STATE OF NEW JERSEY VS. LAVARR NOWELL (15-12-0774, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5325-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAVARR NOWELL, a/k/a
LAVAR NOWELL, LAVARR
DAMON and LAVARR DAMONS,
Defendant-Appellant.
________________________________
Submitted December 11, 2019 – Decided December 18, 2019
Before Judges Haas and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 15-12-0774.
Joseph E. Krakora, Public Defender, attorney for
appellant (John Andrew Albright, Designated Counsel,
on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Milton Samuel Leibowitz,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
A Union County grand jury returned an indictment charging defendant
Lavarr Nowell with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or N.J.S.A.
2C:11-3(a)(2) (count one); second-degree possession of a handgun, N.J.S.A.
2C:39-5(b) (count two); and second-degree possession of a handgun for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). The indictment charged
co-defendant Julian Robinson with these same offenses in counts one, two, and
four, and with third-degree unlawful possession of a shotgun, N.J.S.A. 2C:39-
5(c), in count three.
Defendant and Robinson were tried together. Following a multi-day trial,
the jury convicted defendant of both weapons offenses, but was unable to reach
a verdict on the murder charge. The jury acquitted Robinson of all of the
charges.
Pursuant to the parties' subsequent plea agreement, the State amended
count one to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and
defendant pled guilty to this charge 1 in return for the State's agreement to
1
In his plea colloquy, defendant admitted intentionally shooting a handgun
multiple times at the victim with reckless disregard for the victim's life and that
the victim died as the result of his conduct.
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recommend that the judge sentence defendant to a twenty-year term for this
offense.
At sentencing, the judge merged count four into count one and imposed a
twenty-year term, subject to an eighty-five percent period of parole ineligibility,
and five years of parole supervision pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2. The judge sentenced defendant to a seven-year concurrent
term on count two, with forty-two months of parole ineligibility. Thus,
defendant received a twenty-year aggregate term. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
JADE GREENE'S AND OMAR HOLMES'
RECITATION OF [ROBINSON'S] CONFESSIONS
WERE INADMISSIBLE AGAINST DEFENDANT
UNDER N.J.R.E. 803(b)(1). CONSEQUENTLY, THE
JUDGE SHOULD HAVE BARRED THE
TESTIMONY OF GREEN AND HOLMES; THEIR
TESTIMONY AS TO [ROBINSON'S]
INCRIMINATING STATEMENTS COULD NOT BE
USED AGAINST DEFENDANT BECAUSE
DEFENDANT COULD NOT CROSS-EXAMINE
[ROBINSON].
POINT II
THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY THAT JADE GREENE'S AND OMAR
HOLMES' RECITATION OF [ROBINSON'S]
CONFESSIONS COULD NOT BE USED AGAINST
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DEFENDANT WAS PLAIN ERROR. (Not Raised
Below).
POINT III
THE TWENTY-YEAR SENTENCE IMPOSED WAS
MANIFESTLY EXCESSIVE AND AN ABUSE OF
THE [TRIAL] COURT'S DISCRETION.
After reviewing the record in light of these contentions, we affirm.
I.
The parties are fully familiar with the evidence presented at trial.
Therefore, we need only recite the most salient facts related to the issues raised
on appeal.
On December 3, 2013, two police officers responded to the scene of a
reported shooting, and found the victim, Dawud Hicks, lying on the ground, and
bleeding from his face, chest, and mouth. The medical examiner testified that
Hicks died from multiple gunshot wounds to his body and a shotgun wound to
his face. The police recovered shell casings near the body.
Two days later, a citizen found a handgun close to the scene. The gun was
hidden inside a pair of gloves that had been balled up like a pair of socks. A
ballistic expert testified that the shell casings found at the scene came from the
gun.
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A forensic DNA expert analyzed the gun, the gloves, and a swab taken
near the shell casings. The expert could not make any specific conclusions
concerning the gun because it contained DNA from at least two individuals.
However, the expert testified that the DNA recovered from one of the gloves
matched defendant's DNA profile. The expert also determined that the swab
contained saliva, which also matched defendant's DNA profile.
During the trial, the State presented the testimony of two witnesses
concerning statements Robinson made to them about his involvement in the
murder. Jade Greene, who was with the victim at the time of the shooting,
testified that a few weeks before the incident, Robinson told her, "I'm going to
get [Dawud Hicks] before he gets me." Another witness, Omar Holmes, testified
he told a detective that "Robinson told [him] that he shot Dawud Hicks."
II.
