STATE OF NEW JERSEY VS. TROY LEEPER STATE OF NEW JERSEY VS. LEONARDO J. GRAULAU (17-03-0709, 17-07-1914, AND 17-07-2060, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED) ( 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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3430-17T1
A-4004-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TROY LEEPER, a/k/a JOJO,
TOJO, JOE JOE LEEPER,
and TROY CREEPER,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LEONARDO J. GRAULAU,
Defendant-Appellant.
__________________________
Submitted March 30, 2020 –
Decided September 3, 2020
Before Judges Ostrer, Vernoia, and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Indictment Nos. 17-
03-0709, 17-07-1914, and 17-07-2060.
Richard Sparaco, attorney for appellant Troy Leeper.
Joseph E. Krakora, Public Defender, attorney for
appellant Leonardo J. Graulau (Tamar Yael Lerer,
Assistant Deputy Public Defender, of counsel and on
the brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Nancy Philion Scharff,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief in A-3430-17;
Maura Murphy Sullivan, Special Deputy Attorney
General/Acting Assistant Prosecutor, of counsel and
on the brief in A-4004-17).
PER CURIAM
Defendants Troy Leeper and Leonardo J. Graulau were tried together
before a jury and both were found guilty of aggravated assault and conspiracy
to commit robbery. They separately appeal from their convictions and the
sentences that were thereafter imposed by the judge who presided over the trial.
We consolidate their back-to-back appeals for purposes of this opinion.
Each defendant raises several issues on appeal. Both challenge the trial
court's decision to deny their motions for directed verdicts of acquittal at the
close of the State's case-in-chief. After reviewing the record in view of the
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2
arguments of counsel and the legal principles that apply, we affirm the trial
court's decision to deny those motions. The State adduced ample evidence,
including surveillance video of the assault, to support defendants' convictions
for aggravated assault and conspiracy to commit robbery.
Defendant Leeper also claims for the first time on appeal that the trial
court erred by allowing the State to introduce hearsay evidence. He also
challenges the extended term of imprisonment that was imposed based on his
status as a persistent offender. We reject those contentions. The admission of
the hearsay evidence was not capable of producing an unjust result and therefore
does not rise to the level of plain error. Nor did the trial court abuse its discretion
when it sentenced Leeper to a fifteen-year term of imprisonment after finding
that defendant was a persistent offender pursuant to N.J.S.A. 2C:44-3(a).
Defendant Graulau also claims the trial court erred (1) in denying his
motion to suppress the incriminating statement he gave to police durin g a
custodial interrogation, (2) in allowing a detective to testify as to a portion of
the statement codefendant Leeper gave to police, and (3) in failing to account
for Graulau's young age when determining the length of the prison term to
impose. We reject those contentions as well. The record shows that Graulau
voluntarily and knowingly waived his right to remain silent and to consult with
A-3430-17T1
3
an attorney before answering questions. The portion of codefendant Leeper's
statement that was communicated to the jury through the detective's testimony
did not expressly incriminate Graulau and linked him to the criminal attack only
though other evidence in the case. Accordingly, the admission of this testimony
did not violate Graulau's right to confront the witnesses against him. Finally,
the trial court did not abuse its sentencing discretion or impose a prison term
that shocks the judicial conscience considering the brutality of Graulau's assault
upon the victim and his history of juvenile adjudications of delin quency. We
therefore affirm the convictions and sentences of both defendants.
I.
A Camden County grand jury returned a three-count indictment charging
Leeper and Graulau with (1) first-degree robbery, N.J.S.A. 2C:15-1(a)(1); (2)
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and (3) second-
degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1(a)(1).
Graulau filed a Miranda1 motion to suppress the statement he gave to
police. After convening a hearing, the trial court held that the statement was
voluntary and admissible.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-3430-17T1
4
Leeper and Graulau were tried together before a jury over the course of
two days. After the State presented its case-in-chief, both defendants moved for
a judgment of acquittal. The court denied the motion with respect to both
defendants and all charges. The jury thereafter convicted both defendants of
aggravated assault and conspiracy to commit robbery. The jury acquitted both
defendants of the substantive robbery charge. The jury also acquitted both
defendants of the lesser-included offense of theft.
Leeper was sentenced on the aggravated assault conviction to an extended
term of imprisonment as a persistent offender pursuant to N.J.S.A. 2C:44-3(a).
The trial judge imposed a state prison term of fifteen years subject to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the conspiracy to commit
robbery conviction, the court sentenced Leeper to a concurrent state prison term
of eight years subject to NERA.
Graulau was sentenced on the aggravated assault conviction to nine years
in prison subject to NERA. On the conspiracy to commit robbery conviction,
the court sentenced Graulau to a concurrent state prison term of seven years
subject to NERA.
A-3430-17T1
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II.
Defendant Leeper presents the following contentions for our
consideration:
POINT I
THE TRIAL COURT ERRED IN FAILING TO
GRANT THE DEFENDANT'S MOTION FOR A
DIRECTED FINDING OF NOT GUILTY OF
CONSPIRACY AND/OR AGGRAVATED ASSAULT
AT THE CONCLUSION OF THE STATE'S CASE-IN-
CHIEF.
POINT II
DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL DUE TO REPEATED ERRORS IN
ALLOWING HEARSAY TESTIMONY TO
BOLSTER THE TESTIMONY OF THE VICTIM AND
THEREBY UNDULY PREJUDICING THE
DEFENDANT.
POINT III
DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL DUE TO THE ERROR IN ALLOWING
INTO EVIDENCE OUT-OF-COURT
PHOTOGRAPHIC IDENTIFICATION OF
DEFENDANT THAT IMPROPERLY BOLSTERED
THE VICTIM'S TESTIMONY WHILE HAVING NO
PROBATIVE VALUE.
POINT IV
DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL WHEN THE DETECTIVE WAS
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PERMITTED TO MAKE AN IN-COURT
IDENTIFICATION OF THE DEFENDANT AS THE
PERSON IN THE ONE PHOTOGRAPH THAT WAS
SHOWN TO THE VICTIM AND WHOM THE
VICTIM IDENTIFIED AS HIS ASSAILANT.
POINT V
THE COURT ABUSED ITS DISCRETION IN
GRANTING THE STATE'S MOTION FOR AN
EXTENDED TERM SENTENCE.
POINT VI
THE SENTENCE OF FIFTEEN YEARS WAS
EXCESSIVE—THE COURT ERRED IN
EVALUATING THE MITIGATING AND
AGGRAVATING FACTORS.
Defendant Graulau presents the following contentions for our
consideration:
POINT I
BECAUSE THE STATE DID NOT DEMONSTRATE
BEYOND A REASONABLE DOUBT THAT THE
DEFENDANT UNDERSTOOD WHAT IT MEANT
TO WAIVE HIS RIGHTS, THE SUBSEQUENT
STATEMENT MUST BE SUPPRESSED.
POINT II
BECAUSE THE STATE PRESENTED NO
EVIDENCE OF AN AGREEMENT TO ROB THE
VICTIM, THE JUDGMENT OF ACQUITTAL
A-3430-17T1
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SHOULD HAVE BEEN GRANTED ON
CONSPIRACY TO COMMIT ROBBERY.
