STATE OF NEW JERSEY VS. NYJE JOHNSON STATE OF NEW JERSEY VS. JEAVONTE M. DENNIS (15-08-1070, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1139-17T4
A-1222-17T41
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NYJE JOHNSON,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEAVONTE M. DENNIS, a/k/a
JAMIL JEVONTE DENNIS,
Defendant-Appellant.
Submitted December 5, 2019 – Decided March 30, 2020
1
We consolidate the appeals for this opinion.
Before Judges Nugent, Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 15-08-1070.
Joseph E. Krakora, Public Defender, attorney for
appellant Nyje Johnson (Stefan Van Jura, Deputy
Public Defender, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Jeavonte Dennis (Frank M. Gennaro,
Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Robert John Wisse, Assistant
Prosecutor, of counsel and on the briefs).
PER CURIAM
Co-defendants, Jeavonte Dennis and Nyje Johnson, both black, appeal
from judgments of conviction entered after a jury convicted them of crimes
stemming from the shooting death of a young teenage girl and the wounding of
another, and a judge sentenced them to, respectively, aggregate prison terms of
forty-five and twenty-two years. The principal issue we must decide is whether
co-defendants are entitled to a new trial because the prosecutor exercised his
peremptory challenges to exclude the black potential jurors. 2 When the issue
2
For clarity, we refer only to Dennis and Johnson collectively as co-defendants.
Although others were indicted with Dennis and Johnson, only Dennis and
Johnson were prosecuted in the trial that is the subject of this appeal.
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arose during co-defendants' trial, the court determined co-defendants had carried
their initial burden of making a prima facie showing the prosecutor had
exercised his peremptory challenges on constitutionally-impermissible grounds.
The court further determined, however, that the prosecutor's proffered reasons
for excusing the jurors were race neutral, and co-defendants had failed to sustain
their ultimate burden of proving the prosecutor exercised his peremptory
challenges in an unconstitutional manner.
Although we conclude the trial court erred in its analysis, we need not
remand for an amplification of its decision because we also conclude the
prosecutor failed to carry his burden of rebutting co-defendants' prima facie case
by showing genuine and reasonable grounds for believing the prospective black
jurors he excused had individual or personal bias that would make excusing them
reasonable and desirable given the aim of empaneling a fair and impartial ju ry.
For this reason, we reverse and remand for a new trial.
I.
A.
In August 2015, a Bergen County grand jury returned a twenty-five-count
indictment against co-defendants, others who participated in the shooting, and
others who hindered the ensuing investigation. Co-defendants were charged
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with first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or (2)
(count one); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-
3(a) (count two); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:11-3(a) (count three); second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); and second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count nine).
Co-defendant Dennis was also charged with the third-degree crimes of
possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-
10(a)(1) (count fifteen); possession of a CDS, heroin, with intent to distribute,
N.J.S.A. 2C:35-5(b)(3) (count sixteen); possession of a CDS, heroin, with intent
to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count
seventeen); and second-degree possession of a CDS, heroin, with intent to
distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count
eighteen).
Following the indictment, co-defendants filed motions to suppress the
statements they had given to police. The court denied the motions.
The case proceeded to trial against co-defendants on the charges of
murder, attempted murder, conspiracy to commit murder, and the two weapons
offenses. The jury convicted Dennis on those counts. The jury acquitted
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Johnson of murder and attempted murder, but convicted him of aggravated
manslaughter, conspiracy to commit murder, and the weapons offenses.
Following the verdicts, Dennis entered a guilty plea to possession of CDS,
heroin, N.J.S.A. 2C:35-10(a)(1), which was amended to a disorderly persons
offense.
The trial court sentenced Dennis to a forty-five-year prison term subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one, murder.
On count two, attempted murder, the court imposed a concurrent twenty-five-
year prison term subject to NERA. The court merged the conspiracy and
weapons counts, three, eight, and nine. On the disorderly persons CDS offense,
the court imposed a concurrent six-month sentence. The court also imposed
appropriate penalties and assessments.
The trial court sentenced Johnson on the lesser-included offense of
aggravated manslaughter, count one, to a twenty-two-year prison term subject
to NERA. The court merged the conspiracy and weapons counts, three, eight,
and nine, and imposed appropriate penalties and assessments.
B.
Late on a September night in 2014, while fourteen-year-old Nazerah Bugg
and fifteen-year-old Nylijah Albert were talking to several friends in front of a
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"chicken" store on a Paterson street, the group was engulfed in a hail of gunfire.
One bullet tore through the left side of Nazerah's back and exited through the
upper right front of her chest. From the bullet's trajectory, the medical examiner
concluded Nazerah was either ducking or running when she was shot. She died
from the damage the bullet did to her heart.
Nylijah was also shot in the back. She was hospitalized for approximately
one month and underwent surgery but survived. The bullet could not be
removed from where it had lodged in her body.
Law enforcement officers recovered thirteen forty-caliber shell casings,
two nine-millimeter shell casings, projectiles, and projectile fragments from the
shooting scene. Two men had caught Nylijah's attention immediately before the
shooting started: a short, masked man dressed in dark clothing crossing the street
and walking toward her, and a taller man standing by a car a short distance away.
She initially thought she recognized the taller man, but later decided she was
mistaken. Homicide detectives developed the case the State presented at trial
through interviews and through the custodial interrogation of those involved,
including three statements the detectives took from co-defendant Dennis and
three statements they took from co-defendant Johnson.
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According to the State's proofs, the shooting was gang-related. The gangs
involved were the Up the Hill gang, whose territory was in Paterson on the south
side of the Passaic River, and a rival gang, Down the Hill, whose territory was
in Paterson on the north side of the Passaic River.3 Earlier in the day, a man
named Dion Eaton was shot in the chest as he and five other Up the Hill gang
members were leaving the back yard of one of their homes. Co-defendant
Johnson was one of the Up the Hill members.
Following the afternoon shooting of Dion, gang leaders Baseem Williams
and Shakeem Ricks met with other Up the Hill members, urged them to retaliate,
and armed them with handguns. Later that night, co-defendants, along with
Devonte Lewis and Quajeir Culbreath, rode in Tyheem Mayfield's black BMW
to the chicken store with the intention of shooting members of the Down the Hill
gang. Both co-defendants admitted possessing handguns and exiting the vehicle
near the chicken store with Lewis and Culbreath. Dennis told detectives he had
a 380-caliber revolver but claimed that he did not shoot it.
3
The testimony is not consistent as to whether co-defendants and their fellow
gang members involved in the shooting were members of the Up the Hill gang,
a gang known as Up Top, or a gang known as 230. Nor is the testimony
consistent as to whether Up Top and 230 were factions of Up the Hill or separate
gangs. Because the distinction is not material to the issues on this appeal, for
clarity we refer to Up the Hill to include Up the Hill, Up Top, 230, and their
members.
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According to Dennis, Lewis had both 40-caliber and nine-millimeter
handguns in his possession. Dennis claimed he was "creeping" down the street
to avoid detection just before the shooting occurred, but when Culbreath and
Lewis fired their weapons, he ran away. After the shooting, another Up the Hill
member collected the guns and threw them into the Passaic River.
