mike
lived, and Wiggins replied, "Neptune." Paulus questioned Wiggins
about Kenny-Mike's appearance and whether he had seen a gun, but
Wiggins simply repeated that Kenny-Mike shot him. Wiggins was
transported to the hospital where he later died of his gunshot
wounds.
The police secured the scene and began searching the exterior
of the building for evidence. In the parking lot of a neighboring
business, the police found a black knit glove, black knit face
mask, and saliva on the ground.
Montanino eventually went to the EPD, where the police showed
her a photo of Kenny-Mike. She immediately recognized him as one
of Wiggins' frequent marijuana customers and told the police where
he lived in Neptune.
At approximately 9:30 the next morning, Lieutenant John
Cleary of the EPD drove through the housing development adjacent
to Wiggins' apartment building. On Grant Avenue, which was
approximately one-half mile from the crime scene, Cleary found a
9 A-1014-14T3
black knit hat with two holes cut out for eyes and purple gloves.
As Cleary was collecting the items, Susan Schmardel, who lived
nearby, exited her home to walk her dog. Cleary asked Schmardel
whether she had noticed the hat and gloves during any of her
previous walks, and she said she had not. Schmardel said she had
walked her dog along the same route at approximately 9:00 the
night before, and was positive the items were not there at that
time.
The evidence collected from both the parking lot adjacent to
Wiggins' apartment complex and Grant Avenue, along with DNA samples
from defendant, Aron, Kenny-Mike, and Aron's brother, Tahj Pines,
who later became a suspect, were submitted for DNA analysis and
comparison. Tahj's DNA was found on the saliva and black mask
collected from the parking lot, but all four suspects were excluded
as contributors of the DNA on the black glove found in the parking
lot. Defendant could not be excluded as a contributor of the DNA
on the purple gloves found on Grant Avenue, but his DNA was found
on the black cloth hat discovered there.
The police obtained Wiggins', Aron's, and Kenny-Mike's
cellphone records. Aron's cellphone records revealed he
communicated with Tahj on the night of the murder. The cellphone
records also revealed that in the hours preceding the murder, Aron
called Wiggins at 9:09 p.m. via a cell tower in Neptune. There
10 A-1014-14T3
were also five calls between Aron and Tahj, and two calls between
Aron and Kenny-Mike, all via cell towers in Neptune or Asbury
Park. Aron called Wiggins at 10:03 p.m., and Wiggins returned the
call one minute later; both calls were via an Eatontown cell tower
less than one mile from Wiggins' apartment. Kenny-Mike received
a call at 10:04 p.m. via the same Eatontown cell tower. There was
no activity on any of the cellphones between 10:07 p.m. and 10:20
p.m.
Six minutes after Montanino called 9-1-1, Kenny-Mike received
a call and made two calls, all via a cell tower on Route 35 in
Ocean Township between Wiggins' apartment and the suspects' homes.
Between 10:32 p.m. and 10:46 p.m., there were two calls between
Aron and Kenny-Mike, and three calls between Aron and Tahj; all
via cell towers in Neptune or Asbury Park.
The morning after the murder, Aron called Kenny-Mike at 6:49
and 6:58. At 9:46 a.m., Kenny-Mike sent Aron the first of numerous
text messages relaying updates on the homicide investigation. Two
text messages referenced defendant. One stated "Ayo wats good wit
fitch like he said he told delete this ryt away." The other text
message stated "Fitch said they mite b cumin 4 u . . . they took
him in."
11 A-1014-14T3
II.
The State charged defendant as a co-conspirator and proffered
the two text messages as statements in furtherance of the
conspiracy pursuant to N.J.R.E. 803(b)(5). Defendant filed a
motion to suppress, arguing there was insufficient evidence of a
conspiracy. The judge denied the motion, finding Everett's
statements about defendant's involvement and the black cloth hat
containing defendant's DNA found on Grant Avenue were independent
proof establishing a conspiracy and defendant's participation in
it.
On appeal, defendant contends in Point I of his initial brief
that admission of the text messages violated the hearsay rule and
his right of confrontation because the conspiracy was over; the
text messages were not made in furtherance of or during the course
of the conspiracy; and there was no evidence of a cover-up or that
he was involved in the robbery. We disagree.
Our Supreme Court has established the standard of review
applicable a trial judge's ruling on a motion to suppress:
Appellate review of a motion judge's factual
findings in a suppression hearing is highly
deferential. We are obliged to uphold the
motion judge's factual findings so long as
sufficient credible evidence in the record
supports those findings. Those factual
findings are entitled to deference because the
motion judge, unlike an appellate court, has
the opportunity to hear and see the witnesses
12 A-1014-14T3
and to have the feel of the case, which a
reviewing court cannot enjoy.
[State v. Gonzalez, 227 N.J. 77, 101 (2016)
(citations omitted).]
In addition, we review a trial court's evidential ruling for abuse
of discretion. State v. Kuropchak, 221 N.J. 368, 385-86 (2015).
An abuse of discretion only arises on demonstration of "manifest
error and injustice[,]" State v. Torres, 183 N.J. 554, 572
(citation omitted), and occurs when the evidence diverts jurors
"from a reasonable and fair evaluation of the basic issue of guilt
or innocence." State v. Moore, 122 N.J. 420, 467 (1991) (citation
omitted). Applying the above standards, we discern no reason to
reverse the admission of the text messages.
"Hearsay" is "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." N.J.R.E.
801(c). Hearsay is inadmissible unless it falls within one or
more of the exceptions enumerated in the evidence rules. State
v. Branch, 182 N.J. 338, 348 (2005). Hearsay "admitted contrary
to this State's evidentiary rules and decisional laws . . .
violate[s] the Federal and State Confrontation Clauses." Id. at
353. "Both the hearsay rule and the right of confrontation protect
a defendant from the incriminating statements of a faceless accuser
who remains in the shadows and avoids the light of court." Id.13 A-1014-14T3
at 348. The exceptions to the hearsay rule "are justified
primarily because the circumstances under which the statements are
made provide strong indicia of reliability." State v. Savage, 172
N.J. 374, 402 (2002) (quoting State v. Phelps, 96 N.J. 500, 508
(1984)).