POINT III
THE ADMISSION OF THE NON-TESTIFYING CO-
DEFENDANT'S STATEMENT WAS UNLAWFUL
AND NECESSITATES REVERSAL OF
DEFENDANT'S CONVICTIONS.
POINT IV
THE TRIAL COURT'S FAILURE TO PROPERLY
TAKE INTO ACCOUNT DEFENDANT'S YOUNG
AGE RESULTED IN AN EXCESSIVE SENTENCE.
III.
Because both defendants appeal from the denial of a motion for acquittal,
we recount the evidence adduced by the State at trial in some detail. The victim
testified that he was confronted by Leeper as he exited a convenience store in
the City of Camden. The victim was familiar with Leeper and knew him by the
name "Jo-Jo." The two were discussing a prior verbal altercation between them
when other members of Leeper's "crew" 2 approached.
The victim identified Graulau as one of the members of the group that
accosted him. Leeper, Graulau, and the others formed a circle around the victim
2
Video footage of the group shows the victim was surrounded by six or seven
people.
A-3430-17T1
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to prevent him from escaping. Graulau told the victim, "[I]f you run or you
move, I'm gonna knock you the fuck out." The group then walked to Division
Street. The victim testified he was being led by Leeper, who was holding him
by the neck.
At one point, Leeper asked one of the members of the group, "[is] this the
guy right here?" He then asked the victim, "tell me what you said?" The victim
responded, "I ain't say nothing." The victim was then struck in the head from
behind, causing him to collapse. The group stomped, kicked, and punched the
victim in the head while screaming at him, "you lying, you lying, you lying."
Leeper pulled the victim up from the pavement and led him by the neck
into an alleyway. The victim testified that Graulau and a "third guy" were also
in the alley.3 The victim testified that Graulau said, "run [the victim's] pockets."
The victim testified they stole $160, his bicycle, and his cell phone. The victim
testified Leeper was the person who took the money from his pockets. The next
thing the victim remembered was encountering a police officer on the street.
Much of the victim's account concerning the initial confrontation was
corroborated by surveillance video that was played to the jury.
3
The third assailant was identified as defendant Graulau's brother, N.G. N.G.
was a juvenile at the time of the incident.
A-3430-17T1
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Officers Sean Hunter and Daniel Fiori were dispatched to Division Street
in response to a 911 call reporting a fight in the area. Officer Fiori located the
victim a block away in the area of 7th and Spruce streets. The officer's attention
was drawn to a large contusion on the victim's head. The jury was shown footage
taken from Officer Fiori's body-worn camera that shows the swelling and
laceration. Officer Fiori testified that the victim was staggering and kept
looking over his shoulder towards the alley. Officer Hunter next arrived on the
scene and observed the victim "visibly shaking" with a large welt on his head
and bleeding from his face.
In response to questioning from Officer Fiori, the victim said that "Jo-Jo
and the boys jumped him." He also told Officer Fiori that the assailants had
taken money and a phone from him.
The victim was taken to Cooper Hospital for medical treatment. He was
diagnosed with a hematoma and abrasions to the face. Before being discharged
from the hospital, the victim gave a recorded statement to Detective Michael
McFetridge. The victim stated that "Jo-Jo" was with two Hispanic males and
one black male. He was unable to provide names for the two Hispanic males.
He also said the group assaulted and robbed him, taking $160, a cell phone, and
his bicycle.
A-3430-17T1
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The victim later gave a second recorded statement to the detective. His
account of Leeper's role in the incident was different from the one he had
provided in his initial statement. In the statement he had given at the hospital,
the victim told Detective McFetridge that Leeper was trying to defuse the
situation as it escalated to violence. He did not tell Detective McFetridge that
Leeper punched, kicked, or stomped him, or that Leeper robbed him. In the
second recorded statement, after he was shown footage from the surveillance
video, the victim told the detective that Leeper had led him into an "ambush."
In an unrecorded third interview given on May 10, 2017, the victim provided
additional information and identified Leeper, Graulau, and N.G. from photo
arrays that were shown to him.
On May 17, 2017, Graulau was taken into custody and gave an
electronically recorded statement to Detective McFetridge. Graulau initially
denied having any part in the incident. After being shown the surveillance video
recording, however, he admitted to assaulting the victim in the presence of N.G.
and Leeper. He denied taking anything from the victim.
IV.
We first address the issue that both defendants raise on appeal, whether
the trial court erred by denying their motion for a directed verdict of acquittal at
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the conclusion of the State's case-in-chief. We begin our analysis by
acknowledging the legal principles that govern the nature and standard of our
review. In considering a motion for acquittal,
the question the trial judge must determine is whether,
viewing the State's evidence in its entirety, be that
evidence direct or circumstantial, and giving the State
benefit of all its favorable testimony as well as all of
the favorable inferences which reasonably could be
drawn therefrom, a reasonable jury could find guilt of
the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 458–59 (1967) (citing
State v. Fiorello, 36 N.J. 80, 90–91 (1961)).]
On appeal of a court's denial of a motion for judgment of acquittal, we apply th e
same standard as the trial court in reviewing an order denying a motion for a
judgment of acquittal. State v. Fuqua, 234 N.J. 583, 590 (2018) (citing State v.
Sugar, 240 N.J. Super. 148, 153 (App. Div. 1990)).
A.
We first address defendant Leeper's argument with respect to the charge
of aggravated assault. He claims the State failed to prove that the victim
sustained sufficient injury to warrant a conviction for aggravated assault. He
further asserts the evidence of his involvement in the attack was too weak to
justify his conviction for assault, noting that the victim was initially under the
A-3430-17T1
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impression that Leeper had nothing to do with the assault and had actually tried
to defuse the situation.
Leeper argues he was entitled to a directed verdict of acquittal because
the State failed to prove that the victim sustained serious bodily injury. The
term "serious bodily injury" is defined in N.J.S.A. 2C:11-1(b) as "bodily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ." Serious bodily injury is thus distinguished from bodily
injury, which "means physical pain, illness or any impairment of physical
condition." N.J.S.A. 2C:11-1(a). The Legislature has also defined an
intermediate level of injury, "significant bodily injury," as "bodily injury which
creates a temporary loss of the function of any bodily member or organ or
temporary loss of any one of the five senses." N.J.S.A. 2C:11-1(d).
Leeper's argument concerning the degree of injury is based on an
incomplete and thus erroneous interpretation of the aggravated assault offense
codified in N.J.S.A. 2C:12-1(b)(1). The statute makes clear that the State may
prove that an aggravated assault was committed even where the degree of injury
that was actually sustained by a victim does not rise to the level of serious bodily
injury. A jury may find that a defendant committed an aggravated assault under
A-3430-17T1
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N.J.S.A. 2C:12-1(b)(1) using an alternative method. The statute provides that a
person is guilty of aggravated assault if he "[a]ttempts to cause serious bodily
injury to another, or causes such injury purposely or knowingly . . . ." (emphasis
added). It thus is clear that "[a]n attempt to cause [serious bodily injury] is
sufficient to convict." State v. Mingo, 263 N.J. Super. 296, 305 (App. Div.
1992) (D'Annunzio, J., dissenting), rev'd, 132 N.J. 75 (1993) (reversing
judgment substantially for reasons expressed by the dissent).