Co-defendant Johnson told detectives during his first interview that he,
Lewis, and a few others were shot at earlier on the same day that Nazerah Bugg
and Nylijah Albert were shot. He also said there was a feud between the Up the
Hill gang and the Down the Hill gang.
During Johnson's second interview, he told detectives he and three others
were at the shooting scene. Williams had arrived in a black BMW driven by
Mayfield. Johnson admitted possessing a nine-millimeter handgun. He claimed,
however, he left before the girls were shot and returned to Lewis's house.
Johnson believed that Lewis shot Nazerah Bugg. Johnson signed photographs
identifying others involved in the shooting.
In his third interview, Johnson said he gave his gun to another gang
member after those involved in the shooting met at Lewis's house. The other
gang member disposed of the guns by throwing them into the river.
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The court permitted the State to read portions of a video-recorded
statement of a person named Mustahim Camel after Camel recanted at trial.
Camel said he told co-defendant Dennis that Dion did not really get shot, just
hit with "a little piece of bullet." Dennis responded, "like damn, he made us do
that shit to those girls[.]"
II.
A.
We begin our analysis with co-defendants' challenge to the prosecutor's
use of his peremptory challenges to strike the prospective black jurors. During
the first two and one-half days of jury selection, the court and counsel conducted
voir dire of three panels of prospective jurors. To qualify to serve on the jury,
all jurors answered questions on a questionnaire. They were asked follow-up
questions by the court. For example, they were asked whether they could k eep
an open mind or still be fair and impartial even though the victims in the case
were teenagers; whether they could decide the case only on the evidence even if
they heard references to gang activity; whether they had any difficulty with
concepts such as the presumption of innocence and the right of a criminal
defendant not to testify; and whether they thought the criminal justice system is
fair and effective.
A-1139-17T4
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Thirty-three panelists qualified to serve on the jury, having satisfied the
court and counsel they could fairly and impartially decide the case based on the
facts presented during trial and the court's instructions on the law. Of the thirty-
three, three were black. The court seated the first fifteen prospective jurors, had
them respond to additional voir dire, and had them provide information about
their backgrounds. The State, co-defendant Johnson, and co-defendant Dennis,
respectively, began to exercise their peremptory challenges, one by one. If a
party exercised a peremptory challenge and excused one of the fifteen seated
jurors, the excused juror would be replaced with another qualified juror, and the
next party in sequence would decide whether to exercise a peremptory
challenge.
Among the first fifteen prospective jurors seated, two were black. They
were seated in seats seven (Juror 7) and twelve (Juror 12). The parties exercised,
one by one, in sequence, four peremptory challenges without objection. The
prosecutor exercised his second peremptory challenge to excuse Juror 12 and
his fourth peremptory challenge to excuse Juror 7. By the time he exercised his
fourth challenge, the third black prospective juror (Juror 14) had been selected.
She had replaced the juror in seat fourteen after co-defendant Johnson used his
third peremptory challenge to excuse the juror previously seated there.
A-1139-17T4
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After the prosecutor exercised his fourth peremptory challenge to excuse
the second black prospective juror, and co-defendants exercised their fourth
peremptory challenges, the prosecutor announced the jury was acceptable to the
State. Co-defendants exercised their fifth peremptory challenges. For a second
time, the prosecutor announced the jury was acceptable to the State. Co-
defendants exercised their sixth peremptory challenges. For a third time, the
prosecutor announced the jury was acceptable to the State.
Co-defendant Johnson exercised his seventh peremptory challenge. Co-
defendant Dennis announced the jury was satisfactory to him. The prosecutor
then exercised his fifth peremptory challenge to excuse the remaining black
prospective juror, Juror 14. Co-defendants immediately objected. They asserted
at sidebar the prosecutor had exercised his peremptory challenges in a
discriminatory manner, had excused the only three black prospective jurors, and
had thereby deprived them of their constitutional right to an impartial jury.
The court heard argument but did not rule. It temporarily delayed further
discussion of the issue. Following the sidebar discussion, co-defendant Johnson
exercised his eighth peremptory challenge, exhausting the qualified prospective
jurors. The court recessed for lunch and resumed argument following the lunch
break. The next day, from a fourth panel of prospective jurors, the parties
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completed the jury selection process without exercising any additional
peremptory challenges.
The court twice conducted argument about the prosecutor's exercise of his
challenges to exclude black prospective jurors: first at the initial sidebar
conference following the defense objections, and again after the luncheon
recess. To put the arguments into perspective, we digress to discuss the
backgrounds of Jurors 7, 12, and 14.
Juror 7 said she could keep an open mind and be fair and impartial even
though the victims in the case were teenagers. She said she could decide the
case based on the facts presented, and not be influenced by any reference to gang
activity. Asked if she thought "our system of criminal justice is fair and
effective," she replied: "I guess so. . . . I haven't been a part of the system. So I
don't know." The court responded, "well, let me put it this way. You know, in
our system a defendant does not have to prove he's innocent. The State has to
prove he's guilty. Are you okay with that?" The juror replied she was. The
court asked if she knew a defendant did not have to testify, "doesn't have to give
any evidence, doesn't even have to be here. It's the State that has to prove
everything. Are you okay with that concept?" Again, Juror 7 replied, "yes."
Asked why she would make a good juror, Juror 7 responded she had to "be on
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an even playing field." She further explained, "I can't put any biases up." The
court responded that's all anyone could ask.
Juror 7, who had children, was an accountant who worked "in mutual
funds" for a large company. She enjoyed traveling and antigravity yoga. She
also enjoyed watching public television, cooking shows, and decorating shows.
She listened to news on a local channel and read the news on her cellular phone.
When initially qualified to serve on the jury, Juror 12 said she once sat on
a grand jury. Asked if she had any family or friends in law enforcement, she
responded she had a sister who was a member of the Department of Corrections,
but that relationship would in no way affect her ability to be fair to either side.
She maintained that she could be fair and impartial even though the victims were
teenagers, and she said she would be able to decide the case uninfluenced by
any evidence she heard about gang membership.
Juror 12 explained that she thought she could be a fair juror because of
her managerial position at work. She was the customer service manager for a
health care plan. In that capacity, she deals with a variety of people and must
be fair and impartial to them.
The court next asked if Juror 12 thought the system of justice was fair.
According to the record, she replied "yes." The following colloquy ensued:
A-1139-17T4
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THE COURT: Okay. You -- little hesitation. Tell me
when –
[JUROR 12]: I’m a little hesitant –
THE COURT: It’s not. Let’s put it that way.
[JUROR 12]: Because having not been a part of the
system I can’t really say for certain that you know it is
or it isn’t.
THE COURT: Okay.
[JUROR 12]: I’m just hearing different things when -
- in my opinion when I see certain things it’s like I
would have maybe judged that a little differently.
Maybe I don’t think that you looked at the evidence as
impartially as you should have. It’s just –
THE COURT: Do you have any particular instance
where you -- think of that or?
[JUROR 12]: Not really. No.
THE COURT: Okay. If you were here in this case
could you decide the case based solely on the evidence?