The co-conspirator exception to the hearsay rule, embodied
in N.J.R.E. 803(b)(5), permits a statement to be admitted against
a party if the statement was made while the party and declarant
were allegedly participating in a plan to commit a crime or civil
wrong and the statement was made in furtherance of that plan, even
if the plan was frustrated. See Savage, 172 N.J. at 404. The
rationale for the co-conspirator exception is the concept that
"[p]articipation in a conspiracy confers upon co-conspirators the
authority to act in one another's behalf to achieve the goals of
the unlawful scheme." State v. Harris, 298 N.J. Super. 478, 487
(App. Div.), certif. denied, 151 N.J. 74 (1997). "Since
conspirators are substantively liable for the acts of their co-
conspirators," it follows that "they are equally responsible for
statements by their confederates to further the unlawful plan."
Ibid. It is well-established that the co-conspirator exception
does not offend the Sixth Amendment's guarantee of a defendant's
right to confront the witnesses against him. State v. Boiardo,
111 N.J. Super. 219, 229 (App. Div.), certif. denied, 57 N.J. 13014 A-1014-14T3
(1970), cert. denied, 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d
231 (1971).
To qualify for admissibility under N.J.R.E. 803 (b)(5), the
State must show 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 defendant's
relationship to it." Savage, supra, 172 N.J. at 402 (quoting
State v. Phelps, 96 N.J. 500, 509-10 (1984)). The "nature of the
hearsay should engender a strong sense of inherent
trustworthiness." Phelps, supra, 96 N.J. at 511. The first two
factors "reflect notions that an agent's statements are
vicariously attributable to a principal." Id. at 510. The third
factor "reduces the fear that a defendant might be convicted or
held liable in damages solely on the basis of evidence that he has
had no opportunity to impeach or refute." Id. at 510-11.
A conspiracy continues until its objective is fulfilled.
State v. Cherry, 289 N.J. Super. 503, 523 (1995). If a statement
is made after the conspiratorial objective is completed, it is
generally not admissible under the co-conspirator exception.
State v. Sparano, 249 N.J. Super. 411, 420-21 (App. Div. 1991).
However, a conspiracy may continue beyond the actual commission
of the object of the conspiracy if it is shown that a conspirator
15 A-1014-14T3
enlisted false alibi witnesses, concealed weapons, or fled in
order to avoid apprehension. Cherry, supra, 289 N.J. Super. at
523-24. Moreover, 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 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."
State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div. 1997).
The trial court must make a preliminary determination of
whether there is independent proof of the conspiracy. N.J.R.E.
104(b). Specifically, the court must determine whether there is
independent evidence "substantial enough to engender a strong
belief in the existence of the conspiracy and of [the] defendant's
participation." Phelps, supra, 96 N.J. at 511. The requisite
independent evidence may take many different forms, "such as books
and records, testimony of witnesses, or other relevant evidence.
There may be a combination of different types of proof." Id. at
511. "Thus, if the hearsay evidence is corroborated with
sufficient independent evidence that engenders a strong sense of
its inherent trustworthiness, it is admissible under the co-
conspirator exception." Savage, supra, 172 N.J. at 403.
Here, the two post-homicide text messages mentioning
defendant satisfied all three factors for admissibility and did
16 A-1014-14T3
not violate defendant's confrontation rights. Although defendant
asserts the conspiracy had ended when the robbery was completed,
a conspiracy may continue beyond the commission of the object of
conspiracy. Cherry, supra, 289 N.J. Super. at 523-24. In Cherry,
we held that statements made after a murder by a co-conspirator
to his wife, explaining her alibi role, were made in the course
of the conspiracy because the husband was still planning to conceal
himself from detection and dispose of evidence. 289 N.J. Super.
at 523-24. The conspiracy in this case continued after the initial
conspiratorial object of robbing Wiggins was satisfied because the
text messages show that defendant and his co-conspirators
continued to collaborate about the homicide.
Moreover, the text messages satiate the remaining two prongs
to qualify for admissibility pursuant to the co-conspirator
hearsay exception. The text messages between Aron and Kenny-Mike
were exchanged in furtherance of the conspiracy, and the exchange
of messages "promoted, or [were] intended to promote, the goals
of the conspiracy" by evading apprehension. State v. Farthing,
331 N.J. Super. 58, 84 (App. Div. 2000) (quoting United States v.
Beech-Nut Nutrition Corp., 871 F. 2d. 1181, 1199 (2d. Cir.), cert.
denied sub nom., Lavery v. United States, 493 U.S. 933, 110 S. Ct.
324, 107 L. Ed. 2d 314 (1989)). The text messages reassured Aron
that defendant was abiding by their plan, and encouraged him to
17 A-1014-14T3
destroy evidence and evade apprehension by directing him to delete
the message. The text message stating "Fitch said they mite b
cumin 4 u . . . they took him in" apprised Kenny-Mike that
detectives had interviewed defendant and warned Kenny-Mike that
investigators might be coming for him, hindering Kenny-Mike's
apprehension and prosecution.
Finally, there was ample evidence independent of the text
messages supporting the judge's determination that a conspiracy
existed and defendant participated in it. Everett's videotaped
statement described the formation of the conspiracy to commit the
robbery, recounting both Aron and defendant speaking about robbing
Wiggins. In addition, defendant's DNA was found on the black
cloth hat recovered less than a mile from Wiggins' apartment.
Defendant was similarly involved in the post-homicide conspiracy
to avoid apprehension, discarding his mask during flight after the
homicide, and admitting to Everett that "they got rid of the gun."
Accordingly, admission of the text messages was proper.
III.
For the first time on appeal in Point II of his initial brief,
defendant challenges evidence of alleged other crimes he committed
by firing a gun not identified as the murder weapon under
circumstances where he was not accused of being the shooter and
smoking weed prior to the robbery. Because defendant did not
18 A-1014-14T3
raise this argument at trial, we review it for plain error. R.