It may be true that, fortuitously, the victim did not sustain serious bodily
injury from the attack. 4 In view of the alternate means for proving an aggravated
assault, however, we need not characterize the level of injury the victim actually
suffered by reference to the different gradations of bodily injury defined in
N.J.S.A. 2C:11-1. The trial court aptly recognized, in this regard, that the
resolution of defendants' motion for judgment of acquittal hinged on whether
4
The State did not present expert testimony that the head injuries the victim
sustained created a substantial risk of death. Those injuries, consisting of a large
hematoma and abrasions to the face and head, may be more consistent with
bodily injury than serious bodily injury. See State ex rel. T.S., 413 N.J. Super.
540, 542–43 (App. Div. 2010) (affirming a conviction for delinquency based on
simple assault after the defendant inflicted bodily injury by hitting the victim in
her "blind side" and striking her while she lay on the ground, ultimately causing
lacerations and bruises). Relatedly, the victim's disorientation after the assault
as described by the responding officers may be more consistent with a temporary
loss of senses that would constitute significant bodily injury rather than serious
bodily injury.
A-3430-17T1
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the State had presented sufficient evidence to show there had been an attempt to
inflict serious bodily injury. The court reasoned:
[T]he attempt aspect is really the focus that I think the
jury has to look at in this case. There was testimony
that [the victim] said he was being stomped and
assaulted. The video that was played for the jury
reflects that he was being kicked while he was in a
prone position . . . . Officer Fiori testified that when he
first saw him he had a welt the size of a softball on his
head. The conduct certainly reflects an attempt to cause
serious bodily injury. There's no other justification for
kicking someone while they're prone and on the ground
. . . . [A]ccordingly, the application to dismiss that
count will . . . be denied.
Our de novo review of the evidence presented by the State amply supports
the trial court's conclusion that a reasonable jury could find that the members of
the group attempted to cause serious bodily injury when they collectively
attacked the victim. A person attempts to commit a crime when, "acting with
the kind of culpability otherwise required for commission of the crime, he . . .
does . . . anything with the purpose of causing such result." N.J.S.A. 2C:5-
1(a)(2). The surveillance video played to the jury clearly shows the victim being
stomped, kicked, and punched by several persons, including Graulau. The
victim's skull was driven into the pavement while he was helpless and in a fetal
position. This vicious assault clearly placed the victim at risk of a serious brain
injury or a fractured skull, either of which could have resulted in "protracted
A-3430-17T1
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loss or impairment of the function of [an] . . . organ" or worse. N.J.S.A. 2C:11 -
1(b). Therefore, while the victim fortuitously might not have sustained serious
bodily injury, the record amply supports the trial court's determination that a
reasonable jury could conclude that the members of the group attempted to cause
serious bodily injury to the victim, thereby satisfying the requirements of
N.J.S.A. 2C:12-1(b)(1).
As we have noted, the surveillance video clearly shows that Graulau
brutally struck and kicked the victim. Furthermore, Graulau admitted to beating
the victim in his electronically recorded confession. In contrast, the State did
not present evidence that Leeper struck the victim, although there was evidence
that Leeper led the victim by the neck into the alleyway where the beating
continued and the alleged robbery occurred. It remains for us to decide whether
a reasonable jury could find that Leeper acted as an accomplice in the assault.
See N.J.S.A. 2C:2-6(b)(3) (holding accountable a person "for the conduct of
another person when . . . [h]e is an accomplice of such other person in the
commission of an offense").
Giving the State the benefit of its favorable testimony and all permissible
favorable inferences, Reyes, 50 N.J. at 458–59, a reasonable jury could find that
Leeper aided and abetted the assault. The questions Leeper posed to other
A-3430-17T1
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members of the group and to the victim support the inference that this was a
premeditated confrontation targeting the victim and that Leeper played a
significant role in effectuating what amounted to an ambush. Leeper's direct
physical acts directed against the victim, moreover, such as leading the victim
by the neck to the alley, further support the conclusion that Leeper aided and
abetted the attack even if he did not personally strike the victim.
We likewise reject Leeper's argument that the evidence was insufficient
because the victim's initial statement to police indicated that Leeper had tried to
defuse the situation rather than encourage escalation to physical violence. As
we have noted, under the Reyes standard, we are required not only to give the
State the benefit of all reasonable inferences but also to view the State's evidence
in its entirety. Reyes, 50 N.J. at 458–59. It is of no moment that a portion of
the State's evidence—the victim's initial statement to police—might support an
exculpatory inference when viewed in isolation. In view of all the State's proofs
that we have already recounted, a jury could reasonably conclude that Leeper
was part of a planned ambush that was intended to cause serious bodily injury
notwithstanding that the victim initially told police that Leeper had tried to
defuse the situation. Accordingly, the trial court properly denied Leeper's
motion for a directed verdict on the aggravated assault count.
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B.
We turn next to defendants' contention the trial court erred in denying
their motion for a judgment of acquittal for the offense of conspiracy to commit
robbery. Defendants argue that the State's evidence only established that they
were present at the scene of the assault. Such a showing, they maintain, was
insufficient to prove that they had entered into an agreement to rob the victim.
Defendants note that neither of them admitted to robbing the victim, and that the
victim appeared to equivocate on whether he was robbed on cross-examination.
Even if a robbery occurred, they argue, the evidence only shows that they
acquiesced or approved of the robbery, not that they entered into an agreement
to participate in the robbery as would be necessary prove conspiracy. See State
v. Carbone, 10 N.J. 329, 336–37 (1952) (requiring an agreement to support a
charge of conspiracy).
We disagree. We conclude, as did the trial court, a reasonable jury could
infer from the State's proofs that there had been an agreement to ambush the
victim, assault him, and take money and property from him in the course of
committing the planned attack.
As made clear in the plain language of the conspiracy statute, N.J.S.A.
2C:5-2(a), the State must prove there was an agreement to commit a specific
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crime. State v. Samuels, 189 N.J. 236, 245 (2007). "The mere knowledge,
acquiescence, or approval of the substantive offense, without an agreement to
cooperate, is not enough to establish [that] one [i]s a participant in a conspiracy."
State v. Abrams, 256 N.J. Super. 390, 401 (App. Div. 1992) (citation omitted).
Rather, "[t]here must be intentional participation in the activity with a goal of
furthering the common purpose; mere association is inadequate." Ibid. (citation
omitted).
The law is also clear, however, that the State is not required to show direct
evidence of the agreement such as a statement by co-conspirators manifesting
an express agreement to commit a crime. See State v. Kamienski, 254 N.J.
Super. 75, 94 (App. Div. 1992) (stating that "[a]n implicit or tacit agreement
may be inferred from the facts and circumstances" (citations omitted)). Rather,
"[b]ecause the conduct and words of co-conspirators is generally shrouded in
'silence, furtiveness and secrecy,' the conspiracy may be proven
circumstantially." Samuels, 189 N.J. at 246 (quoting State v. Phelps, 96 N.J.
500, 509 (1984)). Whether circumstantial evidence establishes an agreement is
a "question . . . of logic and common sense." Ibid. (quoting State v. Powell, 84
N.J. 305, 314 (1980)). "When 'each of the interconnected inferences [necessary
to support a finding of guilt beyond a reasonable doubt] is reasonable on the
A-3430-17T1
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evidence as a whole,' judgment of acquittal is not warranted." Ibid. (alteration
in original) (citations omitted).
