STATE OF NEW JERSEY VS. JERRELL ALEXANDER (15-06-1396, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2497-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERRELL ALEXANDER,
Defendant-Appellant.
Submitted November 16, 2020 - Decided February 4, 2021
Before Judges Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 15-06-1396.
Law Offices of John T. Doyle, attorneys for appellant
(John T. Doyle, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Stephen A.
Pogany, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from his convictions following a jury trial. We affirm.
I.
We derive our facts from the evidence elicited at trial. In November 2014,
defendant and an unidentified man shot and killed Mencea Ryner who was
walking with a group of men, including Jaime Walker and Davon Arrington.
Surveillance videos taken from cameras in the area showed defendant arriving
on the scene on a bicycle carrying a .45 caliber gun with a laser scope which he
used to shoot at Ryner four times, striking him in the brain, heart, and body.
Ryner was pronounced dead at the scene.
On December 17, 2014, Walker and Arrington were shot by defendant and
another man, identified as Jassiem Harper, while they were walking together.
Walker was struck five times and died of his injuries on the scene. Arrington
was shot in the face, breaking his jaw and several teeth and severing his tongue.
The following day, police arrested defendant for a probation violation.1
He asked to speak to Essex County Prosecutor's Office (ECPO) detectives about
several incidents. After he was read his Miranda2 rights on December 18, 2014,
Detective Murad Muhammad questioned him about his involvement in the
November shooting. Defendant gave a statement which was played to the jury
1
Defendant was on probation for a third-degree theft conviction.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2497-16T4
2
during the trial. Defendant admitted he had fought with and robbed a man on
the night of the November shooting. He also stated he was riding the bicycle
that was seen on the surveillance video. Defendant denied shooting Ryner. He
stated at different times that Walker and Arrington were the shooters.
As the questioning continued, defendant stated that he possessed a .45
caliber handgun on the night of Ryner's death and he fired several shots towards
a porch, "letting off shots in front of" a group of men. He said four or five shots
"[p]ossibly" hit Ryner.3 The interview lasted approximately two and a half
hours.
ECPO Detective Rashaan Johnson was the lead detective for the
December shooting. He was working with Detective Muhammad and was
present when Muhammad interviewed defendant and other witnesses. On
December 19, 2014, Johnson interviewed defendant about the December
shooting. Defendant admitted he was present but stated Harper fired the shots
that struck Walker and Arrington. Defendant denied having a gun during the
December shooting. He stated that he ran away after the gunfire. The interview
with Johnson lasted approximately two hours.
3
Investigators recovered four shell casings from a .45 caliber handgun at the
scene.
A-2497-16T4
3
II.
Defendant was charged in an indictment with: conspiracy to commit first-
degree murder, N.J.S.A. 2C:5-2 and 2C:11-3(a)(1) to (2) (counts one, five and
ten); first-degree murder, N.J.S.A. 2C:11-3(a)(1) to (2) (count two); second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three,
seven and nine); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count four and eight); first-degree attempted murder,
N.J.S.A. 2C:5-1 and 2C:11-3 (count eleven); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count twelve); and first-degree witness tampering,
N.J.S.A. 2C:28-5(a)(1) (count thirteen). 4
Prior to trial, the State moved to admit defendant's statements. Defense
counsel opposed the admission, contending defendant had not waived his
Miranda rights. After hearing testimony from an ECPO detective, the court
4
An unknown, unindicted co-conspirator was also charged with count one.
Harper was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) to (2)
(count six) along with counts five, seven, eight, nine, ten, and thirteen.
For clarity, counts one and two pertained to Ryner's murder; counts three and
four to weapons offenses related to the November shooting; counts five and six
to the murder of Walker; counts seven, eight and nine to weapons offenses
related to the December shooting; counts ten and eleven to the conspiracy to
murder and attempted murder of Arrington; count twelve to the aggravated
assault against Arrington; and count thirteen to witness-tampering against
Walker and Arrington, the witnesses to the November shooting and victims of
the December shooting.