2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). We will reverse
on the basis of an unchallenged error only if it was "clearly
capable of producing an unjust result." Macon, supra, 75 N.J. at
337. To reverse for plain error, we must determine there is a
real possibility that the error led to an unjust result, that is,
"one sufficient to raise a reasonable doubt as to whether [it] led
the jury to a result it otherwise might not have reached." Id.
at 336.
"[E]vidence of other crimes, wrongs or acts is not admissible
to prove the disposition of a person in order to show that such
person acted in conformity therewith." N.J.R.E. 404(b). However,
"[s]uch evidence may be admitted for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident when such matters are
relevant to a material issue in dispute. Ibid.
"The threshold determination under Rule 404(b) is whether the
evidence relates to 'other crimes,' and thus is subject to
continued analysis under Rule 404(b), or whether it is evidence
intrinsic to the charged crime, and thus need only satisfy the
evidence rules relating to relevancy, most importantly, Rule 403."
State v. Rose, 206 N.J. 141, 179 (2011); see also State v.
Sheppard, 437 N.J. Super. 171, 193 (App. Div. 2014) (holding that
19 A-1014-14T3
if the evidence is intrinsic, "N.J.R.E. 404(b) does not apply
because the evidence does not involve some other crime, but instead
pertains to the charged crime").
As the Court acknowledged, the term "intrinsic" is not easy
to define with precision. Rose, supra, 206 N.J. at 178. To
address this difficulty, the Court adopted the test articulated
in United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010),
limiting intrinsic evidence to two narrow categories of evidence.
Id. at 180. The first category applies to evidence that "directly
proves" the charged offense. Ibid. The operative factor is
whether the evidence has probative value as to the charged offense.
The Court explained that "[t]his gives effect to Rule 404(b)'s
applicability only to evidence of 'other crimes, wrongs, or acts.'
If uncharged misconduct directly proves the charged offense, it
is not evidence of some 'other' crime." Ibid. (quoting Green,
supra, 617 F.3d at 248-49). The Court adopted Green's definition
of the second category of intrinsic evidence, stating that
"uncharged acts performed contemporaneously with the charged crime
may be termed intrinsic if they facilitate the commission of the
charged crime." Ibid. (quoting Green, supra, 617 F.3d at 249).
Evidence of defendant's conduct with the gun at Everett's
home was intrinsic evidence because it directly proved the charged
crimes. Defendant removed the gun from Everett's backyard and
20 A-1014-14T3
later returned to Everett's home with it and discharged it on the
back roof. Defendant and Aron discussed robbing the weed man
using the gun, they left Everett's home with the gun, and the day
after the homicide defendant told Everett "they got rid of the
gun." Further, Everett described the gun as a "revolver" and
"shell catcher," which was consistent with the testimony of the
State's expert that the .38 caliber bullet recovered from Wiggins'
body could have been fired from a revolver, and with evidence that
no shell casings were found at the scene.
The evidence in this case indicates the gun defendant
possessed and discharged mere hours before the robbery and homicide
was the same gun used by his co-conspirators to commit those crimes
and supports the inference that defendant allowed use of the gun
to promote the conspiracy. Therefore, the evidence was admissible
as intrinsic evidence because it directly proved defendant was
part of the conspiracy.
There is no merit in defendant's claim that he was prejudiced
by admission of evidence that he "smoked weed." Defendant did not
object to this evidence or request a curative or limiting
instruction, and he twice referred to it during summation.2
Moreover, this evidence was material to facts at issue in
2
Defendant appeared pro se at trial and was assisted by standby
counsel.
21 A-1014-14T3
determining defendant's guilt on the charged offenses, indicating
that he knew Wiggins and supplied the catalyst for the formation
of the robbery plan. We conclude that the complained-of error did
not rise to the level of plain error.
IV.
Everett's redacted videotaped statement was played to the
jury during Baldwin's testimony; certain portions were played
during the prosecutor's summation; and the video was re-played to
the jury in defendant's presence during deliberations in response
to a jury question. After the jury resumed deliberations,
defendant lodged a hearsay objection to the following statements:
BALDWIN: What did he tell you? Take your
time. I need you to think, man. Just be
truthful with us.
EVERETT: I’m being truthful with you.
BALDWIN: Yeah, no, the story—the story is
correct. I mean, the story adds up,
corroborated with the . . . other information
we've learned from other people we've talked
to, so I know you’re being truthful with us.
Just take your time and think about exactly
what he said to you.
As the interview concluded, the detectives said the following to
Everett and his mother:
BALDWIN: [Everett] witnessed things that led
up to the homicide.
22 A-1014-14T3
DETECTIVE NELSON: And the information that
he's given, we've heard it one, two, three
times before, so it's like—
BALDWIN: Just wanted him to be truthful with
us and I'm glad, and I thank you for bringing
him down. I'm glad you're being truthful with
us. We know—we knew the story.
EVERETT: I wish I told you earlier.
The judge overruled the objection and denied defendant's request
for a limiting instruction.
Defendant contends in Point III of his initial brief that
these portions of Everett's videotaped statement constituted
inadmissible hearsay prohibited by State v. Bankston, 63 N.J. 263(1973). Defendant also contends the judge erred in failing to
issue a limiting instruction on the limited use of this evidence,
and his confrontation rights were violated.
Defendant's untimely objection does not alter the standard
of review from one for plain error. See R. 1:7-2 (requiring
objection "at the time the ruling or order is made or sought");
State v. Weston, 222 N.J. 277, 294 n. 5 (2015); Pressler &
Verniero, Current N.J. Court Rules, comment 2 on R. 1:7-2 (2017)
(noting the need to provide the court with a basis of complaint
to permit an opportunity to respond). The question therefore is
whether the detectives' remarks prejudiced a substantial right of
defendant and therefore were capable of producing an unjust result.
23 A-1014-14T3
State v. Douglas, 204 N.J. Super. 265, 272-73 (App. Div.), certif.
denied, 102 N.J. 378 (1985). We conclude they did not.