Applying these principles to the proofs presented by the State in this case,
we conclude a jury could reasonably infer that there was an implicit or tacit
agreement to commit robbery. The first step in the logical sequence of
inferences leading to this conclusion is that the circumstances of the violent
confrontation suggest it was planned. The jury was free to conclude, in other
words, that the appearance of Graulau and others who surrounded the victim
while he was talking to Leeper was not mere happenstance. The inference that
the encounter was planned, in turn, supports the interconnected inference that
there was an agreement among the participants not just to intercept the victim,
but also to attack him based on some past transgression. 5 Relatedly, the
circumstances of the planned confrontation support the inference that the
agreement was not just to assault the victim but also to take property from him,
thereby inflicting economic and not just physical harm and underscoring the
assailants' power and control over him.
5
The State presented testimony that Leeper asked one of the members of the
group, "is this the guy right here?" Leeper then asked the victim, "tell me what
you said?" These questions suggest that the victim had not been targeted for
attack at random, but rather was targeted based on an earlier interaction
prompting some form of reprisal.
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Graulau's reliance on our decision in Abrams is misplaced. In Abrams,
we determined there was insufficient evidence to support defendant's conviction
for conspiracy to murder his paramour's husband. Id. at 401. The State's
conspiracy theory depended upon the defendant's recorded statement in which
he recounted his discussions with the victim's spouse concerning her "wish" for
her husband's death. Id. at 309. We concluded that at no point in any of the
conversations between defendant and the victim's wife did she ever "agree,"
either expressly or by implication, to any plan specifically proposed to kill her
husband. Id. at 400–01. In fact, Abrams related in his statement that the victim's
wife had told him it was not a good idea for him to kill her husband and that he
should go on his with his life. Id. at 400.
The facts presented in this case are quite different. The circumstances of
the group ambush suggest premeditation, planning, coordination, and reprisal.
Applying logic and common sense to the circumstances of the premeditated
group encounter, Samuels, 189 N.J. at 246, it was reasonable for a jury to infer
that there was at least an implicit agreement among the participants to intercept,
isolate, assault, and rob the victim. The State, moreover, produced ample
evidence of both defendants' respective roles in the encounter from which a
reasonable jury could conclude that Leeper and Graulau were parties to that
A-3430-17T1
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agreement. Accordingly, the trial court properly denied defendants' motions for
a directed verdict of acquittal on the conspiracy count.
V.
A.
We turn next to the issues raised separately by each defendant. We begin
with Leeper's contention that the State improperly introduced various forms of
inadmissible hearsay testimony. Leeper argues for the first time on appeal that
two detectives were permitted to testify about statements given to them by the
victim, thereby improperly bolstering the victim's credibility. Specifically,
Leeper claims Detective Fiori should not have been allowed to testify that the
victim told him "Jo-Jo" and the boys had assaulted and robbed him and should
not have been permitted to testify as to the victim's description of the assailants
and what they were wearing.
Leeper further contends that Detective McFetridge should not have been
permitted to testify that the victim told him he had been "assaulted and robbed
. . . of approximately $160 in cash and an LG cell phone, and a bicycle."
Defendant also contends that Detective McFetridge should not have been
allowed to testify as to the victim's description of Jo-Jo or to relate to the jury
that the victim told the detective he and Jo-Jo were acquainted.
A-3430-17T1
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We reject all of these contentions. We note, first, that some of the
statements Leeper points to are not inadmissible hearsay because they relate to
the victim's identification of defendant. For example, the victim's statement
providing the name "Jo-Jo" and his descriptions of the assailants would appear
to be admissible under N.J.R.E. 803(a)(3). See State v. Johnson, 216 N.J. Super.
588, 601–02 (App. Div. 1987) (permitting out-of-court descriptions given by
witnesses to police officers).
We nonetheless acknowledge that some of the statements attributed to the
victim and communicated to the jury through the testimony of Detectives Fiori
and McFetridge do not fall within a recognized exception to the general rule that
prohibits the admission of hearsay statements. See State v. Sinclair, 49 N.J. 525,
536, 547 (1967) (holding that it was error to admit testimony that a victim said,
"He is the one that robbed me, robbed us").
It bears repeating that Leeper did not object to this testimony. We view
the failure to interpose a timely objection as "strong evidence that the error
belatedly raised here was actually of no moment." State v. Tierney, 356 N.J.
Super. 468, 481 (App. Div. 2003) (quoting State v. White, 326 N.J. Super. 304,
315 (App. Div. 1999)). Because defendant did not object at trial, moreover, he
is required to show under the plain error doctrine that the testimony had the clear
A-3430-17T1
23
capacity to produce an unjust result. R. 2:10-2. "For a hearsay error to mandate
reversal, '[t]he possibility of [an unjust verdict] must be real, one sufficient to
raise a reasonable doubt as to whether the error led the jury to a result it
otherwise might not have reached." Neno v. Clinton, 167 N.J. 573, 586 (2001)
(alterations in original) (quoting State v. Hightower, 120 N.J. 378, 410 (1990)).
Our review of the record as a whole convinces us that defendant was not
denied a fair trial by the admission of these hearsay statements and thus has not
established the basis for overturning the verdict under Rule 2:10-2. The
belatedly challenged testimony relates to whether the victim was assaulted and
robbed, who assaulted and robbed him, what the assailants looked like, what
they were wearing, and what items were taken from the victim. The State
presented ample non-hearsay evidence concerning each of these facets of the
case. Notably, the confrontation was recorded on surveillance video and Leeper
does not dispute that he was present at the scene. The victim was familiar with
Leeper from prior interactions. Furthermore, the victim testified and was
subjected to extensive cross-examination. In view of the admissible evidence
that was presented at trial, the hearsay statements that were introduced without
objection did not have the capacity to produce an unjust result. R. 2:10-2.
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24
B.
Leeper next argues that he was denied a fair trial by Detective
McFetridge's testimony concerning the victim's out-of-court photo
identification. Detective McFetridge testified that he showed the victim a photo
array that included a photograph of Leeper. The detective testified that the
victim positively identified Leeper as being involved in the incident. Leeper
contends for the first time on appeal that this testimony was inadmissible
hearsay and was also inadmissible because its probative value was significantly
outweighed by the risk of undue prejudice. N.J.R.E. 802; N.J.R.E. 403.
These contentions lack sufficient merit to warrant extensive discussion.
R. 2:11-3(e)(2). The use of a photo array to confirm Leeper's identity as Jo-Jo
was permissible. State v. Farrow, 61 N.J. 434, 453 (1972) (permitting a witness
to confirm an identification of a defendant from a single photo shown to the
witness by law enforcement in order "to add [a] full name to a nickname"). The
testimony concerning the out-of-court identification was not inadmissible
hearsay. N.J.R.E. 803(a)(3). But even were we to assume that it was improper
for the detective to relate that the victim had positively identified Leeper, that
error would not rise to the level of plain error given that Leeper's presence at the
scene of the attack was not in dispute.
A-3430-17T1
25
Relatedly, this testimony was not unduly prejudicial under N.J.R.E. 403
as defendant now claims considering that Leeper and the victim knew each other
from past interactions and especially considering that Leeper did not deny that
he was present at the time of the assault. In these circumstances, we interpret
the failure to object to the identification testimony as strong evidence that
counsel recognized that these hearsay statements were inconsequential.