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4
granted the State's motion. In finding the statements admissible, the judge
stated:
[Defendant] appears to be a very intelligent young man
to me when I listened to him. He interacted with the
police officers in a very professional way. He talked
about these inciden[ts] that occurred, and
unfortunately, one of his friends was shot and it really
bothered him, and he even teared up to some degree
while he was discussing all of this; and it really
bothered him. [5]
I don't, I don't see this force, I don't see this coercion, I
don't see any of this in the record that's before the
[c]ourt.
....
I don't see any evidence at all to suggest that he signed,
we have -- he doesn't deny this is his signature. You
have a right to remain silent; anything can be used
against you; you can't afford a lawyer. Then they even
said I've been advised; I've read the statements; I
understand what my rights are; I'm willing to answer
any questions and make a statement. I do not want a
lawyer, but understand that I may have one at any time.
I also understand that I may stop answering questions
at any time.
This was read to him at least on three occasions. And
then one time, he even said I don't want to hear it, and
the officer said -- I think it was . . . Detective Johnson
-- I got to read it to you anyway.
5
Detective Muhammad noted defendant was crying as he discussed Ryner's
death in the first interview.
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5
And he sat there and no promises or threats have been
made to me, and no [pressure] . . . of any kind has been
used against me.
....
I mean, this is one of those cases where it's kind of,
unless I hear something differently, it's kind of laid out
almost as well as it could be. We have signed waivers;
we have a recorded statement on a CD; we have your
client not denying that he didn't sign it. We have an
officer who was there, present at both instances.
And I think the standard is beyond a reasonable doubt
because of a statement. And quite candidly, I don't
have any reasonable doubt, nothing to . . . make me not
believe that this defendant knew what he was doing.
He was, I watched him, you know. And I know there
was some cross-examination about keep your head
up.[6] But in this [c]ourt's opinion, listening to him
discuss and to talk about all of this, it didn't suggest to
the [c]ourt that he was under the influence, and
certainly that he was under the influence on the 18th.
He certainly didn't come back on the 19th and was still
under the influence a day later, he was in custody for a
whole 24 hours or so before he came back the next day
and gave another statement and executed the same
paperwork.
I just don't see it.
....
6
At the Miranda hearing, defense counsel questioned the detective whether
defendant could have been under the influence of any foreign substance at the
time of the interviews, noting Detective Johnson's request to defendant to pick
his head up during the second interview.
A-2497-16T4
6
I'm convinced that this is an admissible statement. As
to some of the nuances, as to whether or not everything
is completely admissible, we can discuss that later at
another date.
But I'm going to allow this statement if this case
proceeds to trial to be admissible against this defendant,
because I believe he knew what he was doing. I believe
it was a knowing and willing statement. . . . I do, I find
that it's going to be admissible.
The trial took place over a twelve-day period from September 13 to
October 7, 2016. Defendant was convicted on counts one, two, three, four, and
seven, and acquitted of all other counts. Defendant was sentenced to an
aggregate forty-eight-year prison term with an eighty-five percent parole
disqualifier.
III.