In Bankston, the Court concluded that both the Confrontation
Clause and the hearsay rule are violated when, at trial, a police
officer conveys, directly or by inference, information from a non-
testifying declarant to incriminate the defendant in the crime
charged. 63 N.J. at 268-69. To protect the defendant from the
confrontation problems associated with such evidence, restrictions
have been placed on Bankston-type testimony. An officer may
explain the reason he approached a suspect or went to a crime
scene by stating he did so "upon information received," Banskton,
supra, 63 N.J. at 268, but the officer may not become more specific
by repeating details of the crime, or implying he received evidence
of the defendant's guilt, as related by a non-testifying witness.
State v. Luna, 193 N.J. 202, 216-17 (2007).
The Court affirmed and reinforced the Bankston rule in State
v. Branch, 182 N.J. 338 (2005). In Branch, an officer testified
he had included the defendant's photograph in an array "because
he had developed defendant as a suspect 'based on information
received.'" Id. at 342. The Court determined the officer's
testimony was inadmissible hearsay, engendering a jury that "was
left to speculate that the detective had superior knowledge through
hearsay information implicating defendant in the crime." Id. at
24 A-1014-14T3
348. The Court noted "[b]ecause the [informant] . . . was not
called as a witness, the jury never learned the basis of [the
informant's] knowledge regarding defendant's guilt, whether he was
a credible source, or whether he had a peculiar interest in the
case." Ibid. The Court emphasized that the introduction of this
"gratuitous hearsay testimony violated defendant's federal and
state rights to confrontation as well as our rules of evidence."
Ibid. The Court concluded by finding the violation sufficiently
prejudicial, warranting reversal as plain error. Id. at 354.
The present case is distinguishable from Bankston. The
complained-of statements came from a videotaped statement, not
live testimony. Defendant had the videotaped statement in his
possession well before trial, and also had the opportunity to
request redactions. Before the videotape was played to the jury,
defendant had the opportunity to view the proposed redactions, and
he accepted them. The hearsay rule does not apply to facts agreed
to by the parties. State v. Neal, 361 N.J. Super. 522, 534 (App.
Div. 2003) (citing N.J.R.E. 101(a)(4)). Accordingly, the judge
properly rejected defendant's untimely hearsay challenge. See
State v. Lanzo, 44 N.J. 560, 566 (1965) (noting that "the defendant
is in no position to urge prejudicial error" where he was afforded
the opportunity and declined to propose redactions to an admissible
statement).
25 A-1014-14T3
In addition, there was no plain error as to the lack of a
limiting instruction. Examining plain error in the Bankston
context, hearsay testimony is prejudicial to the defendant when
the State's case is tenuous. However, "when a case is fortified
by substantial credible evidence—for example, direct
identification of the defendant—the testimony is not likely to be
prejudicial under the 'plain error' rule." State v. Irving, 114
N.J. 427, 448 (1989). While Everett's videotaped statement was
undoubtedly the key to proving defendant's guilt, its reliability
was established through independent evidence, nullifying any
perceived Bankston prejudice.
Specifically, Smith testified that he and Wiggins drove by
Everett's home in Neptune and Wiggins waved to Aron, corroborating
Everett's statement that defendant's co-conspirator was at his
home and saw Wiggins. Police Officer Marques Alston corroborated
Everett's statement that a person fleeing the fight ran through
his backyard and discarded a gun. Aron's cellphone records
indicating that a call was made to Wiggins from the Neptune area
immediately before the robbery corroborated Everett's statement
that defendant and Aron talked about going to Wiggins' home. The
ballistics report, noting both the absence of a shell casing on
scene and that Wiggins was likely murdered with a revolver, was
26 A-1014-14T3
consistent with Everett's statement that defendant had possession
of and discharged a revolver.
The text message mentioning defendant and the police
investigation established the co-conspirators' contact and
collaboration with each other after the robbery and corroborated
Everett's account of defendant's identification of the
participants in the robbery. Finally, the physical evidence
collected from the nearby parking lot containing Tahj's DNA and
the hat and gloves discovered on Grant Avenue containing
defendant's DNA supported Everett's explanation of the robbery.
Accordingly, there was no plain error in the admission of the
detectives' statements and the judge's failure to proffer a
limiting instruction.
V.
Defendant contends for the first time on appeal in Point IV
of his initial brief that Baldwin's testimony opining on Everett's
credibility and defendant's guilt was improper and deprived him
of a fair trial. Defendant relies on Baldwin's testimony on direct
examination that he "did [not] believe Everett was involved in the
death of . . . Wiggins."
Defendant also relies on Baldwin's testimony that Everett
"was reluctant, it took him a year to be truthful about
[defendant's] involvement in this homicide, so I didn't want any
27 A-1014-14T3
harm to come to him." However, because this testimony occurred
on cross-examination, it constituted invited error. Under the
invited error doctrine, trial errors that "were induced,
encouraged or acquiesced in or consented to by defense counsel
ordinarily are not a basis for reversal on appeal[.]" State v.
A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J.
339, 345 (1987)). "In other words, if a party has 'invited' the
error, he is barred from raising an objection for the first time
on appeal." Ibid. (citation omitted.) Thus, we focus on Baldwin's
direct testimony that he did not believe Everett was involved in
the homicide.
"[O]ne witness cannot vouch for the truth of another witness's
testimony." See State v. Lazo, 209 N.J. 9, 24 (2012). A witness
is not permitted to vouch for the testimonial account of another
witness "because the ultimate determination of a witness's
credibility falls within the exclusive domain of the jury." R.B.,
supra, 183 N.J. at 337.
Baldwin's testimony did not constitute improper vouching.
There was no evidence whatsoever suggesting that Everett was
involved in the crimes. Thus, Baldwin's testimony that he did not
believe Everett was involved in Wiggins' death caused no error,
let alone plain error. Baldwin's direct testimony did not
28 A-1014-14T3
prejudice defendant, as Baldwin did not comment on defendant's
truthfulness, guilt, or innocence, or Everett's credibility.
VI.