Tierney, 365 N.J. Super. at 481.
Additionally, Leeper for the first time on appeal challenges Detective
McFetridge's in-court identification of him as the person in the photograph
shown to the victim during the out-of-court identification procedure. Leeper
contends this testimony was inadmissible under N.J.R.E. 403 because it gave
"further credibility to the victim's testimony by having a law enforcement
detective point to the defendant and identify him to the jury." This contention
lacks sufficient merit to warrant all but brief discussion. R. 2:11-3(e)(2). As
noted, defendant's presence at the scene of the crime was not in dispute. The
detective's in-court identification of defendant as the person depicted in the
photograph selected by the victim, while improper, did not have the clear
capacity to produce an unjust result. R. 2:10-2.
A-3430-17T1
26
VI.
We next address Leeper's contentions relating to his sentence. He argues:
(1) the trial court abused its discretion in granting the State's motion to sentence
him to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44 -
3(a); (2) the trial court impermissibly double-counted his prior convictions,
considering them both as a predicate for finding defendant to be a persistent
offender and as a basis for finding aggravating factors; and (3) the court abused
its discretion in applying and weighing the aggravating and mitigating factors,
resulting in imposition of an excessive sentence.
A.
Defendant acknowledges that his criminal record makes him eligible for
a discretionary extended term as a persistent offender under N.J.S.A. 2C:44 -
3(a).6 He nonetheless maintains that his role in the assault does not warrant an
6
N.J.S.A. 2C:44-3(a) provides:
A persistent offender is a person who at the time of the
commission of the crime is 21 years of age or over, who
has previously been convicted on at least two separate
occasions of two crimes, committed at different times,
when he was at least 18 years if age, if the latest of these
crimes or the date of the defendant's last release from
confinement, whichever is later, is within 10 years of
A-3430-17T1
27
enhanced sentence and that he should instead have been sentenced within the
ordinary range of sentences that applies to the second-degree crimes for which
he was convicted. He contends nothing was unusual about the crime such that
an extended-term sentence was warranted, especially given that defendant
himself "took no active role in the assault upon [the victim]." Nor were any
weapons used in the assault. 7 Viewed in that light, defendant asserts that an
extended term of imprisonment was not necessary to ensure the "protection of
the public," which, he argues, is a required finding before the persistent offender
extended term may be imposed.
the date of the crime for which the defendant is being
sentenced.
7
Defendant's argument is in tension with the notion that the consequences of a
conviction are the same whether a defendant is a principal or accomplice. Cf.
State v. Rumblin, 166 N.J. 550, 557 (2001) (applying NERA to unarmed
accomplices of principals who commit first-degree armed robbery and other
crimes); State v. White, 166 N.J. 550, 130 (1984) (applying the sentencing
provisions of the Graves Act, N.J.S.A. 2C:43-6(c), to accomplices who did not
use or possesses firearms because "[o]ne is the alter ego of the other"). On the
facts presented to us in this case, we deem defendant to be culpable for the
consequences of the victim's ambush and beating.
A-3430-17T1
28
Defendant relies on State v. Dunbar, 108 N.J. 80 (1987), and State v.
Pierce, 188 N.J. 155 (2006), for that proposition. 8 In presenting this argument,
however, Leeper misconstrues the Supreme Court's holding in Pierce. The Court
in that case addressed the unanticipated Apprendi consequences of its earlier
ruling in Dunbar and concluded that a finding that a defendant meets the
statutory criteria for persistent-offender status based on the defendant's prior
criminal record raises the maximum sentence for Apprendi purposes to the top
of the extended-term range. 188 N.J. at 169. The Court added:
Where, within that range of sentences, the court
chooses to sentence a defendant remains in the sound
judgment of the court—subject to reasonableness and
the existence of credible evidence in the record to
support the court's finding of aggravating and
mitigating factors and the court's weighing and
balancing of those factors found.
[Ibid.]
8
Defendant appears to argue that this finding violates Sixth Amendment
principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 489 (2000)
(proscribing judicial factfinding "that increases the penalty for a crime beyond
the prescribed statutory maximum" penalty "[o]ther than the fact of a prior
conviction"). The New Jersey Supreme Court in Pierce considered and rejected
that argument, holding that a sentencing court's consideration of the need to
protect the public is made only after the court concludes that the defendant is
eligible for an enhanced sentence as a persistent offender by reason of his record
of prior convictions. 188 N.J. at 168.
A-3430-17T1
29
Furthermore, and directly contrary to defendant's present argument, the
Court clarified that "Dunbar's reference to a finding of 'need to protect the
public' is not a precondition to a defendant's eligibility for sentencing up to the
top of the discretionary extended-term range." Id. at 170 (emphasis added).
Rather, "[t]he court may consider the protection of the public when assessing
the appropriate length of a defendant's base term as part of the court's finding
and weighing of aggravating factors and mitigating factors." Ibid. (emphasis
added).
We would add that the Court in Dunbar recognized that protection of the
public is a concept rooted in deterrence. The Court reasoned, "[p]rimarily, 'the
adequate protection of society' standard encompasses the doctrine of
deterrence—the protection of society from future offenses by the defendant and
others through punishment." 108 N.J. at 91(citing State ex rel. C.A.H. & B.A.R.,
89 N.J. 326, 337 (1982)).
Aggravating factor nine specifically addresses the "need for deterring the
defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9). The
sentencing court properly found that aggravating factor nine applied in this case.
Thus, in accordance with the analytical framework explained in Pierce, the
sentencing court in this case assessed and accounted for the need to protect the
A-3430-17T1
30
public when it found aggravating factor nine. In sum, we believe the sentencing
court made all the required findings and properly imposed an extended term
under N.J.S.A. 2C:44-3(a).
B.
Leeper contends the trial court impermissibly double-counted the
convictions that made him eligible for an extended term by also relying on those
convictions in finding aggravating factors three (the risk that defendant will
commit another offense) and six (extent of criminal record). N.J.S.A. 2C:44 -
1(a)(3), (6). The record does not support defendant's claim.
We agree that it would be improper for a sentencing court to consider a
prior conviction both as a predicate offense for purposes of the persistent
offender extended term statute, N.J.S.A. 2C:44-3(a), and as a basis for finding
an aggravating factor under N.J.S.A. 2C:44-1(a). See State v. Vasquez, 374 N.J.
Super. 252, 267 (App. Div. 2005) (concluding that it was impermissible double-
counting for the court to raise the presumptive extended base term of defendant's
sentence on account of defendant's prior conviction, which was the conviction
requiring a mandatory extended term sentence); Cf. State v. Miller, 108 N.J.
112, 122 (1987) ("[F]actors invoked by the Legislature to establish the degree
of the crime should not be double counted when calculating the length of the
A-3430-17T1
31
sentence."). We do not agree, however, that such double counting occurred in
this case.
As noted, the persistent offender statute requires only two prior
convictions. See supra note 6. Leeper has four qualifying adult convictions:
three Superior Court convictions and a federal felony conviction. 9 Accordingly,
the sentencing court was free to consider the two extra convictions for purposes
of finding aggravating factors three and six without running afoul of the double
counting prohibition.