[JUROR 12]: And that’s what I think it should be based
on.
THE COURT: Okay.
[JUROR 12]: Just the evidence.
THE COURT: And you know in our system the
defendant or defendants do not have to prove their
innocence –
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[JUROR 12]: Oh I’m clear –
THE COURT: You’re okay with that?
[JUROR 12]: Yes.
THE COURT: Okay. Why do you think you might
make a good juror?
[JUROR 12]: Because I believe on being partial [sic]
and fair.
THE COURT: Being partial or impartial?
[JUROR 12]: And -- and fair.
THE COURT: Impartial? Impartial –
[JUROR 12]: Impartial and fair. I’m sorry.
THE COURT: Okay. That’s -- no. No.
[JUROR 12]: Just my –
THE COURT: Just want to make sure. No, no, no.
Okay. Good. What I’m going to ask you to – go ahead.
Question. Go.
[PROSECUTOR]: You hesitated about our system
(indiscernible) I didn’t really hear an explanation.
[JUROR 12]: Because I know that there are times when
it is not fair. You know? So, for me to be -- to come
and say yes I believe that the system[']s fair
(indiscernible) at all times. That’s not always true.
[PROSECUTOR]: What -- at what times was the
system not fair? At what time specifically did you see
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something or know something that you felt was unfair?
[JUROR 12]: Well, it depends. There’s -- just in terms
of things I’ve seen on television and cases that I felt as
though it wasn’t handled as fairly as –
[PROSECUTOR]: What would be those cases? What
type of cases? Obviously something stood out.
[JUROR 12]: I -- I really can’t say. I don’t -- to be
honest with you.
THE COURT: Okay. All right. As long as you tell us
that you would decide the case based on what happens
in the courtroom.
[JUROR 12]: I -- in my -- course of every -- my daily
dealings with people I have to deal with them based on
that particular situation –
THE COURT: Okay.
[JUROR 12]: I can’t pre-judge them. I can’t deal with
what happened in their lives in the past. I have to deal
with them based on our interactions today.
Juror 12 had three adult children, all doing well in their callings. She
enjoyed traveling. She enjoyed watching The Voice, American Idol, and So
You Think You Can Dance on television, and she watched local news channels.
Juror 14 worked as a traffic manager of commercial operations for a cable
network. She was not married, and she had no children. She enjoyed going to
the movies, going to concerts, and hanging out with friends. Television shows
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she watched included "SVU, Chicago P.D., [and] the Housewives." She
watched news on CNN and NBC.
During the sidebar conference immediately following the prosecutor's
striking of Juror 14, the court found a pattern such that the prosecutor was
required to explain his reasons for striking the three potential black jurors. We
quote the ensuing colloquy.
[PROSECUTOR]: Once again, Your Honor,
(indiscernible) individual (indiscernible)
characteristics of the (indiscernible) as far as
employment, experiences, law enforcement, people that
they know that did the crimes. I would note -- I would
note I have said satisfactory three times, allowing this
jury to be consisted -- to be constituted as is. That
makeup was tampered with by the defense in their
strategy to (indiscernible) based on my belief of
conservative white males. I've also indicated that I
have struck, for the record, two white women.
(Indiscernible) notes I would, once again, place on the
record that [counsel for Johnson] has struck four white
men, one white woman, one Hispanic male. [Counsel
for Dennis] has struck four white men, and two
Hispanic men, and one Asian man.
THE COURT: So is it -- the reason that you're striking
the black jurors is because defense struck –
[PROSECUTOR]: Correct.
THE COURT: -- white jurors? Not for anything having
to do particularly with the juror?
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[PROSECUTOR]: Correct. I -- I based my – I based
my observations on my jury, negatives and positives
and flatlines. Basically, people that are not negative
and positive. With th-- I have said satisfactory three
times. I was satisfied. It is the striking of the additional
people that caused my – my percentages and my
numbers to change as far as the value of each individual
juror.
....
[PROSECUTOR (to Defense Counsel)]: I did not use
race. By you striking jurors that I found favorable, I
needed to reconstitute the jury.
THE COURT: Okay. I know you need to reconstitute.
But you're reconstituting -- you're saying -- you're
telling me that you're deliberating [sic] reconstituting
to strike black jurors because white jurors were struck.
[PROSECUTOR]: No.
THE COURT: That's what –
....
[PROSECUTOR]: No. No. No.
THE COURT: That's what I thought you said.
[PROSECUTOR]: I'm –
THE COURT: Please explain that then.
[PROSECUTOR]: No. I'm saying I noted their
patterns. I -- I believe that they have a pattern.
THE COURT: Right.
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[PROSECUTOR]: I have no -- I have -- I have
individual reasons based on life experience in this,
based on whether they know police, do not know police,
based on all the questions you asked.
THE COURT: Can you be specific, if you can, from
your notes for each one of those jurors?
[PROSECUTOR]: Okay. Let me see. That would be –
THE COURT: All right. It's Juror Numbers 12, 7, and
14. I can give you the names if you want. 12 . . . was
the first one.
....
[PROSECUTOR]: She was a -- let's see. I noted that
she was nicely dressed. She's (indiscernible). She was
hesitant on -- on her fairness questions. When I
specifi-- when I specifically asked her to say her
reasons on why, she hesitated on whether or not she
could be fair. She -- and I asked her for spec-- specific
ideas. She was not able to provide specific ideas and
just said general.
THE COURT: Okay. And as to Juror Number 7 . . .
....
[PROSECUTOR]: I noted [she]-- had an eight and
[sixteen-year-old] daughter. I noted, based on her -- her
dress, her attitude, and her responses to questions, do
not find her as a (indiscernible) -- a strong juror for me.
THE COURT: Okay. And, finally, it would be Juror
Number 14.
A-1139-17T4
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....
[PROSECUTOR]: She does not have kids. She's not
married. I believe that it would be a -- it would be a
negative for my -- for my jury selection. I would
like to also note that her style of dress, her style of hair
was more a young attitude, a more permissive attitude.
(Indiscernible).
Following the morning recess, the court continued its inquiry. After
hearing from defense counsel, the court indicated it had listened to the "sidebar
system" during the luncheon recess, and there may have been a problem.
Concerned about the record, the court asked the prosecutor to reiterate his
reasons for striking the three black prospective jurors. The prosecutor gave the
following reasons:
[PROSECUTOR]: [Juror 12], she was hesitant on the
fairness question.
THE COURT: Okay.
[PROSECUTOR]: Could she be fair? Does she think
the sys-- could -- the system is fair. When I asked her
for specifics, she avoided answering on the specifics. I
asked her for an example. She could not provide an
example. That was, I guess –
THE COURT: Okay.
[PROSECUTOR]: -- the chief reason.
THE COURT: Okay. But again, I'm only doing this –
A-1139-17T4
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[PROSECUTOR]: Right.
THE COURT: I'm -- I'm not asking you just to restate
it because I want you to either enhance it or I didn't get
it. It is because I am concerned –
[PROSECUTOR]: Right.
