STATE OF NEW JERSEY VS. KEVIN L. WHITE, JR. (18-09-1602, ATLANTIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2741-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN L. WHITE, JR.,
Defendant-Appellant.
________________________
Submitted September 16, 2020 – Decided September 25, 2020
Before Judges Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 18-09-1602.
Joseph E. Krakora, Public Defender, attorney for
appellant (Morgan Birck, Assistant Deputy Public
Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah D. Brigham, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Tried by a jury, defendant Kevin L. White, Jr. was convicted of second-
degree burglary, N.J.S.A. 2C:18-2(b)(1) (counts one and two); third-degree
terroristic threats, N.J.S.A. 2C:12-3(a) (count three); third-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(a)(2) (count four); and second-degree
conspiracy to commit burglary, N.J.S.A. 2C:5-2(a)(1) (count five). The
sentencing judge merged counts three and four with count two, merged count
five with count one and sentenced defendant to concurrent nine-year prison
terms on counts one and two, subject to an eighty-five percent parole
ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2. On appeal, defendant challenges his conviction and sentence. We affirm
his conviction on all counts, except count two. Additionally, we remand to
permit the trial court to amend the judgment of conviction to reflect a single
burglary conviction and to resentence defendant on counts three and four, based
on our reversal of count two.
We briefly summarize the facts. At approximately 1:45 a.m. on November
20, 2016, defendant and an accomplice broke into the home of defendant's
neighbor, L.C.1 L.C. was in her bedroom with her two-year-old son, while an
overnight guest occupied a separate bedroom with her two children.
1
We refer to the victim by her initials to protect her privacy.
A-2741-18T3
2
L.C. immediately recognized the intruder as her neighbor, and initially
thought he mistakenly wandered into her home. As she was startled to see
defendant, she screamed. Defendant lunged at L.C., climbed on top of her and
put his hand over her mouth. He was inches from her face when he told her to
"shut the fuck up." L.C. pleaded with her attacker, "[d]on’t hurt my baby," to
which he responded, "I'll kill that baby."
A physical struggle ensued, and defendant dragged L.C. down a hallway
toward the guestroom. L.C.'s friend came out of her room and when she saw
defendant's accomplice, they, too became involved in a physical fight. Both
women eventually freed themselves from their attackers and barricaded their
doors. L.C. immediately called 9-1-1 and then called out to her father, who was
in her garage, to get his gun. L.C.'s father saw two suspects running away and
yelled "Kevin, stop," when he recognized defendant. L.C.'s father saw
defendant and his accomplice drive away in a green Hyundai. L.C. confirmed
no property was taken from her home, but she and her friend sustained physical
injuries during the incident.
When the police arrived to investigate the incident, L.C. and her father
told them they suspected defendant was one of the intruders. L.C. told Sergeant
Scott Pollack that her attacker "looked like her neighbor from across the street
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that drives a green car," and described him as a 300-pound black male. Although
L.C. did not know defendant's name at the time, she had seen him about once a
week after moving into her home in 2015.
The police conducted a canine sniff of an area outside defendant's home,
but the dog did not alert to that area. Subsequently, the police obtained security
camera footage from L.C.'s neighbor which showed a green Hyundai pull up to
defendant's residence around the time L.C. called the police.
At trial, defendant testified that he was at a barbeque on the night of the
incident. Although he claimed L.C. mistakenly identified him, the jury
convicted him on all charges.
On appeal, defendant raises the following arguments:
POINT I
A NEW TRIAL SHOULD BE GRANTED
BECAUSE THE BURGLARY INSTRUCTIONS
FAILED TO SPECIFY THE UNLAWFUL ACT
ALLEGEDLY INTENDED UPON ENTERING
THE RESIDENCE, EVEN THOUGH THE
EVIDENCE WAS AMBIGUOUS AS TO THE
PERPETRATORS' INTENT, DENYING
DEFENDANT A FAIR TRIAL AND DUE
PROCESS. U.S. CONST., AMENDS. VI, XIV;
N.J. CONST., ART. I, ¶ 1.
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POINT II
DEFENDANT WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHT TO DUE
PROCESS BY MULTIPLE INSTANCES OF
PROSECUTORIAL MISCONDUCT. U.S.
CONST., AMEND. XIV; N.J. CONST., ART. I,
¶ 1.
A. During the cross-examination of a defense
witness, the prosecutor implied, without
evidence, that the police dog focused on
[defendant's] scent on the front porch of [ ]
Jackson Avenue.
B. In summation, the prosecutor, in direct
contradiction of Henderson 2 and currently
accepted science, and without any
evidence, argued that stress made the
critical eyewitness "hyper-focused" and
that her identification was thus more
reliable.