We recognize the sentencing court did not specify which of defendant's
prior convictions it was relying on to establish that defendant was a persistent
offender, and which ones the court relied on to find aggravating factors three
9
Defendant's history of Superior Court convictions includes (1) a conviction in
June 2006 for possession of a controlled dangerous substance (CDS) with intent
to distribute within 1,000 feet of a school zone, in violation of N.J.S.A. 2C:35-
7; (2) a conviction in April 2008 for possession of CDS, in violation of N.J.S.A.
2C:35-10(a)(1); and (3) a conviction in August 2016 for witness tampering, in
violation of N.J.S.A. 2C:28-5(a)(1). Defendant was convicted in federal court
on November 10, 2008, for possession of a firearm by a convicted felon.
Regarding defendant's federal conviction, we note N.J.S.A. 2C:44-4(c)
provides that the term prior conviction includes felony convictions i n another
jurisdiction if a term of imprisonment in excess of six months was authorized.
This definition applies to the persistent offender extended term statute. See
State v. Copeman, 197 N.J. Super. 261, 265 (App. Div. 1984) ("A conviction in
another jurisdiction can support a discretionary imposition of an extended
term."). Defendant received a fifty-five-month term of imprisonment for his
federal conviction.
A-3430-17T1
32
and six. The record nonetheless shows that the court was well aware of the
prohibition against double counting defendant's prior convictions. In its
sentencing memoranda, the State cautioned the trial court not to double count
the convictions used to establish defendant's extended-term eligibility as a
persistent offender when assessing the applicable aggravating factors.
Furthermore, the prosecutor at the sentencing hearing reiterated that it would be
inappropriate for "the court to double count the two [prior convictions] tha t it
had used to grant the persistent offender, extended term application." Just before
announcing the sentence, the court referenced the prosecutor's allocution,
noting, "[i]n determining the appropriate sentence, the court considered . . . the
recommendations of the prosecutor."
In these circumstances, Leeper has failed to establish that the trial judge
ignored the prosecutor's warning and impermissibly double-counted the prior
convictions. While it would have been preferable for the trial court to ha ve
specified how each prior conviction was used in the sentencing calculus, we
believe it would be pointless to remand the case for the court to expressly state
on the record that it complied with the rule prohibiting double counting that was
discussed at the sentencing hearing.
A-3430-17T1
33
C.
Finally, we reach Leeper's argument that the court imposed an excessive
sentence that shocks the judicial conscience. Leeper contends the sentencing
court erred in declining to find mitigating factor one (defendant's conduct
neither caused nor threatened serious harm), N.J.S.A. 2C:44-1(a)(1). He also
claims the court abused its discretion in weighing the aggravating and mitigating
factors. He asserts that a proper assessment should have resulted in a five-year
term of imprisonment, rather than the fifteen-year sentence that was imposed.
Our review of the record leads us to conclude that the trial judge conducted a
thorough and cogent analysis of the relevant circumstances pertaining both to
the offense and defendant's personal background. We therefore affirm the
fifteen-year prison term.
Sentencing determinations are entitled to deference. State v. Fuentes, 217
N.J. 57, 70 (2014). Appellate courts are not to substitute their judgment for the
trial court's judgment simply because the appellate court would have reached a
different result. State v. Lawless, 214 N.J. 594, 606 (2013) (citations omitted).
The appellate court must affirm the sentence unless (1)
the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
A-3430-17T1
34
sentence clearly unreasonable so as to shock the
judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364–65 (1984)).]
In this case, the judge's assessment of the relevant circumstances led him
to find aggravating factors three (the risk that defendant will commit another
offense); six (extent of criminal record); and nine (need to deter). N.J.S.A.
2C:44-1(a)(3), (6), (9). 10 The court considered but ultimately rejected Leeper's
argument for mitigating factors one (defendant's conduct did not cause or
threaten serious harm); eight (defendant's conduct was the result of
circumstances unlikely to recur); nine (defendant's character and attitude
indicate he is unlikely to commit another offense); eleven (imprisonment would
entail excessive hardship to defendant or his dependents); and twelve
(willingness of defendant to cooperate with law enforcement). N.J.S.A. 2C:44 -
1(b)(1), (8), (9), (11), (12).
10
The court rejected aggravating factors one (nature and circumstances of the
offense), and two (gravity of the harm to the victim). N.J.S.A. 2C:44 -1(a)(1),
(2). The court reasoned these factors were "calculated" into the second-degree
aggravated assault conviction.
A-3430-17T1
35
As noted, Leeper now challenges the sentencing court's decision to reject
mitigating factor one, which applies when "[t]he defendant's conduct neither
caused nor threatened serious harm." (emphasis added). The court reasoned that
Leeper "led the victim to the slaughter." 11 We note the sentencing judge
presided over the trial and thus was intimately familiar with the evidence
pertaining to defendant's role and culpability. We agree with the trial court that
Leeper's conduct threatened serious harm to the victim and thus conclude there
was ample basis for finding aggravating factor one.
In all other respects, moreover, the sentence imposed was based on
sufficient credible evidence, was reasonable, and does not shock the judicial
conscience. Roth, 95 N.J. at 364–65. Leeper has an extensive criminal record
consisting of three Superior Court convictions, a federal conviction, three
municipal court convictions, and multiple juvenile adjudications of delinquency.
See supra note 9. In view of the seriousness of the offense and defendant's
personal background, the imposition of a fifteen-year sentence subject to NERA
was appropriate and by no means constitutes an abuse of sentencing discretion.
11
The State's evidence showed that Leeper led the victim by the neck to the
location where he was beaten, stomped, and kicked in the head.
A-3430-17T1
36
To the extent we have not already addressed them, any other arguments
raised by Leeper lack sufficient merit to warrant discussion in this written
opinion. R. 2:11-3(e)(2). We turn then to the issues raised by defendant
Graulau.
VII.
Graulau challenges the trial court's decision to deny his motion to suppress
the electronically recorded statement he gave to Detective McFetridge during a
stationhouse interrogation. Graulau contends that he did not understand what it
means to "waive" constitutional rights and therefore did not relinquish those
rights knowingly. He further contends that even if his statement were
admissible, the trial court erred by not sua sponte highlighting to the jury that
during the waiver colloquy with Detective McFetridge, Graulau initially
indicated that he did not understand his rights. Graulau maintains the failure to
instruct the jury on this point had the capacity to mislead the jury and produce
an unjust result. 12
12
Graulau did not request the trial court to give this jury instruction.
Accordingly, we review this aspect of his first point on appeal under the plain
error standard. R. 2:10-2.
A-3430-17T1
37
We reject both of these contentions relating to his confession. Graulau
voluntarily and knowingly relinquished his Miranda rights. Furthermore, there
was no basis for the jury instruction he now claims should have been given.
We begin our analysis by noting that when reviewing the denial of a
motion to suppress a statement, we apply a deferential standard of review to the
trial court's findings of fact. State v. S.S., 229 N.J. 360, 379 (2017). We accept
the motion court's factual findings unless they are not supported by sufficient
credible evidence in the record. Id. at 381 (citing State v. Gamble, 218 N.J. 412,
424 (2014)). In contrast, we review the motion court's legal conclusions de
novo. Id. at 380.