THE COURT: -- that the record is not preserved. So –
[PROSECUTOR]: Okay. Now, there are things that I
noted that she's not -- she's never been a victim of a
crime. She does have a Department of Corrections
sister. I'm not sure if that plays well or not but that's –
THE COURT: Okay.
[PROSECUTOR]: My main reason is that she avoided
answering the question on specific. The next one would
be who? I'm not –
THE COURT: Number 7 . . . She was the accountant, I
believe.
[PROSECUTOR]: Yes.
....
[PROSECUTOR]: [She] does not know any police
officers. I believe that she is -- she says that she
believes in even playing. She was not a negative for
me. She was a flat line. But when the jury makeup
changed, I want more positives. I want more up arrows
than down arrows. So it wasn't anything. I noticed the
-- that she wore a hairstyle which was much more, I
would say, liberal in attitude. The -- there's also -- I
also look for youth. There was a – a hairdresser that's
very youthful that -- on the jury. Those are things I'm
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concerned about. I'm concerned about, do -- or do they
have life experience? Do they have -- or do they have
a – a - - an entrusted value in the community? So I saw
her as not a negative. I saw her as a -- as a pretty much
a blank –
THE COURT: Okay.
[PROSECUTOR]: -- and -- but when -- when I said,
satisfied, satisfied, satisfied, at one of those times,
counsel str-- struck a very favorable State juror. And
then I looked at my list again –
THE COURT: And that -- that's Number 14 . . .
....
[PROSECUTOR]: No children, not married. I had --
again, I noticed a -- she seemed youthful. She seemed
-- her hairstyle, her clothing. She seemed young. I
think she said she liked going out. I'm not sure. She
said, no kids, not married. I want people who are vested
in the community. I want people that have a stake in
the community. She also was -- I can note for the
record. She was not a negative. She was not a down -
- a down spiral. I'm sorry. She was not a down arrow.
She was a question mark.
Defense counsel reiterated the prosecutor had struck all three black
prospective jurors. They pointed out inconsistencies in the prosecutor's
explanations. Following argument, the trial court determined "the State ha[d]
met its burden . . . of offering reasons that are race neutral for striking the jurors
in question[.]"
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B.
In its oral opinion, the court reiterated co-defendants had established a
prima facie case so as to shift the burden to the prosecutor to explain his reasons
for excusing the jurors. The court noted it had given the prosecutor the
opportunity both before and after the break to explain his reasons for excusing
the jurors.
Next, the court recounted the reasons the prosecutor gave for striking the
three jurors. The court noted "there was no objection from the defense – not
that there had to be but there was no objection with the initial striking of Juror
12 and the second striking of Juror 7." The court noted the prosecutor did say
the jury was satisfactory three times before striking the last black prospective
juror.
The court continued:
And I find that the State has met its burden over the
objection of the defense of . . . offering reasons that are
race neutral for striking the jurors in question,
particularly as to Juror 12, that she was hesitant. Again,
she may have been acceptable but . . . the jury make-up
changes once there are challenges exercised.
Somebody may be quasi acceptable or acceptable and
then it changes . . . when a challenge is made.
Same thing with Juror 7 and Juror 14. Whether
there are inconsistencies, I don't find it as the - - that
there are race consistencies or there are race - - this was
A-1139-17T4
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a race or any other unconstitutional exercise or
deliberate exercise by the State. I find actually the
opposite. That the State gave reasons that are
legitimate, or not pretexts, to use the . . . peremptory
challenge.
I and I do find . . . and I rely particularly upon as
I said three times after no objection from the defense,
three times the State found as satisfactory the jury.
That had the defense found satisfactory would have
included Juror 14, the African American, which
ultimately the State challenged, which . . . prompted the
objection.
So I am going to deny the Gilmore[4] challenge
over the objection of the defense and we're going to
continue with jury selection. There is no remedy
because there is no breach is what my finding is.
C.
Co-defendant Johnson argues the trial court's ruling was clearly mistaken.
He points out the prosecutor used the majority of his peremptory challenges to
strike the only three prospective black jurors. He adds that but for their race,
the jurors were, "in all respects, as heterogeneous as the community as a whole."
He cites the occupations of each of the three, as well as their expressed
declarations they could fairly and impartially judge the case on the evidence
4
State v. Gilmore, 103 N.J. 508 (1986).
A-1139-17T4
24
alone. He also points out that Juror 7's "hesitation" was based on her
inexperience with the legal system, not any preconceived notion or prejudice.
Co-defendant Dennis emphasizes the inconsistencies in the prosecutor's
reasons. For example, he points out the prosecutor justified his challenge of
Juror 7 in part based on her having two daughters, her attire, her attitude, and
her liberal hairstyle, when in fact the juror had a daughter and a son, not two
daughters. Unlike Juror 7, who the prosecutor struck in part because she had
children, he claimed to have excused Juror 14 in part because she was not
married and had no children.
Johnson argues—and Dennis echoes—that either having children or
having no children is not a factor indicative of the situation-specific bias that
would justify the challenge of prospective jurors. Johnson adds that the
prosecutor's reliance upon his evaluation of grooming, attire, and hairstyles of
prospective jurors also fails to rise to the level of situation-specific bias which
might prevent the juror from impartially deciding a case.
The State responds by repeating in detail the reasons the prosecutor
excused each of the black prospective jurors. The State insists that each
expressed reason was a valid, non-discriminatory basis for exercising a
A-1139-17T4
25
peremptory challenge, and the trial judge's ruling so finding was not clearly
erroneous.
D.
Our Supreme Court has eloquently noted the paramount importance of a
fair trial:
One of our most cherished rights is the right to trial by
a fair and impartial jury. We zealously guard that right
by, among other things, requiring that the jury selection
process be free of racial or ethnic taint. When it has
been discerned that impermissible bias has infected the
selection of a jury, we have not hesitated to excise that
cancer and require a new trial, one where prejudice and
hatred have no place.
[State v. Osorio, 199 N.J. 486, 492 (2009).]
A defendant is entitled to a jury composed of peers or equals. Batson v.
Kentucky, 476 U.S. 79, 86 (1986). The United States and New Jersey
Constitutions prohibit the use of peremptory challenges to strike a juror based
on his or her race. Id. at 96; Gilmore, 103 N.J. at 521-22. "Under both the
United States and New Jersey Constitutions, the determination of whether the
prosecution has exercised peremptory challenges in a discriminatory matter
involves a three-step procedure." State v. Clark, 316 N.J. Super. 462, 468 (App.
Div. 1998).
A-1139-17T4
26
The first step requires that a defendant overcome the presumption of
constitutionality of a peremptory challenge by "producing evidence sufficient to
permit the trial judge to draw an inference that discrimination has occurred[.]"
State v. Thompson, 224 N.J. 324, 343 (2016) (quoting Johnson v. California,
545 U.S. 162, 170 (2005)). A defendant can satisfy this first step by showing
an
opponent has struck most or all of the members of the
identified group from the venire[;] whether the
opponent has used a disproportionate number of his
peremptories against a group[;] whether the jurors in
question share only this one characteristic – their
membership in the group – and that in all other respects
they are as heterogeneous as the community as a
whole[;] whether the opponent failed to engage those
same jurors in more than desultory voir dire, or indeed
to ask them any questions at all[;] and although the
defendant need not be a member of the excluded group
in order to complain of a violation of the representative
cross-section rule[,] whether he is, and especially if in
addition his alleged victim is a member of the group to
which the majority of the remaining jurors belong[.]