C. The cumulative impact of these errors was
especially harmful in a case that hinged on
eyewitness identification.
POINT III
BECAUSE THE DEFENDANT'S TWO
CONVICTIONS FOR BURGLARY – WHEN
THERE WAS ONLY ONE ENTRY – WERE
IMPROPERLY MULTIPLICITOUS, ONE OF
THE CONVICTIONS MUST BE DISMISSED.
U.S. CONST., AMEND. XIV; N.J. CONST.,
ART. I, ¶ 1.
2
State v. Henderson, 208 N.J. 208 (2011).
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POINT IV
THE SENTENCE OF NINE YEARS WITH AN
[EIGHTY-FIVE PERCENT] PAROLE
DISQUALIFICATION IS EXCESSIVE.
Regarding Point I, we engage in a harmless error analysis because
defendant objected to the adequacy of the jury charge during the charge
conference. State v. Baum, 224 N.J. 147, 159 (2016); R. 2:10-2. Under this
standard, we look for "'some degree of possibility that [the error] led to an unjust
result. The possibility must be real, one sufficient to raise a reasonable doubt
as to whether [it] led the jury to a verdict it otherwise might not have reached.'"
State v. Lazo, 209 N.J. 9, 26 (2012) (quoting State v. R.B., 183 N.J. 308, 330
(2005)).
"Accurate and understandable jury instructions in criminal cases are
essential to a defendant's right to a fair trial." State v. Bielkiewicz, 267 N.J.
Super. 520, 527 (App. Div. 1993) (quoting State v. Concepcion, 111 N.J. 373,
379 (1988)). So important is this principle, that "a trial court's failure to charge
the jury on an element of an offense is presumed to be prejudicial error, even in
the absence of a request by defense counsel." Id. at 527 (citing State v. Federico,
103 N.J. 169, 176 (1986)).
A-2741-18T3
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A person is guilty of burglary if, with purpose to commit an offense
therein, that person enters a structure without license or privilege to do so.
N.J.S.A. 2C:18-2(a)(1). Burglary is a crime of the second degree if in the course
of committing the offense, the actor purposely, knowingly, or recklessly
inflicted, attempted to inflict, or threatened to inflict bodily injury on anyo ne.
N.J.S.A. 2C:18-2(b)(1).
Here, although the trial judge declined defendant's request for the jury to
be instructed on the specific offense he intended to commit when entering L.C.'s
home, the judge's instructions encompassed the elements of burglary, and
directly tracked the Model Jury Charge, making his instructions presumptively
proper. State v. Whitaker, 402 N.J. Super. 495, 514 (App. Div. 2008); see also
Model Jury Charges (Criminal), "Burglary in the Second Degree (N.J.S.A.
2C:18-2(b))" (rev. Mar. 14, 2016). Moreover, footnote five of the Model Jury
Charge for second-degree burglary confirms that
where the circumstances surrounding the unlawful
entry do not give rise to any ambiguity or uncertainty
as to a defendant’s purpose in entering a structure
without privilege to do so [and lead] inevitably and
reasonably to the conclusion that some unlawful act is
intended to be committed inside the structure, then
specific instructions delineating the precise unlawful
acts intended are unnecessary.
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[Model Jury Charges (Criminal), "Burglary in the
Second Degree" at n. 5 (quoting State v. Robinson, 289
N.J. Super. 447, 458 (App. Div. 1996)).]
We are persuaded that defendant's statements and behavior toward his
victims, in the early morning hours of November 20, 2016, evinced a clear intent
to commit some unlawful act once he gained entry to L.C.'s home. Moreover,
the State did not need to prove that the offense defendant intended to commit
actually occurred. Robinson, 289 N.J. Super. at 453. Accordingly, we are
satisfied the judge committed no error when he declined to instruct the jury on
the specific offense defendant intended to commit.
Next, defendant argues, for the first time on appeal, that certain acts of
prosecutorial misconduct deprived him of due process. Because defendant did
not raise this claim at trial, we analyze this argument under the plain error
standard.
"[T]he primary duty of a prosecutor is not to obtain convictions but to see
that justice is done." State v. Smith, 212 N.J. 365, 402 (2012). A prosecutor
must use every legitimate means to bring about a just conviction, but refrain
from improper methods calculated to produce a wrongful one. Id. at 403. We
will find plain error if a prosecutor's questions and comments were "clearly
capable of producing an unjust result." R. 2:10-2.