In Points I and II of his brief, defendant argues that the judge erred in
permitting the State to introduce the two statements proffered by Greene and
Holmes implicating Robinson, but not defendant, in the shooting. Defendant
also asserts for the first time on appeal that the judge mistakenly failed to
instruct the jury that it could not consider these statements against defendant .
These contentions lack merit.
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Contrary to defendant's assertions, neither of the statements constituted
impermissible hearsay. The judge correctly concluded that because the
statements were offered by the State against Robinson, an opposing party in this
joint trial, and were made by Robinson in his individual capacity, they were
admissible under the exception to the hearsay rule set forth in N.J.R.E.
803(b)(1).
Defendant next argues that even if the statements fell within this
recognized hearsay exception, the introduction of this evidence violated the
Confrontation Clause. We disagree.
It is fundamental that if a co-defendant does not testify at joint trial, those
portions of the co-defendant's admissions that implicate a defendant are not
admissible. Bruton v. United States, 391 U.S. 123, 132 (1968); State v. Weaver,
219 N.J. 131, 153 (2014). This is so because there is an unacceptably high risk
of prejudice to a defendant "where the powerfully incriminating extrajudicial
statements of a codefendant, who stands accused side-by-side with the
defendant, are deliberately spread before the jury in a joint trial." Bruton, 391
U.S. at 135-36. Thus, if a co-defendant's incriminatory statement directly refers
to the defendant, the statement is inadmissible under Bruton. Weaver, 219 N.J.
at 154 (citing Gray v. Maryland, 523 U.S. 185, 196 (1998)).
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However, our Supreme Court has recognized that a defendant's right to
confrontation is not violated if the statement concerning the co-defendant is "not
incriminating on its face" to the defendant. Id. at 153 (quoting Richardson v.
Marsh, 481 U.S. 200, 208 (1987)). That was the case here. Greene testified that
Robinson told her, "I'm going to get [Dawud Hicks] before he gets me," and
Holmes acknowledged making a statement to detectives that "[Robinson] told
[him] that he shot Dawud Hicks." Neither witness mentioned defendant in
recounting these statements and, indeed, the judge made sure there were no
references to defendant by conducting hearings to ascertain the nature of the
testimony the State planned to elicit from the witnesses before they testified to
the jury.
Thus, the judge properly admitted the two statements under Weaver.
Because the statements did not relate at all to defendant, the judge also did not
err by failing to sua sponte instruct the jurors that they should not consid er this
testimony against defendant. As noted, defendant did not object to the jury
charge. It is well established that "[i]f the defendant does not object to the
charge at the time it is given, there is a presumption that the charge was not error
and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J.
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157, 182 (2012). Because the testimony did not implicate defendant in any way,
there was no need for the judge to instruct the jury on that fact.
However, even if the judge should have given a special instruction as
defendant now belatedly insists, there would be no basis for reversing
defendant's convictions on the two weapons offenses. 2 It has been long
recognized that a Bruton violation can be harmless if there is overwhelming
evidence of guilt. See Schneble v. Florida, 405 U.S. 427, 430 (1972) (observing
that "[t]he mere finding of a violation of the Bruton rule . . . does not
automatically require reversal of the ensuing criminal conviction," where "the
properly admitted evidence of guilt is so overwhelming, and the prejudicial
effect of the codefendant's admission is so insignificant by comparison.").
Here, the DNA evidence from the gloves and saliva found at the scene
clearly tied defendant to the handgun used to kill the victim. Thus, even without
the testimony concerning Robinson's participation in the offense, there was
ample evidence in the record for the jury to convict defendant of the weapons
offenses. Therefore, we affirm defendant's convictions.
2
The jury only found defendant guilty of the weapons charges. It failed to
reach a verdict on the murder charge. Therefore, defendant had the right to a
new trial concerning that offense. However, he waived this right by admitting
his guilt in return for the State's recommendation to seek a twenty-year term of
imprisonment.
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III.
In Point III of his brief, defendant asserts that his sentence was excessive.
We disagree.
Trial judges have broad sentencing discretion as long as the sentence is
based on competent credible evidence and fits within the statutory framework.
State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider
"any relevant aggravating and mitigating factors" that "are called to the court's
attention" and "explain how they arrived at a particular sentence." State v. Case,
220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297
(2010)). "Appellate review of sentencing is deferential," and we therefore avoid
substituting our judgment for the judgment of the trial court. Id. at 65; State v.
O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating
and mitigating factors that were based on competent and reasonably credible
evidence in the record, and applied the correct sentencing guidelines enunciated
in the Code. Accordingly, we discern no basis to second-guess the sentence.
Affirmed.
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