[Osorio, 199 N.J. at 503-04 (alterations in original)
(citations omitted).]
Once a defendant has produced such evidence and thus made a prima facie
showing, "this in effect gives rise to a presumption of unconstitutional action
that it is the burden of the prosecution to rebut." Gilmore, 103 N.J. at 537. The
prosecution must "come forward with evidence that the peremptory challenges
A-1139-17T4
27
under review are justifiable on the basis of concerns about situation-specific
bias." Thompson, 224 N.J. at 341 (quoting Gilmore, 103 N.J. at 537). "To carry
this burden, the State must articulate 'clear and reasonably specific' explanations
of its 'legitimate reasons' for exercising each of the peremptory challenges."
Gilmore, 103 N.J. at 537 (quoting Tex. Dep't. of Cmty. Affairs v. Burdine, 450
U.S. 248, 258 (1981)).
The trial court must decide whether these are, on the
one hand, genuine and reasonable grounds for believing
that potential jurors might have situation-specific
biases that would make excusing them reasonable and
desirable, given the aim of empanelling a fair and
impartial petit jury, or, on the other hand, "sham
excuses belatedly contrived to avoid admitting acts of
group discrimination."
[Id. at 537-38 (quoting People v. Wheeler, 583 P.2d
748, 765 (Cal. 1978)).]
"[T]he trial court must make specific findings with respect to the
prosecution's proffered reasons for exercising any disputed challenges. The
court must consider whether those reasons are 'reasonably relevant to the
particular case on trial or its parties or witnesses.'" Clark, 316 N.J. Super. at
473 (quoting Gilmore, 103 N.J. at 538). It is essential the trial court make
"separate findings . . . with respect to each disputed challenge." Ibid. If the
State's explanations appear to be genuine, they "should be accepted by the court,
A-1139-17T4
28
which will bear the responsibility of assessing the genuineness of the
prosecutor's response and of being alert to reasons that are pretextual."
Thompson, 224 N.J. at 341 (quoting Gilmore, 103 N.J. at 538).
In the third step, "the trial court must judge the defendant's prima facie
case against the prosecution's rebuttal to determine whether the defendant has
carried the ultimate burden of proving, by a preponderance of the evidence, that
the prosecution exercised its peremptory challenges on constitutionally-
impermissible grounds of presumed group bias." Ibid. (quoting Gilmore, 103
N.J. at 539). This final step requires the trial court to "assess, among other
things, whether the State has applied the proffered reasons 'even-handedly to all
prospective jurors'; the 'overall pattern' of the use of peremptory challenges; and
'the composition of the jury ultimately selected to try the case.'" Id. at 343
(quoting Osorio, 199 N.J. at 506). In Osorio, the Court explained:
[a] nondiscriminatory reason for exercising a
peremptory challenge which appears genuine and
reasonable on its face may become suspect if the only
prospective jurors with that characteristic who the
[party exercising the peremptory challenge] has
excused are members of a cognizable group.
In addition, the court must consider the overall pattern
of the [party's] use of its peremptory challenges. Even
if the reasons for each individual challenge appear
sufficient when considered in isolation from the . . .
other challenges, the use of a disproportionate number
A-1139-17T4
29
of peremptory challenges to remove members of a
cognizable group may warrant a finding that those
reasons are not genuine and reasonable.
Finally, the court must consider the composition of the
jury ultimately selected to try the case. Although the
presence on the jury of some members of the group
alleged to have been improperly excluded does not
relieve the trial court of the responsibility to ascertain
if any prospective juror was peremptorily challenged on
a discriminatory basis, this circumstance may be highly
probative of the ultimate question whether the . . .
proffered nondiscriminatory reasons for exercising
peremptory challenges are genuine and reasonable.
[199 N.J. at 506 (quoting Clark, 316 N.J. Super. at
474).]
We will uphold the trial court's ruling on whether the prosecution has
exercised its peremptory challenges on constitutionally impermissible grounds
unless it is clearly erroneous. Thompson, 224 N.J. at 344. The standard of
review "necessarily applies to the trial court's assessment of the prosecutor's
candor and sincerity in the presentation of reasons for exercising peremptory
challenges." Id. at 345 (citing State v. Williams, 113 N.J. 393, 411 (1988)).
In the case before us, the trial court applied the first analytical step and
determined co-defendants had overcome the presumption the prosecutor was
exercising his peremptory challenges in a constitutionally impermissible
manner. That determination is adequately supported by the record. Co-
A-1139-17T4
30
defendants were members of the excluded group, the prosecutor struck all
members of the identified group, and the prosecutor used a disproportionate
number of his peremptory challenges against the group. Osorio, 199 N.J. at 503-
04. The State does not challenge the trial court's determination of this first
analytical step.
This finding gave rise to the presumption the prosecutor had exercised his
peremptory challenges in an unconstitutional manner, thus shifting the burden
to the prosecution to rebut that presumption. Gilmore, 103 N.J. at 537. The
prosecutor was required "to come forward with evidence that the peremptory
challenges under review were justifiable on the basis of concerns about
situation-specific bias." Thompson, 224 N.J. at 341 (quoting Gilmore, 103 N.J.
at 537). To carry that burden, the prosecutor was required to "articulate 'clear
and reasonably specific' explanations of its 'legitimate reasons' for exercising
each of the peremptory challenges." Gilmore, 103 N.J. at 537 (quoting Tex.
Dep't. of Cmty. Affairs, 450 U.S. at 258). He was required to show his reasons
for exercising the disputed challenges were reasonably relevant to the particular
case on trial or its parties or witnesses, and the court was required to consider
whether the proffered reasons were relevant to the case or its parties or
A-1139-17T4
31
witnesses. Clark, 316 N.J. Super. at 473. The prosecutor failed to make such a
showing and the court failed to make such findings.
Subjected to either cursory consideration or close scrutiny, it is difficult
to discern how the prosecutor's proffered reasons for striking the three black
jurors were justifiable on the basis of concerns about "situation-specific bias[,]"
Thompson, 224 N.J. at 341, assuming the term bias is understood in its ordinary
sense, namely, "[g]enuine prejudice that a judge, juror, witness, or other person
has against some person or relevant subject." Black's Law Dictionary 198 (11th
ed. 2019). The majority of reasons expressed by the prosecutor can hardly be
characterized as specific.
The prosecutor's overarching theme was that as co-defendants exercised
peremptory challenges, and thereby "reconstituted the jury," he was forced to
use his peremptory challenges in an effort to obtain a jury more favorable to the
State. The record makes clear the prosecutor's perception of a jury more
favorable to the State was one with a significant number of conservative white
males. The prosecutor not only said as much, but when he returned after the
luncheon recess, having been challenged for striking black jurors, he insisted
the court query co-defendants about their reasons for striking white jurors. He
insisted the court rule on his application even after the court rejected co-
A-1139-17T4
32
defendants' claim the prosecutor had used his peremptory challenges in an
unconstitutional manner.