Graulau's stationhouse custodial interrogation was electronically recorded
in accordance with Rule 3:17. The trial court thus had the benefit of knowing
exactly what defendant was told and what defendant said and did before he
admitted to his role in the beating of the victim. See State v. A.M., 237 N.J.
384, 401 (2019) (noting "that by videotaping their questioning of defendant,
police permitted the trial court to review the interview, and assess defendant's
overall deportment and conduct as well as the officers' demeanor and conduct
throughout the custodial interrogation").
A-3430-17T1
38
In order to address Leeper's contention that he did not knowingly waive
his Miranda rights, we recount in detail what transpired during the course of the
waiver portion of the interrogation. After discussing Graulau's background and
obtaining basic information, Detective McFetridge informed Graulau of the
purpose of the interrogation. The detective informed Graulau that he was
charged with robbery, conspiracy to commit robbery, and aggravated assault,
and that he was brought in to "get [his] side of the story."
Graulau inquired why a warrant had been issued against him. McFetridge
explained that he first had "to make sure that [Graulau] understood [his] rights."
Graulau replied, "Yeah, I have the right to remain silent . . . . I know all that.
You good. Come on." McFetridge reiterated that he was obligated to explain
defendant's rights.
McFetridge proceeded to advise Graulau of his Miranda rights, reading
them from the standard rights form utilized by law enforcement. See A.M., 237
N.J. at 400 (deeming it a "better practice . . . to read the entire Miranda rights
form aloud to a suspect being interrogated"). After reciting the Miranda rights,
Detective McFetridge asked Graulau whether he "desire[d] to waive those rights
to answer questions or give a statement?" Defendant Graulau responded,
"What?" The following colloquy occurred:
A-3430-17T1
39
Detective McFetridge: Now that you —
Defendant: If I'm a answer your questions or not, that's
what you saying?
Detective McFetridge: Right.
Defendant: Do I wanna talk to you? Yeah, come on.
Let's talk. Yeah. Come on.
Detective McFetridge: All right. So the date—
Defendant: It was just too many big words in that one.
Detective McFetridge: I feel you. But you
understand—
Defendant: Yeah, I understand it.
Detective McFetridge: Everything (indiscernible)—
Defendant: I understand it, yeah.
Detective McFetridge: And the final question's just
asking—
Defendant: Yeah.
Detective McFetridge: — If you're willing to talk to us
without an attorney.
Defendant: All right. Yeah.
Graulau proceeded to sign and initial each portion of the rights form,
indicating that he understood and waived each of the enumerated rights. He then
provided a statement to Detective McFetridge.
A-3430-17T1
40
After reviewing the video recording of the interrogation, the court found
that the State had established beyond a reasonable doubt that Graulau
"understood his rights, freely waived those rights and voluntarily gave a
statement." Accordingly, the court denied Graulau's suppression motion.
We have reviewed the record and conclude the evidence presented at the
Miranda hearing amply supports the trial court's determination that Graulau
knowingly and voluntarily waived his Miranda rights. Although Graulau may
initially have expressed confusion as to meaning of the term "waive," it is
abundantly clear that he was advised of his rights, that he understood those
rights, and that he voluntarily agreed to give a statement rather than exercise his
right to remain silent or to consult with an attorney. Indeed, the record shows
that Graulau was anxious to give a statement. The fact that Graulau at first
responded "what?" and then commented that the detective used "big words" does
not suggest that he did not understand his rights or the consequences of waiving
them by the time he signed the Miranda waiver form. By this point, defendant
clearly understood that by agreeing to answer questions, he was giving up his
right to remain silent and to consult with an attorney.
We also reject Graulau's claim the trial court should have instructed the
jury that he had initially expressed confusion. Instructions along the lines
A-3430-17T1
41
Graulau now suggests were not necessary and would have been misleading.
Contrary to Graulau's contention on appeal, the recording does not show that he
did not understand his rights. Rather, it shows at most that he did not at first
understand the term "waive" as meaning a voluntary relinquishment of those
rights. He nonetheless clearly understood that he had the right to exercise the
rights that were explained to him and chose instead to answer questions about
the incident. The audio-video recording clearly shows that Graulau was willing
to give a statement, indeed, was anxious to do so, and answered questions only
after signing the waiver form.
VIII.
Graulau next argues for the first time on appeal that his constitutional right
to confront the witnesses against him was violated when the trial court allowed
Detective McFetridge to summarize an admission that Leeper made to police
during a custodial interrogation. Specifically, Detective McFetridge testified:
He [Leeper] stated that . . . he was present for the
assault and robbery of [the victim]. He stated that he
was present, however, was attempting to de-escalate the
situation, but was unsuccessful. He stated that he later
learned that about $120 was taken from the victim,
which he later provided to a third party to return to [the
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42
victim]. He also stated that one of the suspects involved
in the incident had the first name of [N.G.]. 13
Graulau's Confrontation Clause argument is based entirely on this brief
portion of Detective McFetridge's testimony. Graulau contends that the
detective's synopsis of Leeper's statement impermissibly implicated him in the
assault and robbery. We disagree. The portion of Leeper's statement that was
relayed to the jury via Detective McFetridge did not expressly incriminate
Graulau and was only linked to him through other evidence in the case.
Counsel's failure to object or to request a limiting instruction, moreover,
supports our conclusion that this isolated portion of the detective's testimony
was inconsequential. See Tierney, 356 N.J. Super. at 481–82 ("[F]ailure to
'interpose a timely objection constitutes strong evidence that an error belatedly
raised . . . was actually of no moment.'" (quoting State v. White, 326 N.J. Super.
304, 315 (App. Div. 1999))).
The Confrontation Clause guarantees defendants the right to confront their
accusers. U.S. Const. amend. VI. In a trial with multiple defendants, "[t]he
Confrontation Clause generally forbids admitting testimony of a witness who
13
Leeper's statement referred to N.G. by his first name. Because N.G. was a
juvenile at the time of the attack, we use initials to refer to him throughout this
opinion. See supra note 3.
A-3430-17T1
43
directly or indirectly provides information derived from a non-testifying witness
that incriminates a defendant at trial." State v. Weaver, 219 N.J. 131, 151 (2014)
(citing State v. Branch, 182 N.J. 338, 350 (2005)). In Weaver, the Court noted
the "truth finding function" of the Confrontation Clause is "threatened when an
accomplice's confession is sought to be introduced against a criminal defendant
without the benefit of cross-examination." Id. at 152 (quoting State v. Laboy,
270 N.J. Super. 296, 303 (App. Div. 1994)).
In Bruton v. United States, the United States Supreme Court held that the
defendant's right of confrontation was violated by the admission of his
codefendant's incriminatory confession notwithstanding that curative jury
instructions were later given. 14 391 U.S. 123, 126 (1968). As the New Jersey
Supreme Court recognized in Weaver, the scope of Bruton's protective rule is
nonetheless limited. 219 N.J. at 153. In Bruton, the codefendant's confession
expressly incriminated the defendant. The United States Supreme Court later
clarified that the Bruton protective rule does not apply to a codefendant's
statement to police that does not incriminate the defendant "on its face" and is
linked to the defendant only through other evidence. Richardson v. Marsh, 481
14
We note that in this case, the trial court did not give a limiting instruction
directing the jury to consider defendant Leeper's statement only as evidence
against him, and not against defendant Graulau. See infra note 15.