On appeal, defendant presents the following issues for our consideration:
I. DEFENDANT'S DECEMBER 14, AND 18, 2014
STATEMENTS WERE THE PRODUCT OF
PSYCHOLOGICAL COERCION AND WERE NOT
THE PRODUCT OF A VOLUNTARY, KNOWING
AND INTELLIGENT WAIVER OF HIS RIGHT TO
REMAIN SILENT AND THEREFORE SHOULD
HAVE BEEN SUPPRESSED BY THE TRIAL COURT
II. DEFENDANT DID NOT RECEIVE
ADEQUATE LEGAL REPRESENTATION FROM
TRIAL COUNSEL AS A RESULT OF COUNSEL'S
FAILURE TO ASK THE JURY TO CONSIDER THE
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LESSER INCLUDED CHARGES OF AGGRAVATED
MANSLAUGHTER, AND MANSLAUGHTER
WHERE THERE WAS A RATIONAL VIEW OF THE
EVIDENCE THAT SUPPORTED A CONVICTION
FOR THE LESSER INCLUDED OFFENSES AND
NOT THE GREATER OFFENSE
III. DEFENDANT'S SIXTH AMENDMENT RIGHT
TO CONFRONT THE WITNESSES AGAINST HIM
WAS VIOLATED BECAUSE THE STATE DID NOT
MAKE ADEQUATE EFFORTS TO PROCURE THE
IN-COURT TESTIMONY OF WITNESS DAVON
ARRINGTON AND INSTEAD INTRODUCED HIS
STATEMENTS AT TRIAL THROUGH THE
TESTIMONY OF DETECTIVE JOHNSON
A.
Defendant argues the trial court erred in admitting his December 18 and
19, 2014 statements to police because the State failed to prove beyond a
reasonable doubt that he knowingly, intelligently, and voluntarily waived his
Miranda rights. He contends his Miranda waivers were invalidated by "the
repetitive and pro[longed] nature of the interviews" which caused defendant to
experience "corresponding mental exhaustion . . . ." In addition, defendant
asserts that his request to speak to his mother during the first interview while he
was signing the Miranda waiver constituted an invocation of his right to remain
silent.
A-2497-16T4
8
We "engage in a 'searching and critical' review of the record to ensure
protection of a defendant's constitutional rights" when assessing the propriety
of a trial judge's decision to admit a police-obtained statement. State v. Hreha,
217 N.J. 368, 381-82 (2014) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)).
In performing our review, we defer to the trial judge's credibility and factual
findings because of the judge's ability to see and hear the witnesses, and thereby
obtain the intangible but crucial "feel" of the case. State v. Maltese, 222 N.J.
525, 543 (2015) (quoting Hreha, 217 N.J. at 382). To warrant reversal, a
defendant must show the admission of the statement was error "capable of
producing an unjust result." Ibid. (quoting R. 2:10-2). In our review of the
denial of a suppression motion, we defer to the trial judge's findings so long as
they are "supported by sufficient credible evidence . . . ." State v. S.S., 229 N.J.
360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). We will
not reverse a trial court's findings of fact based on its review of a recording of a
custodial interrogation unless the findings are clearly erroneous or mistaken. Id.
at 381.
"A suspect's waiver of his [or her] Fifth Amendment right to silence is
valid only if made 'voluntarily, knowingly and intelligently.'" State v. Adams,
127 N.J. 438, 447 (1992) (quoting Miranda, 384 U.S. at 444). The State bears
A-2497-16T4
9
the burden of establishing beyond a reasonable doubt that a confession is
knowing and voluntary. R. 104(c); State v. Nyhammer, 197 N.J. 383, 401 n.9
(2009).
The determination of the voluntariness of a custodial statement requires
an assessment of the "totality of all the surrounding circumstances" related to
the giving of the statement. State v. Roach, 146 N.J. 208, 227 (1996) (citations
omitted). In reviewing the totality of circumstances, the court considers the
following factors: a suspect's age, education, intelligence, prior contacts with
the criminal justice system, length of detention, advisement of constitutional
rights, the nature of the questioning, and whether physical punishment or mental
exhaustion were involved in the interrogation process. State ex rel. A.S., 203
N.J. 131, 146 (2010) (quoting State v. Presha, 163 N.J. 304, 313 (2000)).
If a defendant's invocation of his or her right to silence is clear and
unambiguous, it must be "scrupulously honored." S.S., 229 N.J. at 384 (quoting
State v. Johnson, 120 N.J. 263, 282 (1990)). If the invocation is ambiguous,
officers are permitted to clarify the defendant's ambiguous words or acts. Id. at
382-83 (citing Johnson, 120 N.J. at 283-84). The trial court must make a fact-
sensitive inquiry whether, under the totality of the circumstances, the officers
could have "reasonably" concluded that the defendant's "words or conduct . . .