Defendant challenges the jury charge on accomplice liability
for the first time on appeal in Point V of his initial brief. He
argues that because the jury was charged on robbery as a lesser-
included offense of armed robbery, the judge erred in charging
Model Jury Charge (Criminal), "Liability for Another's Conduct"
(N.J.S.A. 2C:2-6) (1995) Charge #1 - Where defendant is charged
as accomplice and jury does not receive instruction on lesser
included charges (Charge #1). Defendant argues the judge should
have charged Model Jury Charge (Criminal), "Liability for
Another's Conduct" (N.J.S.A. 2C:2-6) (1995) Charge #2 - "Where
defendant is charged as accomplice and jury is instructed as to
lesser included charges" (Charge #2).
At the charge conference, defendant requested an accomplice
liability charge to address the lesser-included offense of
"accessory after the fact." Defendant never requested Charge #2.
In denying the request, the judge explained that complicity was a
theory of liability, not a charge itself, and therefore "accessory
after the fact" could not be a lesser-included offense of the
accomplice liability theory. Defendant subsequently approved all
the jury charges given in this case.
29 A-1014-14T3
"Appropriate and proper jury charges are essential for a fair
trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State
v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court must give
'a comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts
that the jury may find.'" Id. at 159 (quoting State v. Green, 86
N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent
duty . . . to ensure that the jurors receive accurate instructions
on the law as it pertains to the facts and issues of each case,
irrespective of the particular language suggested by either
party." Ibid. (quoting Reddish, supra, 181 N.J. 613). "Because
proper jury instructions are essential to a fair trial, 'erroneous
instructions on material points are presumed to' possess the
capacity to unfairly prejudice the defendant." Ibid. (quoting
State v. Bunch, 180 N.J. 534, 541-42 (2004)).
When a defendant fails to object to an error regarding jury
charges, we review for plain error. State v. Funderburg, 225 N.J.
66, 79 (2016). "Under that standard, we disregard any alleged
error [in the charge] 'unless it is of such a nature as to have
been clearly capable of an unjust result.'" Ibid. (quoting R.
2:10-2). "The mere possibility of an unjust result is not enough.
To warrant reversal . . . an error [in the charge] must be
sufficient to raise 'reasonable doubt . . . as to whether the
30 A-1014-14T3
error led the jury to a result it otherwise might not have
reached.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361
(2004)).
"When a defendant might be convicted as an accomplice, the
trial court must give clear, understandable jury instructions
regarding accomplice liability." State v. Walton, 368 N.J. Super.
298, 306 (App. Div. 2004). "[A] principal and accomplice, although
perhaps guilty for the same guilty act, may have acted with
different or lesser mental states, thus giving rise to different
levels of criminal liability." State v. Latney, 415 N.J. Super.
169, 174 (App. Div. 2010) (quoting State v. Ingram, 196 N.J. 23,
41 (2008)). "[W]hen an alleged accomplice is charged with a
different degree offense than the principal or lesser included
offenses are submitted to the jury," the court must carefully
impart to the jury the distinctions between the specific intent
required for the offense. State v. Bielkiewicz, 267 N.J. Super.
520, 528 (App. Div. 1993).
We have extended Bielkiewicz to cases involving robbery.
Where the jury is instructed on both accomplice liability and the
lesser-included offense of robbery, the jury must be told that "an
accomplice who does not have a shared purpose 'to commit a robbery
with a weapon' is guilty of robbery—not armed robbery." State v.
Whitaker, 200 N.J. 444, 459 (2009) (quoting State v. Weeks, 107
31 A-1014-14T3
N.J. 396, 405 (1987)). Thus, the judge here should have
"additionally charged the jury according to Bielkiewicz's
mandate." Ingram, supra, 196 N.J. at 41.
However, the error was not sufficient to raise reasonable
doubt as to whether it led the jury to a result it otherwise might
not have reached. In Ingram, the trial court did not properly
instruct the jury under Bielkiewicz that the defendants alleged
to be accomplices to a robbery could be found guilty of the lesser-
included offense of theft. Ingram, supra, 196 N.J. at 36-37.
Nonetheless, our Supreme Court reinstated the robbery convictions,
holding as follows:
[W]here the indictment substantively charged
the defendant with both the greater and
lesser-included offenses, and the trial court
properly instructed the jury in respect of
each, the evil Bielkiewicz seeks to guard
against—that is, that the jury could have
found that one or more of the defendants were
guilty of robbery while also finding that one
or more of the defendants were guilty only of
the lesser-included offense of theft—does not
pose the same risk. We therefore conclude
that it was not reversible error when the
trial court instructed the jury on the
elements of the offenses of robbery and theft,
together with the elements required for
accomplice liability, without also
specifically charging that [o]ur law
recognizes that two or more persons may
participate in the commission of an offense
but each may participate therein with a
different state of mind" and that [t]he
liability or responsibility of each
participant for any ensuing offense is
32 A-1014-14T3
dependent on his/her own state of mind and not
on anyone else's.
[Id. at 40 (quoting Charge #2).]
Here, defendant asserts that even if he participated in the
robbery, he could have been unarmed and unaware that his co-
defendants were armed. He avers that the judge's accomplice
liability charge failed to differentiate between second-degree
robbery and first-degree robbery, where an actor "is armed with,
or uses or threatens the immediate use of a deadly weapon."
N.J.S.A. 2C:15-1(b). However, applying the Ingram principles,
defendant has failed to show prejudice. The judge properly
instructed the jury on first- and second-degree robbery. Moreover,
although the indictment only charged defendant with first-degree
robbery, the verdict sheet gave the jury the option of convicting
him of either first- or second-degree robbery. Thus, the
Bielkiewicz error here "was not reversible error." Ingram, supra,196 N.J. at 40.
Other factors support this conclusion. Defendant was not
tried with his co-defendants. While "[t]he fact defendant was
tried alone is not dispositive," State v. Franklin, 377 N.J. Super.