Next, in response to the trial court's question, the prosecutor said the
reason he was striking black jurors was because the defense was striking white
jurors. Although he later denied doing so, it is clear from the record the trial
court understood him to say just that. For after the prosecutor explained the
need to reconstitute the jury based on co-defendants' exercise of peremptory
challenges, and the court asked the prosecutor if he was deliberately
reconstituting by striking black jurors because white jurors were struck, the
prosecutor denied doing so. The court responded, "[t]hat's what I thought you
said."
In any event, after denying he used race as a factor, the prosecutor
explained he based his decisions on his system of rating jurors as "negative and
positives and flat lines." The record is devoid of any evidence of the criteria the
prosecutor used to determine whether a juror was a positive, negative, or a flat
line. In analytical terms, the prosecutor's explanation of his rating system lacked
any semblance of being "justifiable on the basis of concerns about situation-
specific bias." Osorio, 199 N.J. at 504. The prosecutor's generic explanation
of his rating system did not include "clear and reasonably specific explanations
A-1139-17T4
33
of . . . legitimate reasons for exercising each of the peremptory challenges."
Ibid.
The prosecutor's explanations for striking specific jurors were nearly as
thin. On the surface, the one arguably reasonable explanation the prosecutor
gave was for striking Juror 12. He claimed he struck Juror 12 primarily because
"she was hesitant on the fairness question." He added that when he asked for
specifics, she avoided answering on the specifics.
The prosecutor's explanation was not based on an entirely accurate
memory of Juror 12's responses. She never hesitated about whether she could
be fair. She hesitated when asked, "do you think our system of criminal justice
[is] fair and effective?" Juror 12 explained her hesitancy: "Because having not
been a part of this system, I can't really say for certain that you know it is or it
isn't." Juror 7 had given a similar answer. Asked if she thought the system of
criminal justice was fair and effective, Juror 7 replied, "I guess so. . . . I haven't
been a part of the system. So I don't know." The prosecutor did not strike Juror
7 because of her inexperience with jury service.
In response to the prosecutor pressing for specifics, Juror 12 said she had
seen things that caused her to believe she "would have maybe judged that a little
differently." She could not recall where she had seen such things; perhaps on
A-1139-17T4
34
television. She could recall no other details. It was her inability to recall
specifics the prosecutor cited as the primary reason for striking Juror 12.
Although perhaps the reason is legitimate, one is hard-pressed to understand
how Juror 12's responses gave rise to "genuine and reasonable grounds for
believing [Juror 12] might have situation-specific biases that would make
excusing [her] reasonable and desirable, given the aim of empanelling a fair and
impartial petit jury[.]" Gilmore, 103 N.J. at 537-38. Significantly, the
prosecutor did not explain how Juror 12's inexperience in serving on a jury or
lack of recall about certain details were reasonably relevant to the case or parties
or witnesses.
The prosecutor's reasons for striking Jurors 7 and 14 were less specific but
more contradictory than his reasons for striking Juror 12. His reasons for
striking Juror 7 included his mistaken belief that she had two young daughters—
she had a son and a daughter—and his reasons for striking Juror 14 included that
she had no children. He noted Juror 7 knew no law enforcement officers after
previously having noted Juror 12 had a sister in law enforcement, a corrections
officer.
The prosecutor's primary reasons for striking Jurors 7 and 14 were their
appearances. He struck Juror 7 because, among other reasons, "she wore a
A-1139-17T4
35
hairstyle which was, I would say, liberal in attitude." She apparently was also
young, and thus, in the prosecutor's mind, lacking in life experience and "an
entrusted value in the community." Similarly, he noted Juror 14 seemed
"youthful," apparently based on her hairstyle and clothing, and she liked going
out. He repeated he wanted people who were vested in the community, but he
did not say how such "investment" is determined or what community he
envisioned.
The prosecutor gave no specifics about Juror 7's hairstyle, short or long,
straight or curled, natural or dyed, let alone an explanation of how a hairstyle is
indicative of someone "liberal in attitude." He gave no specifics about Juror
14's hairstyle. More significantly, he did not explain how such generalities,
founded or unfounded, gave rise to concerns about situation-specific bias
implicating empaneling a fair and impartial jury, or how they were relevant to
the case at hand.
Significantly, even under the prosecutor's vague, unexplained rating
system, neither Juror 7 nor Juror 14 was a "negative." According to the
prosecutor, Juror 7 was not a negative, but rather "pretty much a blank," and
Juror 14 was not a "down arrow" but rather "a question mark." These
characterizations are tantamount to a statement the prosecutor did not have a
A-1139-17T4
36
bona fide belief that either Juror 7 or 14 had a situation-specific bias that would
make excusing them reasonable and desirable, given the aim of empaneling a
fair and impartial jury. The characterizations were contradictory to the notion
the prosecutor's reasons were relevant to the case, the parties, or the witnesses.
The trial court's analysis of the prosecutor's proffered reasons was also
inadequate when measured by State constitutional standards. In its opinion,
after recounting the prosecutor's explanations for striking black jurors and the
sequence in which the prosecutor exercised its challenges, the court provided
little more than conclusory statements upholding the prosecutor's exercise of
peremptory challenges. The court explained:
I note that there was no objection from the defense --
not that there had to be but there was no objection with
the initial striking of Juror Number 12 and the second
striking of Juror Number 7. After that, the State did
three times say that the jury was pr-- was -- was
satisfactory as presently constituted with Juror Number
14 on. And I find that the State has met its burden over
the objection of the defense of -- of -- of -- of offering
reasons that are race neutral for striking the jurors in
question, particularly as to Juror Number 12, that she
was hesitant. Again, she may have been acceptable but
the -- the jury makeup changes once there are
challenges exercised. Somebody may be quasi
acceptable or acceptable and then it changes. And I --
when a challenge is made. Same thing with Juror
Number 7 and Juror Number 14. Whether there are
inconsistencies, I don't find it as the -- that there are
race consistencies or there are race -- this was a race or
A-1139-17T4
37
any other unconstitutional exercise or deliberate
exercise by the State. I find actually the opposite. That
the State gave reasons that are legitimate, are not
pretexts to use the peremp--peremptory challenge.
And I do find -- and -- and I rely particularly upon, as I
said three times after no objection from the defense,
three times the State found as satisfactory the jury.
That had the defense found satisfactory would have
included Juror Number 14, the African American,
which ultimately the State challenged, which -- which
prompted the objection. So I am going to deny the
[Gilmore] challenge over the objections of the defense
and we're going to continue with jury selection. There
is no remedy because there is no -- no breach is what
my finding is.
That co-defendants did not object the first two times the prosecutor
excused black jurors is of little significance. The pattern may not have been
apparent at that time. And though the prosecutor may not have disturbed one
black juror had co-defendants not exercised the number of challenges they did,
the court was nonetheless required to consider whether the prosecutor's reasons
were "reasonably relevant to the particular case on trial or its parties or
witnesses." Clark, 316 N.J. Super. at 473. This, the court did not do. Rather,
the court did little more than conclude the prosecutor had offered race neutral
reasons for striking the jurors in question.