A-3430-17T1
44
U.S. 200, 208 (1987); cf. Gray v. Maryland, 523 U.S. 185, 192 (1998) (holding
that Bruton's protective rule was violated when the codefendant's confession
replaced the "defendant's name with an obvious indication of deletion, such as
a blank space, the word 'deleted,' or a similar symbol").
In this instance, the portion of Leeper's statement that was presented to
the jury by Detective McFetridge did not expressly identify Graulau as a
participant in the crime. We note, however, that Leeper's statement does identify
N.G., defendant Graulau's brother, as a participant in the criminal attack.
Furthermore, Leeper's reference to N.G. as "one of the suspects involved"
suggests that another person besides N.G. was involved. 15 A critical question,
therefore, is whether Leeper's statement impermissibly identified Graulau by
inference.
15
In Richardson, the confession was redacted to "omit all indication that anyone
other than" the confessing codefendant and another individual "participated in
the crime." 481 U.S. at 203 (emphasis omitted). Thus, the confession only
implicated the confessing codefendant and the third party. Gray, 523 U.S. at
191 (citing Richardson, 481 U.S. at 203). The non-confessing defendant was
only implicated by the confession after he provided incriminating testimony.
Ibid. (citing Richardson, 481 U.S. at 204).
In the present case, Leeper's statement alludes to multiple participants in
the criminal episode. Furthermore, the prosecutor in his closing statement
addressed Graulau's relationship with his brother, N.G. who was mentioned in
Leeper's statement. The State noted in closing that the only reason N.G. was not
on trial was his status as a juvenile.
A-3430-17T1
45
We hold it did not. Cf. Priester v. Vaughn, 382 F.3d 394, 401 (3d Cir.
2004) (holding Bruton protective rule not violated where confession did not
"unavoidably" tie the defendant to the crime). Rather, Leeper's redacted
statement linked Graulau to the crime only through other evidence that was
properly admitted. Weaver, 219 N.J. at 153 (citing Richardson, 481 U.S. at
208). That evidence included the surveillance video showing Graulau beating
the victim, Graulau's own confession to the beating, and the victim's testimony
that Graulau said "run his pockets" just before he was robbed.
Even if we were to assume that the reference to Graulau's brother should
have been redacted from the detective's summary of Leeper's statement, that
reference does not warrant reversal of Graulau's convictions. As the Court
explained in Weaver, "[w]hen evidence is admitted that contravenes not only the
hearsay rule but also a constitutional right, an appellate court must determine
whether the error impacted the verdict." 219 N.J. at 154–55 (citing Chapman v.
California, 386 U.S. 18, 24 (1965)). "The standard has been phrased as requiring
a reviewing court 'to declare a belief that [the error] was harmless beyond a
reasonable doubt.'" Ibid. (alteration in original) (citing Chapman, 386 U.S. at
124); see also Branch, 182 N.J. at 353 (applying the plain error standard where
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a defendant fails to object to the erroneously admitted evidence by determining
whether the evidence is "clearly capable of producing an unjust result").
In this instance, because defendant's Confrontation Clause claim was not
raised below, it is subject to plain error review. R. 2:10-2. This assessment
requires an evaluation of the strength of the State's case, State v. Chapland, 187
N.J. 275, 289 (2006), and demands that an error raise a reasonable doubt in the
result of the trial before we will disturb a conviction. Tierney, 356 N.J. Super.
at 477 (citing State v. Macon, 57 N.J. 325, 336 (1971)).
After reviewing the record in its entirety, we conclude that even assuming
for purposes of argument that Detective McFetridge's testimony concerning
Leeper's statement was not properly redacted, any such error was harmless
beyond a reasonable doubt. With respect to the ambush and assault, Graulau's
participation was proved conclusively by the surveillance video, which shows
him kicking and stomping the victim's head into the pavement. Moreover,
Graulau confessed to the assault after reviewing the video recording of the
crime. In short, the State's evidence that Graulau committed aggravated assault
is overwhelming. State v. Guzman, 313 N.J. Super. 363, 383–84 (App. Div.
1998) (holding that where the State's evidence, absent the challenged statement,
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is overwhelming, the plain-error standard does not favor disturbing a defendant's
conviction for a Bruton violation).
With respect to the conspiracy to commit robbery conviction, as we have
noted, the evidence was circumstantial and thus less overwhelming. 16 Even so,
we conclude Detective McFetridge's brief testimony concerning Leeper's
statement did not impact Graulau's conspiracy conviction.17 As we have noted
repeatedly, the failure to object to this portion of the detective's testimony
suggests that it was of no moment. Tierney, 356 N.J. Super. at 481-82.
We note the trial court did not give a limiting instruction after Detective
McFetridge summarized defendant Leeper's statement to police. We believe it
would have been appropriate to instruct the jury to consider defendant Leeper's
statement only as evidence against him and not against defendant Graulau.
Gray, 523 U.S. at 188.
16
We also note that defendants were acquitted of the substantive offense of
robbery.
17
Graulau characterizes a portion of Leeper's statement as a reference to
Leeper's attempt to make "restitution." While that statement may have been
incriminating as to Leeper's culpability with respect to the robbery, it does not
expressly incriminate Graulau and does not suggest that Graulau was part of an
agreement to rob the victim.
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Graulau's counsel did not request such an instruction. Under the plain -
error standard, a failure to deliver the appropriate jury instruction requires
reversal only if it raises a reasonable doubt in the result of the trial. Tierney,
356 N.J. Super. at 477 (citing Macon, 57 N.J. at 336). As we have already
noted, the State's evidence against Graulau on the assault charge was
overwhelming. Although the State's evidence concerning the robbery
conspiracy was circumstantial and thus less overwhelming than the proof of
assault, we conclude that any error in failing to sua sponte give a limiting
instruction to the jury was harmless beyond a reasonable doubt even as to the
conspiracy charge.
IX.
We turn finally to Graulau's contention the trial court imposed an
excessive sentence by failing to properly account for his youthful age. Graulau
was nineteen-years old when he was sentenced.
As we previously noted, a trial court's sentencing determination is entitled
to deference. Fuentes, 217 N.J. at 70.
The appellate court must affirm the sentence unless (1)
the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
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sentence clearly unreasonable so as to shock the
judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
Roth, 95 N.J. at 364–65).]
The record makes clear the sentencing court was keenly aware of
Graulau's age. The court noted, however, that Graulau had multiple juvenile
adjudications of delinquency.
The sentencing court also emphasized that "this was a heinous crime."
"The victim," the court explained, "who was powerless, an elderly gentleman,
was beaten and kicked. The video was shown to the jury. It was abundantly
clear . . . what was occurring to . . . this victim."
It was appropriate in the circumstances of this case for the court to place
more weight on the brutality of the attack than on defendant's age, especially
considering his history of delinquency. See State v. Hodge, 95 N.J. 369, 378–
799 (1984) ("[T]he severity of the crime is . . . the single most important factor
in the sentencing process."). In view of the nature of the attack viewed in the
context of Graulau's record of juvenile adjudications, we conclude the sentence
imposed does not shock the judicial conscience.
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To the extent we have not already addressed them, any other arguments
raised by Graulau lack sufficient merit to warrant discussion in this written
opinion. R. 2:11-3(e)(2).
Affirmed.
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