A-2497-16T4
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[were] inconsistent with [his or her] willingness to discuss [the] case with the
police . . . ." Id. at 382 (quoting State v. Bey, 112 N.J. 123, 136 (1988)).
A request made by an adult prior to or during police questioning to speak
with someone other than an attorney generally does "not imply or suggest that
the individual desires to remain silent." State v. Diaz-Bridges, 208 N.J. 544,
567 (2011). In Diaz-Bridges, the defendant, an adult suspect in a homicide, was
advised of his Miranda rights and interrogated for more than three hours by
police, without making any admissions, before he began weeping and asked :
"'Can I just call my mom first?'" 208 N.J. at 552-53. Detectives did not honor
the request, instead continuing the interrogation despite the defendant's repeated
requests to call his mother. Id. at 553-54. After six hours and forty-five minutes,
the police permitted the defendant to call his mother. Id. at 554-55.
The Supreme Court held that, by itself, an adult's request to speak with a
parent "does not equate to an invocation of the right to remain silent . . . ." Id.
at 567. The Court did "not discern in any of defendant's requests to speak with
his mother an invocation of the right to silence[,]" reasoning further that because
the defendant "never once asked that the interrogators stop or even that they
leave him alone," his repeated requests to speak to his mother were of no
"constitutional significance." Id. at 569-70; see, e.g., State v. Martini, 131 N.J.
A-2497-16T4
11
176, 233 (1993) (finding no invocation of the right to silence where the
defendant requested to speak to his co-defendant girlfriend to tell her that he
planned to cooperate with police).
In other cases, this court has considered whether a suspect's request to
speak to a friend or family member before answering any questions may be an
implicit invocation of the right to remain silent. See, e.g., State v. Roman, 382
N.J. Super. 44, 65 (App. Div. 2005) (finding no invocation where the defendant
requested to speak to his parents to take a break from the interrogation); State v.
Brooks, 309 N.J. Super. 43, 57 (App. Div. 1998) (finding no invocation where
the defendant failed to indicate that he wanted to speak to his mother to obtain
her advice); see also State v. Faucette, 439 N.J. Super. 241, 262 (App. Div. 2015)
(finding no invocation where the defendant's request for his mother's presence
during interrogation "suggest[ed] a desire for support"). Cf. Maltese, 222 N.J.
at 546 (holding a twenty-year-old defendant invoked his right to remain silent
when he "unequivocally" indicated more than ten times that he wanted to obtain
his uncle's advice before answering any further questions); State v. Harvey, 121
N.J. 407, 417, 420 (1990) (finding the defendant invoked his right to silence
when he stated "he would tell [the officers] about the murder" after he spoke
with his father to obtain his advice).
A-2497-16T4
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Here, the record demonstrates defendant was properly advised of his
Miranda rights and his waiver of those rights was made knowingly and
intelligently. The trial court correctly held the State had proven defendant's
statements were made freely and voluntarily. At no time during the questioning
on either date did defendant indicate he wanted to revoke his consent, consult
with an attorney, or terminate the interview.
At the time of both statements, defendant was twenty years old, had
completed some high school education, had a prior conviction for theft, and was
arrested for a violation of probation prior to questioning. He was familiar with
the criminal justice system. The interviews were conducted on different days;
each lasting approximately two hours. Defendant responded clearly and
intelligently to the questions. The detectives did not exert any physical
punishment, mental exhaustion, or otherwise cajole defendant into giving a
statement. We are satisfied his statements to the police were freely given, and
the detectives did not mislead him.
In addition, under the totality of the circumstances, defendant's unclear
request to speak to his mother in the first interview was not an ambiguous
invocation of the right to remain silent. Defendant did not indicate an
unwillingness to speak to the detectives unless and until he spoke to his mother.