In addition, as part of the third analytical step, the trial court was required
to assess whether the State applied the "proffered reasons" even-handedly.
A-1139-17T4
38
Osorio, 199 N.J. at 506. The trial court was also required to consider the
prosecutor's overall pattern of the use of peremptory challenges and the
composition of the jury ultimately selected to try the case. Thompson, 224 N.J.
at 343. The record establishes the jury was devoid of black jurors. It does not
establish whether co-defendants were tried by an all-white jury.
The trial court's analysis, as well as the prosecutor's reasons, may have
satisfied the federal constitutional paradigm for determining the issue. Under
the federal constitutional analysis, "'[t]he second step of this process does not
demand an explanation that is persuasive, or even plausible'; so long as the
reason is not inherently discriminatory, it suffices." Rice v. Collins, 546 U.S.
333, 338 (2006) (quoting Purkett v. Elem, 514 U.S. 765, 767-68 (1995) (per
curiam)). In fact, under federal law, the prosecutor's explanation can even be
"silly" or "superstitious" so long as it is not discriminatory. Purkett, 514 U.S. at
768.
We understand the three-step paradigm is more exacting under New
Jersey's Constitution than the analysis required by federal constitutional
standards. Clark, 316 N.J. Super. at 468-71. Indeed, our Supreme Court has
recognized that its three-step analytical construct may in some instances cause
A-1139-17T4
39
an attorney caution when exercising peremptory challenges. The balance struck
is appropriate:
It may be that discrimination in the courtroom cannot
be eradicated without incurring costs. If the cost is
some constraint on counsel's otherwise unbridled
freedom in selecting jurors, we believe that it is a price
worth paying. The alternative, that counsel could
exclude a potential juror merely because the juror is a
member of a cognizable group, is unthinkable.
[State v. Watkins, 114 N.J. 259, 267 (1989).]
If the inadequacy of the trial court's analysis were the only issue before
us, we would need to consider the feasibility of a remand to supplement the
record. See Osorio, 199 N.J. at 509 ("Coupled with the passage of more than
seven years since jury selection, the effect of that delay on the recollection of
the participants, and the incompleteness of the record resulting therefrom, the
absence of a searching judicial review of [relevant] factors forecloses the
meaningful examination of any contest of the State's exercise of peremptory
challenges in this case. In those circumstances, and given the precious
constitutional rights at stake, we eschew any intermediate measures. In the end,
because the scant record before us does not instill confidence that the trial court
properly exercised its discretion in assessing the propriety of the contested
peremptory challenges, we are left with no reasonable or significant alternative
A-1139-17T4
40
to the remedy aptly ordered by the Appellate Division: vacating defendant 's
convictions and remanding the case for a new trial."); see also State v. Gomez,
341 N.J. Super. 560, 579 (App. Div. 2001) (suggesting recusal may be
appropriate on remand if the trial court has made findings concerning certain of
the State's proof of an evidentiary issue). In view of our determination the
prosecutor did not rebut the presumed unconstitutionality of his exercise of
peremptory challenges, we need not determine whether a remand is necessary.
Rather, we reverse and remand for a new trial.
III.
Co-defendants argue they were unduly prejudiced by the court's refusal to
instruct the jury, as co-defendants requested, on the defense of third-party guilt.
The trial court declined to charge the jury on third-party guilt because the State
alleged that co-defendants were guilty based upon accomplice liability. The
court reasoned that regardless of which gang members actually shot the victims,
many gang members were at the scene and participated in some way in the
shootings. The court decided that given the circumstances of the shooting and
the State's theory of the case, the third-party guilt charge would confuse the jury,
particularly in view of the accomplice liability charge.
A-1139-17T4
41
Indisputably, accurate and understandable jury instructions are essential
to a fair trial. State v. Savage, 172 N.J. 374, 387 (2002). Jury instructions
should include an explanation of the law as it relates to the material facts of the
case, operating like a road map to guide the jury. Ibid. Flawed instructions on
material issues constitute reversible error. State v. Grunow, 102 N.J. 133, 148
(1986). However, defendants are not entitled to have the jury charged in their
own words. State v. Thompson, 59 N.J. 396, 411 (1971).
Proper jury instructions are at times necessary to ensure a defendant is
afforded the opportunity to present a complete defense. A defense can include
evidence of third-party guilt. State v. Cope, 224 N.J. 530, 551 (2016); see also
State v. Jimenez, 175 N.J. 475, 486 (2003) (stating that a defendant is entitled
to show that someone else committed the crime); State v. Koedatich, 112 N.J.
225, 297 (1988) (explaining standard governing admissibility of evidence of
third-party guilt). In State v. Sturdivant, 31 N.J. 165, 179 (1959), the Court
explained:
[a] defendant of course may seek to prove that another
agency produced the death with which he is charged. It
would seem in principle to be sufficient if the proof
offered has a rational tendency to engender a
reasonable doubt with respect to an essential feature of
the State's case. . . . We think it not enough to prove
some hostile event and leave its connection with the
case to mere conjecture. Somewhere in the total
A-1139-17T4
42
circumstances there must be some thread capable of
inducing reasonable men to regard the event as bearing
upon the State's case. The question of relevancy
ultimately rests in a sound exercise of discretion.
To be admissible, evidence of another's guilt does not need to be
conclusive, and it "need not [constitute] substantial proof of a probability that
the third person committed the act[.]" Jimenez, 175 N.J. at 486. However, the
evidence cannot be speculative. Sturdivant, 31 N.J. at 179. A trial court must
engage in a fact-sensitive analysis to determine whether the evidence of third-
party guilt meets this requirement. State v. Cotto, 182 N.J. 316, 333 (2005). It
bears repeating that a trial court has broad discretion to admit or preclude
evidence of third-party guilt. Ibid.
Here, there is ample support for the court's decision to provide only the
accomplice liability instruction and not the third-party guilt instruction. The
theory of the State's case was that co-defendants were present at the scene and
encouraged or facilitated the shootings. Although the jury instruction did not
specifically name the principal shooter, based upon the evidence presented at
trial, the shooter could have been any of the gang members who armed
themselves and appeared at the scene along with co-defendants. There is no
evidence from which the jury could have concluded the victims were shot by
someone other than one of co-defendants' fellow gang members. And the court's
A-1139-17T4
43
accomplice liability instruction made clear that to convict either co-defendant
of a crime, the jury was required to find the accused had the purpose to
participate in that particular crime.
In short, there was no rational basis for the court to provide a third-party
guilt instruction. The trial court did not abuse its discretion by declining to so
instruct the jury.
IV.
Co-defendant Johnson argues that his second and third statements to
police should have been suppressed. He does not claim he was not given
Miranda5 warnings; rather, he claims the detectives who interviewed him
repeatedly deflected his questions about whether he would be imprisoned if he
requested a lawyer. We find no merit in his argument.
In his first statement—not at issue on appeal—Johnson said he and his
friends were shot at earlier in the day. Nothing Johnson said warranted his arrest
and he left.