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Prosecutorial misconduct is not a ground for reversal unless the
prosecutorial remarks were "so egregious that [they] deprived the defendant of
a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Further, a prosecutor's
remarks may be harmless if they are only a response to remarks made by defense
counsel. State v. DiPaglia, 64 N.J. 288, 297 (1974).
Prosecutors are "expected to make vigorous and forceful closing
arguments to juries." Frost, 158 N.J. at 82. They "are afforded considerable
leeway in closing arguments as long as their comments are reasonably related to
the scope of the evidence presented." Ibid. Still, a prosecutor's summation "is
limited to commenting upon the evidence and the reasonable inferences to be
drawn therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div. 2000).
"Although prosecutors may suggest legitimate inferences from the record, they
may not go beyond the facts before the jury." State v. Roach, 146 N.J. 208, 219
(1996). Guided by these principles, we review the prosecutor's challenged
comments "within the context of the trial as a whole." State v. Feaster, 156 N.J.
1, 64 (1998).
Defendant claims the prosecutor improperly questioned the mother of his
girlfriend about the canine sniff by asking if the dog tracked to the same area
where he would smoke outside on his porch. Defendant contends the
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prosecutor's cross-examination of this witness implied the dog tracked his scent
to the porch, even though that inference was not supported by the evidence. In
sum, defendant asserts that without any foundation, the State led the jury to
mistakenly believe it had some evidence against him related to the dog tracking.
Defendant also cites to State v. Parton, 251 N.J. Super. 230 (App. Div.
1991), to argue the prosecutor ignored the fundamental prerequisites to the
admission of testimony regarding dog tracking, namely:
1. The dog's handler must have sufficient knowledge,
skill, training or experience to evaluate the dog's
actions.
2. Once qualified as an expert, the handler must give
testimony about the particular dog used and that the dog
a. is of a stock characterized by acute scent and power
of discrimination and that this particular dog possessed
those qualities;
b. was trained and tested and proved to be reliable in
the tracking of human beings;
c. was laid on a trail where circumstances tended to
show that the suspect has been, or a track which
circumstances indicated was made by the suspect; and
d. followed the scent or track to or towards the suspect's
location and that the dog was properly handled
during tracking.
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3. After this foundation has been laid, the handler may
testify as to what the dog did during the tracking and
give his interpretation and opinion of the dog's actions.
[Parton, 251 N.J. Super. at 233-34 (citing State v.
Wanczyk, 196 N.J. Super. 397, 403-04 (Law Div.
1984)).]
We agree that before admitting a K-9 officer's testimony, a judge must
adhere to the Parton framework and ascertain if the officer's testimony qualifies
for admission as expert testimony. Here, however, the K-9 officer was not called
as a witness. Instead, defense counsel first asked Sergeant Pollack about the
results of the canine sniff, even though this officer was not the dog's handler.
Sergeant Pollack readily admitted "nothing came" of the dog tracking and that
he did not know if the canine was taken to defendant's home. On redirect, the
State did not question Sergeant Pollack about the canine sniff.
When defense counsel elicited additional testimony about the dog's
trajectory from the mother of defendant's girlfriend, the prosecutor briefly cross-
examined her about where the dog tracked. But on redirect, this witness
confirmed the dog did not alert to the area where defendant had been and instead,
"was just walking like everything was fine." Ultimately, no witness testified the
dog alerted police during the canine sniff. Further, contrary to defendant's
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claim, the prosecutor did not suggest he had superior knowledge of a positive
indication.
At the close of the case, the judge instructed the jury:
The mere fact that an attorney asks a question and
inserts facts or comments or opinions in that question
in no way proves the existence of those facts. You will
only consider such facts which, in your judgment, have
been proven by the testimony of witnesses or from
exhibits admitted into evidence.
We presume jurors abide by a judge's instructions. State v. Miller, 205
N.J. 109, 126 (2011). Accordingly, based on the entirety of the record before
us, and mindful of our standard of review, we are satisfied the State's limited
cross-examination regarding the canine sniff did not amount to plain error.
Defendant next argues for the first time on appeal that he was deprived of
due process because of comments the prosecutor made in his summation. In
particular, he claims the prosecutor impermissibly bolstered the reliability of
L.C.'s identification of defendant as her attacker by stating she was "hyper-
focused" during the incident. Defendant also contends the prosecutor's closing
remarks, coupled with his cross-examination regarding the canine sniff, had a
"cumulative impact" on his trial that was unduly prejudicial. We are not
persuaded.