48, 57 (App. Div. 2005), that fact makes it a more "remote
possibility that [the jurors] were distracted from their task by
a conclusion that the principal had possessed a more culpable
intent than the accomplice." State v. Norman, 151 N.J. 5, 39
33 A-1014-14T3
(1997). In addition, defendant maintained through this matter
that he was not involved at all in the robbery. While this does
not "eliminate[] the possibility that a faulty accomplice
liability charge could have prejudiced him," State v. Cook, 300
N.J. Super. 476, 488 (App. Div. 1996), it does reduce the
likelihood. Where "a defendant argues that he was not involved
in the crime at all," that helps to show the "defendant suffered
no prejudice" from a failure to instruct the jury on accomplice
liability under Bielkiewicz. State v. Maloney, 216 N.J. 91, 105-
06, 109-10 (2013). As we have held:
Even if the judge should have instructed the
jury that it could convict defendant of the
lesser included offense of second degree
robbery as [an] accomplice if it found that
defendant's purpose was only to participate
in the robbery, and not to commit armed
robbery, the failure to give a Bielkiewicz
charge is not plain error . . . [if] there was
no evidence presented that the principal may
have acted with a different purpose than the
accomplice.
[State v. Oliver, 316 N.J. Super. 592, 597
(App. Div. 1998), aff'd, 162 N.J. 580 (2000).]
Considering the totality of the circumstances, including the
entirety of the jury charges, the strength of the State's case,
the nature of the defense, and the verdict sheet, we conclude that
defendant failed to show the omission of the Bielkiewicz language
from the accomplice liability charge was not "clearly capable of
34 A-1014-14T3
producing an unjust result." R. 2:10-2. The absence of prejudice
is confirmed by defendant's failure to request a Bielkiewicz charge
or object to the charge given.
VII.
Relying on State v. Gonzalez, 444 N.J. Super. 62 (App. Div.),
certif. denied, 226 N.J. 209 (2016), defendant contends for the
first time on appeal in Point IV of his pro se supplemental brief
that the use of the phrase "and/or" in the jury charges for first-
and second-degree robbery, accomplice liability, and felony murder
rendered the charges impermissibly ambiguous, generating
uncertainty that the jury was unanimous in finding the elements
of these crimes. We disagree.
In Gonzalez, the defendant was charged as a co-conspirator
and accomplice with robbery and three counts of aggravated assault.
444 N.J. Super. at 73. We found error in the jury charge on
conspiracy and accomplice liability because the charge referred
to "robbery and/or aggravated assault" when referring to the
substantive crimes the co-defendants were alleged to have
committed for which the defendant was to be considered accountable.
Id. at 73-75. We explained the critical flaw in the charge as
follows:
[T]he nature of the indictment required that
the jury decide whether defendant conspired
in or was an accomplice in the commission of
35 A-1014-14T3
a robbery, or an aggravated assault, or both.
By joining (or disjoining) those
considerations with "and/or" the judge
conveyed to the jury that it could find
defendant guilty of either substantive offense
— which is accurate — but left open the
possibility that some jurors could have found
defendant conspired in or was an accomplice
in the robbery but not the assault, while
other jurors could have found he conspired in
or was an accomplice in the assault but not
the robbery. In short, these instructions did
not necessarily require that the jury
unanimously conclude that defendant conspired
to commit or was an accomplice in the same
crime. Such a verdict cannot stand.
The jury was also told that "to find the
defendant guilty of committing the crimes of
robbery and/or aggravated assault charges, the
State must prove [among other things] that the
co-defendant] committed the crimes of robbery
and/or aggravated assault." Assuming the
"and/or" in this instruction was interpreted
as being a disjunctive, it is entirely
possible the jury could have convicted
defendant of both robbery and aggravated
assault even if it found [the co-defendant]
committed only one of those offenses, i.e.,
the jury was authorized, if it interpreted
"and/or" in this instance as "or," to find
defendant guilty of robbery because it was
satisfied the State proved that [the co-
defendant] committed an aggravated assault.
[Id. at 75-77 (citations omitted).]
The phrase "and/or" is used repeatedly in Charge #1. The
judge's accomplice liability charge mirrored Charge #1 as follows,
in pertinent part:
So now I'm going to talk to you about
accomplice liability. Now this is liability
36 A-1014-14T3
for another's conduct. It's called accomplice
liability.
The State alleges that the defendant
. . . is legally responsible for the criminal
conduct of co-defendants Kenneth Bacon-
Vaughters, Aron Pines and/or Tahj Pines in
violation of the law which reads in pertinent
part as follows:
A person is guilty of an offense if
. . . it is committed by his own conduct or
the conduct of another person for which he is
legally accountable, or both.
A person is legally accountable for the
conduct of another person when he is an
accomplice of such other person in the
commission of an offense. A person is an
accomplice of another person in the commission
of an offense if, with the purpose of
promoting or facilitating the commission of
the offense he, A, solicits such other persons
to commit it and/or B, aids or agrees or
attempts to aid such other persons in planning
or committing it. This provision of the law
means that not only is the person who actually
commits the criminal act responsible for it,
but one who is legally accountable as an
accomplice is also responsible.
Now, this responsibility as an accomplice
may be equal and the same as he who actually
committed the crimes or there may be
responsibility in a different degree,
depending on the circumstances as you find
them to be. I will further explain this
distinction in a moment.
In this case, the State alleges that the
defendant . . . is equally guilty of the crimes
committed by co-defendants Kenneth Bacon-
Vaughters, Aron Pines and Tahj Pines, because
he acted as their accomplice with the purpose
that the specific crimes charged be committed.
37 A-1014-14T3
In order to find the defendant . . .
guilty of the specific crimes charged, the
State must prove beyond a reasonable doubt
each of the following elements:
That co-defendants Kenneth Bacon-
Vaughters, Aron Pines and/or Tahj Pines
committed the crimes of armed robbery,
robbery, felony murder or possession of a
firearm for an unlawful purpose; that the
defendant . . . solicited the co-defendants
Kenneth Bacon-Vaughters, Aron Pines and/or
Tahj Pines to commit and/or did aid or agree
or attempt to aid them in planning or
committing the crimes; three, that the
defendant['s] . . . purpose was to promote or
facilitate the commission of the aforesaid
crimes; and four, the defendant . . .
possessed the criminal state of mind that is
required to be proved against the person who
actually committed the criminal act.