A-2497-16T4
13
Cf. Roman, 382 N.J. Super. at 65-66. He did not state he wished to obtain his
mother's advice or support. See Diaz-Bridges, 208 N.J. at 570; Faucette, 439
N.J. Super. at 261; Brooks, 309 N.J. Super. at 56.
The judge's findings are supported by sufficient credible evidence in the
record. We see no reason to disturb the determination to admit the statements.
B.
Defendant contends that his trial counsel was ineffective in failing to
request jury instructions on either reckless or aggravated manslaughter as lesser-
included offenses of murder. Defendant submits that his actions during the
November shooting – firing his weapon at unidentified individuals near Ryner
– were only reckless because he did not intend to kill Ryner.
"[C]ourts have expressed a general policy against entertaining ineffective -
assistance-of-counsel claims on direct appeal because such claims involve
allegations and evidence that lie outside the trial record." State v. Preciose, 129
N.J. 451, 460 (1992). However, when the trial itself provides an adequately
developed record upon which to evaluate defendant's claims, appellate courts
may consider the issue on direct appeal. State v. Allah, 170 N.J. 269, 285
(2002).
A-2497-16T4
14
The standard for determining whether trial counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668, 687 (1984) and adopted by the New Jersey
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
To prevail on a claim of ineffective assistance of counsel, defendant must
meet the two-pronged test establishing both that: (1) counsel's performance was
deficient and he or she made errors that were so egregious that counsel was not
functioning effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the defect in performance prejudiced defendant's
right to a fair trial such that there exists a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 687, 694.
Here, defendant did not request the court to instruct the jury on reckless
or aggravated manslaughter as lesser-included offenses. When an error has not
been brought to the trial court's attention, we will not reverse on the ground of
such error unless the error is "clearly capable of producing an unjust result." R.
2:10-2. "When a party does not object to a jury instruction, this court reviews
the instruction for plain error." State v. Montalvo, 229 N.J. 300, 320 (2017)
(citing R. 1:7-2; State v. Wakefield, 190 N.J. 397, 472-73 (2007)).
A-2497-16T4
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Even if there is no request by a party to charge the jury on a lesser -
included offense, a trial court has an independent, non-delegable duty to instruct
a jury on such a charge "when the facts adduced at trial clearly indicate that a
jury could convict on the lesser while acquitting on the greater offense." State
v. Jenkins, 178 N.J. 347, 361 (2004) (citations omitted).
A defendant commits murder when he or she "purposely causes death or
serious bodily injury resulting in death[,]" or "knowingly causes death or serious
bodily injury resulting in death . . . ." N.J.S.A. 2C:11-3(a)(1) and (2).
In contrast, a defendant commits aggravated manslaughter when he or she
"recklessly causes death under circumstances manifesting extreme indifference
to human life[.]" N.J.S.A. 2C:11-4(a)(1). "Aggravated manslaughter is a lesser-
included offense of murder." State v. Galicia, 210 N.J. 364, 400 (2012) (citation
omitted).
Reckless manslaughter is a lesser-included offense of aggravated
manslaughter. State v. Ruiz, 399 N.J. Super. 86, 97 (App. Div. 2008) (citing
State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)). A defendant
commits reckless manslaughter when he or she consciously disregards a
substantial and unjustifiable risk that death will result from his or her conduct.
N.J.S.A. 2C:11-4(b)(1); N.J.S.A. 2C:2-2(b)(3). "The risk must be of such a
A-2497-16T4
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nature and degree that . . . its disregard involves a gross deviation from the
standard of conduct that a reasonable person would observe in the actor's
situation." N.J.S.A. 2C:2-2(b)(3). The degree of risk for recklessness must be
more than "a mere possibility of death." State v. Curtis, 195 N.J. Super. 354,
364 (App. Div. 1984).