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Initially, we observe that in defense counsel's closing remarks, she
characterized L.C.'s testimony as "not credible" and labeled L.C.'s identification
of defendant as "shaky." Defense counsel also questioned the reliability of
L.C.'s identification given the "stress of the situation, . . . the duration of the
encounter, less than two minutes, . . . and the lighting, the dark room." In
response, the prosecutor outlined several reasons L.C.'s identification of the
defendant was reliable, including the fact she knew defendant because he was
her neighbor, she was "face-to-face" during her encounter with defendant, and
his threat to kill her son made her "hyper-focused." The State argues these
comments were appropriate. But it also concedes the prosecutor mistakenly told
jurors L.C. was not "stressed," even though she answered affirmatively when
asked under cross-examination, "[t]his was stressful, correct?"
Notably, during their closing arguments, both attorneys advised jurors to
consider the judge's forthcoming instructions regarding identification testimony.
As anticipated, when summations ended, the judge properly instructed jurors
that "[a]rguments, statements, remarks . . . and summations of counsel are not
evidence and must not be treated as evidence." The judge also instructed jurors
to evaluate the reliability of L.C.'s identification by considering her level of
stress, the duration of the incident, the distance between L.C. and her attacker,
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and the lighting during the attack. Given that L.C. and defendant were not of
the same race, the judge also advised the jury that research demonstrated "people
may have greater difficulty in accurately identifying members of a different
race."
Once again, we consider defendant's argument about the prosecutor's
summation under the plain error standard. Confident that the jurors followed
the judge's instructions, since there are no proofs to the contrary, we are satisfied
the prosecutor's closing remarks do not constitute plain error. Moreover, we are
not convinced the prosecutor's closing remarks "stray[ed] over the line of
permissible commentary." State v. McNeil-Thomas, 238 N.J. 256, 275 (2019).
Considering our conclusions, it follows that we are not persuaded the
State's alleged errors cumulatively deprived defendant of a fair trial.
Additionally, the record reflects there was significant evidence of defendant's
culpability which was not tied to either the fruitless canine sniff or the
challenged remarks of the prosecutor. Accordingly, we perceive no basis to
reverse defendant's conviction.
We need not discuss defendant's Point III in detail as the State concedes,
and we conclude, defendant should have only been convicted of one count of
burglary.
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Multiplicity is the improper charging of "multiple counts of the same
crime, when defendant's alleged conduct would only support a conviction for
one count of that crime." State v. Hill-White, 456 N.J. Super. 1, 11 (App. Div.
2018). The remedy for multiplicity after conviction is "setting aside all but one
of the multiple convictions after the verdict." Id. at 12.
As we already stated, burglary is a second-degree crime if while
committing the offense, the actor "purposely, knowingly or recklessly inflicts,
attempts to inflict or threatens to inflict bodily injury on anyone." N.J.S.A.
2C:18-2(b)(1). "However, that does not mean that one burglary can be charged
as multiple burglaries if the actor harms or menaces multiple people in the
course of committing the burglary." Hill-White, 456 N.J. Super. at 18. As
defendant was charged with two counts of second-degree burglary based on
injuries he inflicted on L.C. and the threat to her son, we reverse the conviction
for burglary on count two. We also vacate the sentence imposed on that count.
Additionally, we remand for the limited purpose of amending the judgment of
conviction to reflect a single burglary conviction and to permit the trial court to
resentence defendant on counts three and four, which were previously merged
with count two. "'Convictions merged for the purpose of sentencing are not
extinguished' and may be unmerged if the conviction into which they were
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merged is reversed." Id. at 11 (quoting State v. Pennington, 273 N.J. Super. 289,
295 (App. Div. 1994)).
Regarding defendant's Point IV, we are not convinced that defendant's
sentence on count one, namely, a nine-year prison term, subject to NERA, is
excessive. Trial judges have broad sentencing discretion as long as the sentence
is based on competent credible evidence and fits within the statutory
framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify
and consider "any relevant aggravating and mitigating factors." State v. Case,
220 N.J. 49, 64 (2014). Further they must "explain how they arrived at a
particular sentence." Id. at 65 (citing State v. Fuentes, 217 N.J. 57, 74 (2014)).
"Appellate review of sentencing is deferential," and we therefore avoid
substituting our judgment for the judgment of the trial court. Ibid.; State v.
O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
Here, the judge considered defendant's criminal record, a presentence
report, character letters submitted for defendant's benefit and L.C.'s victim-
impact statement. The judge also identified the relevant aggravating and
mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b). We are satisfied the
judge's findings of fact concerning aggravating and non-existent mitigating
factors were based on competent and reasonably credible evidence in the record
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and that he applied the correct sentencing guidelines enunciated in the
Code. Accordingly, we discern no basis to second-guess the sentence on count
one.
Affirmed in part; reversed in part and remanded in part. We do not retain
jurisdiction.
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