Remember that one acts purposely with
respect to his conduct or a result thereof,
if it is his conscious object to engage in
conduct of the nature or to cause such a
result.
. . . .
If you find that defendant . . . with the
purpose of promoting or facilitating the
commission of the crimes solicited co-
defendant Kenneth Bacon-Vaughters, Aron Pines
and/or Tahj Pines to commit them, or aided,
or agreed or attempted to aid them in planning
or committing them, then you should consider
[defendant] as if he committed the crimes.
In this case, accomplice liability status
should be considered separately for the crimes
of armed robbery, robbery, felony murder, and
possession of a . . . firearm for [an] unlawful
purpose.
38 A-1014-14T3
. . . .
An accomplice may be convicted of proof
of the commission of a crime or of his
complicity therein, even though the person who
is claimed [to have] committed the crime has
not been prosecuted or has been convicted of
a different offense or degree of offense, or
has immunity from prosecution or conviction
or has been acquitted.
. . . .
In order to convict the defendant as an
accomplice to the crimes charged, you must
find the defendant . . . had the purpose to
participate in that particular crime. He must
act with the purpose of promoting or
facilitating the commission of the substantive
crimes with which he is charged. It is not
sufficient to prove only that the defendant
. . . had knowledge that other person or
persons were going to commit the crimes
charged. The State must prove that it was
defendant['s] . . . conscious object that
. . . the specific conduct charged be
committed.
In sum, in order to find the defendant
. . . guilty of the crime of accomplice to
commit armed robbery, robbery, felony murder.
possession of a . . . firearm for [an] unlawful
purpose, the State must prove each of the
following elements beyond a reasonable doubt:
That co-defendant Kenneth Bacon
Vaughters, Aron Pines and Tahj Pines committed
the crimes of armed robbery, robbery, felony
murder and possession of [a] firearm for [an]
unlawful purpose; that defendant solicited
. . . them . . . to commit them and/or did aid
or agree or attempt to aid the co-defendants
Kenneth Bacon-Vaughters, Aron Pines and/or
Tahj Pines in planning or committing [the]
crimes; three, defendant['s] . . . purpose was
39 A-1014-14T3
to promote or facilitate the commission of the
crimes, meaning armed robbery, robbery, felony
murder or possession of [a] firearm for [an]
unlawful purpose; and four, that defendant
. . . possessed the criminal state of mind
that is required to be proved against the
person who actually committed the criminal
acts.
I remind you again as to the charges of
armed robbery, robbery, felony murder and
possession of [a] weapon for [an] unlawful
purpose to consider the accomplice charge
separately.
. . . .
As I previously instructed, any verdict
rendered must be unanimous, meaning all
[twelve] jurors must agree as to the finding
of guilty or not guilty.
[(Emphasis added).]
Unlike Gonzalez, the charge here did not connect the
substantive crimes of defendant's co-defendants with "and/or."
Rather, the jury was charged that to find defendant guilty as an
accomplice, the State must prove: (1) the co-defendants committed
the crimes of armed robbery, robbery, felony murder or possession
of a firearm for an unlawful purpose; (2) defendant's purpose was
to promote or facilitate the commission of the crimes; and (3)
defendant possessed the criminal state of mind required to be
proved against the person who actually committed the crimes. The
charge adequately instructed the jury that it should consider
defendant's accomplice liability status separately for the crimes
40 A-1014-14T3
of armed robbery, robbery, felony murder, and possession of a
weapon for an unlawful purpose, and determine whether defendant
had the purpose to participate in that particular crime. We
discern no plain error in use of the phrase "and/or" in the
accomplice liability charge.
We also discern no plain error in use of the phrase "and/or"
in the first- and second-degree jury charges. The judge charged
the jury on first- and second- degree robbery as follows, in
pertinent part:
A section of our statute provides that
robbery is a crime of the second degree,
except that armed robbery is a crime of the
first degree if the actor, A, purposely
attempted to kill anyone and/or B, purposely
inflicted or attempted to inflict bodily
injury and/or C, was armed with or threatened
the immediate use of a deadly weapon.
. . . .
[I]f you find the State has proven beyond a
reasonable doubt that the defendant . . .
committed the crime of robbery as I have
defined that crime to you, but if you also
find the State has failed to prove beyond a
reasonable doubt as to whether, A, defendant
purposely attempted to kill Nathaniel Wiggins
and/or B, defendant purposely inflicted or
attempted to inflict serious bodily injury
upon Nathaniel Wiggins
and/or C, defendant was armed with, or used
or threatened immediate use of a deadly weapon
at the time of commission of the robbery, then
you must find the defendant . . . guilty of
robbery in the second degree.
41 A-1014-14T3
If you find the State has proven beyond
a reasonable doubt that defendant, while in
the course of committing a theft, A, purposely
attempted to kill Nathaniel Wiggins and/or B,
purposely inflicted or attempted to inflict
serious bodily injury upon Nathaniel Wiggins
and/or C, was armed with, or used or
threatened the immediate use of a deadly
weapon, then you must find the defendant
. . . guilty of robbery in the first degree.
[(Emphasis added).]
Defendant argues that the charge was impermissibly ambiguous,
generating uncertainty the jury was unanimous in finding the
elements of these two crimes.
A unanimity instruction requires unanimous agreement as to
each element of the offense. State v. Gentry, 183 N.J. 30, 33
(2005). Ordinarily, a general jury instruction requiring
unanimity suffices in directing the jury that it must unanimously
agree on the specific predicate of a guilty verdict. State v.
Cagno, 211 N.J. 488, 516-17 (2012). Here, the judge instructed
the jury on unanimity as follows:
The verdict must represent the considered
judgment of each juror and must be unanimous
as to each charge. This means all of you must
agree if the defendant is guilty or not guilty
on each charge.
. . . .
Now, I'll talk to you just again about
unanimous verdict. I've mentioned that a few
times. You may return on each crime charged
a verdict of either not guilty or guilty. Your
42 A-1014-14T3
verdict, whatever it may be as to each crime
charged, must be unanimous. Each of the
twelve members of the deliberating jury must
agree as to the verdict.