Our Supreme Court has found no rational basis to charge the jury on
lesser-included offenses to murder where a defendant shoots a victim several
times directed at vital organs. See, e.g., State v. Harris, 141 N.J. 525, 550-51
(1995) (finding no rational basis to charge passion/provocation manslaughter
when the defendant fired a single shot into the victim's back and neck at close
range while the victim was laying on ground); State v. Biegenwald, 126 N.J. 1,
18 (1991) (finding no rational basis to charge aggravated manslaughter when
the defendant shot the victim four times in the head at close range); State v.
Hightower, 120 N.J. 378, 413 (1990) (finding no rational basis to charge
aggravated manslaughter when the defendant shot the victim three times,
including one shot to the brain, at close range); State v. Rose, 120 N.J. 61, 64
(1990) (finding no rational basis to charge aggravated manslaughter when the
defendant fired a sawed-off shotgun into the victim's abdomen at point-blank
range); see also State v. Hammond, 338 N.J. Super. 330, 337-39 (App. Div.
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2001) (finding no rational basis to charge reckless manslaughter when, after
beating the victim, the defendant shot the victim five times at close range); see
also, e.g., State v. Mendez, 252 N.J. Super. 155, 160-62 (App. Div. 1991)
(finding no rational basis to charge reckless manslaughter where the defendant
fired a machine gun into a crowd because he knew it was practically certain that
his conduct would cause death or serious injury).
Under the facts presented here, defendant has failed to demonstrate trial
counsel was ineffective under the Strickland-Fritz test because the record lacks
credible evidence to support either manslaughter charge. The evidence suggests
only that defendant acted intentionally and knowingly rather than with mere
recklessness or under circumstances manifesting extreme indifference to human
life. Witness statements, surveillance video, ballistics analysis and defendant's
statements all rationally support no finding other than defendant acted
deliberately and intentionally in causing Ryner's death. The jury heard that
defendant approached Ryner while riding a bicycle and, using a laser scope, shot
him once. Defendant then got off the bicycle, drew his weapon, stood over
Ryner and discharged several shots directly at his head and body while Ryner
lay on the ground. Several bullets pierced Ryner's brain, heart, and lungs.
A-2497-16T4
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Considering those facts, there was no basis for defense counsel to request
or for the court to charge the jury with a lesser-included offense. There were no
grounds on which the jury could rationally conclude defendant did not either
purposely or knowingly kill Ryner and acquit defendant of murder and convict
him of reckless or aggravated manslaughter. Defendant cannot demonstrate
plain error or that the request for such instructions would have changed the
outcome of the case. We are satisfied the record does not support an ineffective
assistance of counsel claim for trial counsel's failure to request a lesser-included
charge.
C.
Defendant claims his confrontation rights were violated by the State's
failure to present Arrington as a trial witness and the trial court's admission of
Detective Johnson's impermissible hearsay testimony regarding Arrington's
statements to police that implicated defendant in the December shooting.
We review the trial court's evidentiary rulings for a mistaken exercise of
discretion. State v. Green, 236 N.J. 71, 81 (2018) (citing State v. Rose, 206 N.J.
141, 157 (2011)). A trial court's evidentiary ruling will not be reversed unless
it "is so wide of the mark that a manifest denial of justice resulted." State v.
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19
J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 N.J. 138, 147
(2001)).
The Sixth Amendment to the United States Constitution provides that "[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . ." U.S. Const., amend. VI. The text of the
New Jersey Constitution contains identical language. N.J. Const., art. I, ¶ 10;
State v. Kent, 391 N.J. Super. 352, 375 (App. Div. 2007). The clause has been
construed to prohibit "the admission of '[t]estimonial statements of witnesses
absent from trial' except 'where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine.'" State v. Rehmann,
419 N.J. Super. 451, 454-55 (App. Div. 2011) (alteration in original) (quoting
Crawford v. Washington, 541 U.S. 36, 59 (2004)).