Unlike his first interview, for the second interview Johnson was brought
to the station in handcuffs. His interview was videotaped. His Miranda rights
were read to him and he executed a Miranda rights waiver form. The transcript
5
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1139-17T4
44
of the interview evidences that Johnson was aware he would not have a lawyer
with him, and he nevertheless agreed to speak with police. In fact, the detectives
specifically informed him he could obtain a lawyer.
Although Johnson asked several times if he would be locked up if he
requested a lawyer, and though the detectives did not specifically answer his
question, he continually agreed to speak to the detectives. When he attempted
to have the detectives agree to release him after they spoke, they remained
evasive on the issue, but during the course of the interview, they offered to call
his mother and to give him food, beverages, and cigarettes.
Detective Maldonado conducted Johnson's third interview a short time
after the second. The interview was videotaped. The video shows that the
detective explained to Johnson the Miranda warnings were still in effect, but
that Johnson could waive his rights and continue to speak with the officers,
which Johnson did.
Johnson testified at the suppression hearing. He claimed that on October
3, 2014, the date of his second interview, he was ambushed, cuffed, and taken
to the police station again. He claimed the officers took him into the bathroom
and questioned him there about the crime before they made the second interview
video. According to Johnson, when the formal interview started, the officers
A-1139-17T4
45
did not tell him that the interview would be recorded. Although the officers read
the Miranda form to him, he claimed he said he did not understand it. He said
that when he tried to read the form, the officers "snatched" it away from him.
He testified he asked for a lawyer, but the detectives were not clear as to whether
or not he would be held by police until the lawyer arrived. He believed he would
be incarcerated if he waited for an attorney. Overall, he explained that he did
not want to talk to the officers, but that he felt threatened into doing so.
On cross-examination, Johnson claimed the officers yelled at him during
the first interview but admitted that the yelling was not displayed in the video
of the first interview. He claimed he was never physically threatened "on
video," but the officers did physically touch him at other times, and Detective
English "chok[ed] him up against the wall" at the time of the first interview.
However, he admitted that neither he, his parents, nor his attorney reported the
touching or filed a complaint. In addition, he admitted that the alleged physical
contact did not leave any bruising.
Johnson can read and write. He graduated from high school without being
held back and was an average student. He was accepted into a local community
college. Although he was nineteen at the time of the shooting, he claimed that
A-1139-17T4
46
he was not a "full grown-up." As to the Miranda document, he admitted that he
signed it.
The trial court denied Johnson's suppression motion in a written opinion.
As to the first interview, the court noted that Johnson did not appear to be
nervous or frightened, but rather tired. At the beginning of the second interview,
Johnson was read his Miranda rights. The court noted that a transcribing error
indicated that Johnson initially said that he did not understand his Miranda rights
before he admitted that he did. Specifically, the court concluded that Johnson
said he "kind of" understood his rights, not that "I don't" understand. The court
held that the wording difference was a transcription error.
The court found credible Detective Pearl's testimony that co-defendant
Johnson was not a suspect at the time of the first interview. The court reviewed
the totality of the circumstances to determine if Johnson's waivers of his
Miranda rights in the second and third interviews were given knowingly,
intelligently, and voluntarily. It concluded that Detectives Pearl, English, and
Maldonado testified completely and directly, whereas Johnson testified in low
tones to avoid being heard. Johnson's demeanor during the second interview
indicated that he did not want to be heard on the recordings because he also
spoke in low tones and wanted to avoid implicating his co-defendants. His
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claims that he was physically assaulted by the officers did "not ring true"
because his demeanor during the video showed that he was not in distress and
was calm until he decided to implicate other persons in the homicide, at which
time he became frightened and nervous.
Moreover, Johnson asked the officers for help because he was fearful of
reprisals from others for "snitch[ing]." The court found he would not have done
so if the officers had been threatening him. Finally, the court concluded that
Johnson understood his Miranda rights and voluntarily waived them because he
read and executed the form and, afterwards, he answered all the officers '
questions without difficulty.
Generally, a confession made during a custodial interrogation is
admissible if a defendant has been given Miranda warnings and has made a
voluntary, knowing, and intelligent waiver of those rights. State v. Knight, 183
N.J. 449, 461-62 (2005); State v. DiFrisco, 174 N.J. 195, 235 (2002). A court
will consider the totality of the circumstances to determine if an individual
knowingly, voluntarily, and intelligently waived his or her rights. State v. Cook,
179 N.J. 533, 563 (2004); State v. Galloway, 133 N.J. 631, 654 (1993). The
court will consider a multitude of factors, including the defendant's "age,
education and intelligence, advice concerning constitutional rights, length of
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detention, whether the questioning was repeated and prolonged in nature, and
whether physical punishment and mental exhaustion were involved." Cook, 179
N.J. at 563; State v. Timmendequas, 161 N.J. 515, 614 (1999). It will also take
into account the time that elapsed between when the Miranda warnings were
given and the statement made. Knight, 183 N.J. at 463. The State must establish
beyond a reasonable doubt that the statement was made voluntarily. Galloway,
133 N.J. at 654.
A reviewing court must determine if there was sufficient credible evidence
to affirm the findings of fact made by the trial court. State v. Locurto, 157 N.J.
463, 470-75 (1999). Corrective action is only necessary when the trial court's
findings are so wide of the mark that the interests of justice require intervention.
State v. S.S., 229 N.J. 360, 381 (2017). A reviewing court should defer to the
conclusions of the trial court in matters of witness credibility due to the
opportunity to see, hear, and have a feel for the case. State v. Johnson, 42 N.J.
146, 161 (1964).
On appeal, Johnson claims he reasonably feared he could not obtain a
lawyer without being incarcerated and, as a result, his second and third
statements to police should have been suppressed. However, Johnson's
questions about whether he would have to wait in jail while he waited for an
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attorney to arrive did not negate his Miranda waiver. The record demonstrates
Johnson's questions about jail were motivated not by his desire to have an
attorney present, but rather because he wanted the police to confirm that he could
go home after the interview. Johnson repeatedly stated that he wanted to speak
to police even after asking his questions about the attorney. By that time,
Johnson had already been read his rights, confirmed that he understood them,
and executed the Miranda waiver form.
Considering the totality of the circumstances, there is adequate support in
the record for the trial court's conclusion that Johnson voluntarily, knowingly,
and intelligently waived his Miranda rights. Moreover, the trial court was in a
much better position than an appellate court to understand the context of the
statements defendant points to now as the basis for his argument his waiver of
Miranda rights was not voluntary. Applying our standard of review, we find no
error in the trial court's decision.
V.
We have considered co-defendants' remaining arguments in support of
their attempt to obtain a new trial or acquittal and found them to be without
sufficient merit to warrant further discussion. R. 2:11-3(e)(2). In view of our
grant of a new trial, we need not address co-defendant Dennis's argument that
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his sentence is grossly disproportionate to the sentences of others who later
entered guilty pleas. Nor need we address co-defendant Dennis's guilty plea to
the CDS offenses, as he has not challenged his plea on appeal.
Reversed and remanded for a new trial.
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