In some circumstances, a general charge of unanimity creates
the possibility of jury confusion or that a conviction may occur
as a result of different jurors concluding the defendant committed
conceptually different acts. State v. Parker, 124 N.J. 628, 641
(1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed.
2d 625 (1992). In those circumstances, where danger of a
fragmented verdict exists, a specific unanimity instruction is
required. Id. at 641-42. These circumstances include:
where (1) a single crime could be proven by
different theories supported by different
evidence, and there is a reasonable likelihood
that all jurors will not unanimously agree
that the defendant's guilt was proven by the
same theory; (2) the underlying facts are very
complex; (3) the allegations of one count are
either contradictory or marginally related to
each other; (4) the indictment and proof at
trial varies; or (5) there is strong evidence
of jury confusion.
[Cagno, supra, 211 N.J. at 517 (citation
omitted).]
A specific unanimity charge was not necessary as none of
these circumstances existed in this case. The State proceeded on
a single factual and legal theory of defendant's guilt. The
underlying facts to support either element A (defendant purposely
attempted to kill Wiggins), or B (defendant purposely inflicted
43 A-1014-14T3
or attempted to inflict serious bodily injury upon Wiggins),3 were
not very complex, and the allegations of the counts constituted
parts of a single unified theory. Further, there was no evidence
of jury confusion. The judge instructed the jury as to what
evidence to consider when deliberating each charge, and the jury
never sought clarification or expressed uncertainty regarding the
execution of its fact-finding duties. See State v. Gandhi, 201
N.J. 161, 193-94 (2008).
Despite the judge's use of the phrase "and/or," the charge
required the jury to unanimously determine whether defendant
purposely attempted to kill Wiggins or purposely inflicted or
attempted to inflict serious bodily on Wiggins. Thus, the jury
could find defendant intended to inflict serious bodily injury on
Wiggins, which is a component of an attempt to kill, or that
defendant attempted to kill Wiggins. Both distill into a unanimous
jury verdict.
Lastly, the judge instructed on felony murder in pertinent
part as follows:
Criminal homicide constitutes murder
when it is committed when the actor, either
acting alone or with one or more other
persons, is engaged in the commission of or
3
There was no evidence to support a finding on element C
(defendant was armed with, or used or threatened the immediate use
of a deadly weapon), which eliminates any possibility of a less-
than-unanimous jury finding.
44 A-1014-14T3
attempt to commit or flight after committing
or attempting to commit armed robbery and/or
robbery, and in the course of such crime or
the immediate flight therefrom, any person
causes the death of a person other than one
of the participants.
[(Emphasis added).
Use of the phrase "and/or" in the charge was not plain error
because unanimity was not required on the issue of whether
defendant's predicate felony was robbery or armed robbery.
N.J.S.A. 2C:11-3(a)(3) provides that "criminal homicide
constitutes murder when . . . [i]t is committed when the actor,
acting either alone or with one or more other persons, is engaged
in the commission of, or an attempt to commit, or flight after
committing or attempting to commit robbery[.]" Because robbery
is a lesser-included offense of armed robbery, a jury concluding
beyond a reasonable doubt that the defendant was guilty of armed
robbery necessarily also found him guilty of robbery. Here, the
jury unanimously found defendant guilty of armed robbery. Thus,
regardless of the use of the phrase "and/or" in the charge, the
jury here necessarily found defendant guilty of robbery, a
qualifying predicate felony for felony murder.
VIII.
Defendant contends in Point VII of his initial brief that his
forty-year sentence is excessive. He argues he had no prior
45 A-1014-14T3
record, was seventeen years old at the time of the homicide, was
not the shooter, and the shooter received a forty-year sentence.
Defendant also argues that State v. Zuber, 227 N.J. 422 (2017)
compels a remand for re-sentencing because he was a juvenile at
the time of the murder.4
At sentencing, the judge found aggravating factor N.J.S.A.
2C:44-1(a)(3), "[t]he risk that the defendant will commit another
offense," based on defendant's pending weapons and possession
charges. The judge also found aggravating factor N.J.S.A. 2C:44-
1(a)(9), "[t]he need for deterring the defendant and others from
violating the law," emphasizing the national epidemic of gun
violence in general, and the pervasive problem of gun violence in
Asbury Park and Neptune specifically.
The judge found mitigating factor N.J.S.A. 2C:44-1(b)(11),
that defendant's imprisonment would entail excessive hardship to
himself and his young son. The judge also considered defendant's
age at the time of the offense and mental health issues. The
judge concluded the aggravating factors substantially outweigh the
single mitigating factor.
Our review of a sentence is limited. State v. Miller, 205
N.J. 109, 127 (2011). Our basic responsibility is to assure that
4
The Court decided Zuber after defendant's sentencing.
46 A-1014-14T3
the aggravating and mitigating factors found by the sentencing
judge are supported by competent, credible evidence in the record.
Ibid. As directed by the Court, we must 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)
(quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
We review a judge's sentencing decision under an abuse of
discretion standard. Ibid.We discern no abuse of discretion in defendant's sentence.
The judge did not violate the sentencing guidelines, and the record
amply supports his findings on aggravating and mitigating factors.
The sentence is clearly reasonable and does not shock our judicial
conscience.
Further, Zuber is inapplicable. In Zuber, the court sentenced
the juvenile defendant to an aggregate 110-year sentence with
fifty-five years of parole ineligibility. 227 N.J. at 428. The
Court extended the United States Supreme Court's decision in Miller
v. Alabama, 576 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)
to juvenile offenders who were subject to life-without-parole
47 A-1014-14T3
sentencing, sentenced to "the practical equivalent of life without
parole," and subject to "multiple term-of-years sentences that,
in all likelihood, will keep him in jail for the rest of his life."
Id. at 446, 448. In this case, defendant received a forty-year
sentence with a thirty-four-year parole bar, and will be eligible
for parole at the age of fifty-three. Unlike in Zuber, defendant's
sentence is not a life sentence or its practical equivalent.
Affirmed.
48 A-1014-14T3