During her cross-examination of Detective Johnson, defense counsel
elicited testimony that Johnson had obtained three statements from Arrington
regarding the November and December shootings. Defendant introduced the
transcripts of the statements into evidence and questioned Johnson about them.
Arrington did not identify defendant or either of the shooters in the November
murder of Ryner.
A-2497-16T4
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During a break in proceedings, the prosecutor advised the court that he
did not object to defendant introducing Arrington's statements during Johnson's
cross-examination, even though "quite a substantial part of Detective Johnson's
testimony was the hearsay of Davon Arrington." The prosecutor explained that
he was "having some issues getting [] Arrington to court." He stated he had
informed defense counsel that Arrington was not in New Jersey and he did not
mind having Arrington's statements being introduced through the detective's
testimony.
The prosecutor stated he wanted the court to know that normally he would
have objected to Arrington's statements being introduced through Johnson but
because of the difficulty he was having in producing Arrington as a witness, he
did not object in order to "giv[e] some favor to the defense to allow [some] parts
of [Arrington's statements] to come in."
On redirect examination of Johnson, the State sought to introduce other
portions of Arrington's statements. Johnson testified that during his statement
regarding the December shooting, Arrington identified defendant as the person
who shot him and also identified Harper as being present.
Defense counsel then objected to the prosecutor's line of questioning
regarding a specific line in the transcript in which Arrington said he was afraid
A-2497-16T4
21
of defendant. Counsel stated the question was beyond the scope of her cross-
examination and she did not open the door to permit the State to introduce other
portions of Arrington's statements during its redirect. The trial judge disagreed,
stating counsel's cross-examination questioned why Arrington initially did not
identify defendant.
Defense counsel responded that she only referred to portions of the
statement in which Arrington stated defendant did not shoot him. The court
again disagreed, noting that defense counsel questioned Johnson about
Arrington's statements regarding both the November and December shootings.
The court found that the defense opened the door to permit the State to question
Johnson about Arrington's statements on both shootings. The court overruled
defendant's objection, stating: "I think the door was blown wide open on . . . this
area and I think the State, in fairness, needs to go into it."
After a subsequent N.J.R.E. 104 hearing to determine whether Arrington
was "unavailable," the trial judge declined to give a Clawans7 charge or to grant
a mistrial. The prosecutor stated that Arrington was in New Jersey in 2015 but
he had later moved to Texas. The State was unsuccessful in communicating
with Arrington after his move.
7
State v. Clawans, 38 N.J. 162 (1962).
A-2497-16T4
22
The trial judge found Arrington was never subpoenaed and was not in
prison but his whereabouts were otherwise unknown. In addition, Arrington was
not a suspect so the State could not compel him to remain in the State. It was
also unclear whether there was a scheduled trial date when Arrington left New
Jersey, so there was no date for him to appear. Moreover, Arrington was a
victim and his testimony directly implicated defendant, therefore he was a
material witness and his testimony would have been favorable to the State.
In discussing the mistrial motion, defense counsel agreed her questioning
of Johnson went beyond the State's direct examination. The court found counsel
made a strategic decision to introduce portions of Arrington's statement that
exculpated defendant. However, in doing so, defense counsel opened the door
for the State to bring in other portions of the statements. Defense counsel also
advised that the prosecutor repeatedly told her, in private, off-the-record
conversations, that he "anticipate[d]" calling Arrington as a trial witness but to
"treat [Arrington] as if he's not coming . . . ." The judge replied that he did not
know of any rule that obligated the State to advise counsel whether or not a
witness was going to testify.
Hearsay is defined as "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of
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the matter asserted." State v. Brown, 236 N.J. 497, 522 (2019) (citing R.
801(c)). Hearsay may not be admitted into evidence unless it falls within one
of the exceptions provided by the rules of evidence or "other law." R. 802.
"The 'opening the door' doctrine is essentially a rule of expanded
relevancy and authorizes admitting evidence which otherwise would have been
irrelevant or inadmissible in order to respond to (1) admissible evidence that
generates an issue, or (2) inadmissible evidence admitted by the court over
objection." State v. James, 144 N.J. 538, 554 (1996) (emphasis omitted). The
doctrine "allows a party to elicit otherwise inadmissible evidence when the
opposing party has made unfair prejudicial use of related evidence." Ibid.(citation omitted).
Similarly, the doctrine of "curative admissibility" provides that "'when
inadmissible evidence has been allowed, when that evidence was prejudicial,
and when the proffered testimony would counter that prejudice,' the opposing
party thereafter 'may introduce otherwise inadmissible evidence to rebut or
explain the prior evidence.'" State v. Vandeweaghe, 177 N.J. 229, 238 (2003)
(quoting James, 144 N.J. at 555).
Our Supreme Court has emphasized that the opening the door and curative
admissibility doctrines can be used only "to prevent prejudice" and may not "be
A-2497-16T4
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subverted into a rule for [the] injection of prejudice." James, 144 N.J. at 556(quoting United States v. Winston, 447 F.2d 1236, 1240 (D.C. Cir. 1971)).
"Introduction of otherwise inadmissible evidence under the shield of [those]
doctrine[s] is permitted 'only to the extent necessary to remove any unfair
prejudice which might otherwise have ensued from the original evidence.'" Ibid.(quoting California Ins. Co. v. Allen, 235 F.2d 178, 180 (5th Cir.1956)).
Similarly, under the invited error doctrine, a defendant cannot "pursue a
strategy of allowing a substitute witness to testify—hopefully to his advantage—
and then when the strategy does not work out as planned, cry foul and win a new
trial." State v. Williams, 219 N.J. 89, 101 (2014); see State v. Santamaria, 236
N.J. 390, 409 (2019) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App.
Div. 1974)) ("Trial errors which were induced, encouraged or acquiesced in or
consented to by defense counsel ordinarily are not a basis for reversal on
appeal.").
Here, defense counsel stated she thought the State intended to call
Arrington as a trial witness, despite the prosecutor's statement that Arrington
should be treated as an unavailable witness. Despite the prosecutor advising
that Arrington would not testify in court right before Johnson's testimony,
defense counsel did not request a Rule 104 hearing to determine the
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admissibility of Arrington's statements and the State's efforts in attempting to
procure Arrington's trial testimony.
Knowing Arrington had identified defendant as the shooter, defense
counsel made a strategic decision during Johnson's cross-examination to
introduce Arrington's statements to challenge Arrington's credibility and to
suggest that a different person committed the crimes. The prosecutor did not
question Johnson about Arrington's statements during his direct examination.
Only after the defense introduced the statements on cross-examination did the
prosecutor seek to introduce other portions of the statements during redirect
examination. Finally, defense counsel conceded to the trial court that the
introduction of Arrington's statements on cross-examination was outside the
scope of the State's direct examination.
Although Johnson's testimony was indisputably impermissible hearsay
testimony, the defense introduced it, opening the door for the State to introduce
other portions of Arrington's statements. See Williams, 219 N.J. at 101;
Vandeweaghe, 177 N.J. at 238; James, 144 N.J. at 554. In addition, defense
counsel extensively cross-examined Johnson about his investigation and
Arrington's statements.
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Even if the admission of this testimony was error, it had no capacity to
produce an unjust result. See R. 2:10-2. There was substantial evidence against
defendant in addition to Arrington's identification, including surveillance video
that captured the November shooting; defendant's confession to police that he
shot at Ryner four times with a .45 caliber weapon, and was riding a bicycle
during the November shooting; defendant's confession to police that he was
present during the December shooting and his identification of the weapons
used; and ballistics evidence revealed Ryner was fatally shot with several .45-
caliber projectiles and Walker was fatally shot with one of the weapons
described in defendant's confession.
Any remaining arguments not addressed lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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