STATE OF NEW JERSEY VS. TERRELL HAYWOOD (17-05-1420, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3074-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TERRELL HAYWOOD,
a/k/a TERRELL DURANT,
TERREL HAYWOOD,
ZYON THAGGARED,
Defendant-Appellant.
Argued September 14, 2020 - Decided October 30, 2020
Before Judges Sabatino, Currier, and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-05-1420.
Zachary G. Markarian, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Zachary G.
Markarian, of counsel and on the briefs).
Lucille M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Lucille M. Rosano, of
counsel and on the brief).
PER CURIAM
Defendant Terrell Haywood appeals from his convictions and sentence
following a jury trial. On the second day of trial, a juror informed the court that
her daughter had visited her the prior evening wearing a sweatshirt bearing the
image of the victim who the State alleged defendant had shot and killed. After
questioning the juror about the occurrence, the court declined defendant's
request to excuse the juror. After a careful review of the record and considering
the juror's close relationship with her daughter and the circumstantial nature of
the evidence against defendant, we conclude the incident had the clear capacity
to influence the juror's partiality and it was error not to excuse her. On those
grounds, we therefore vacate the convictions and sentence and remand for a new
trial.
I.
On May 26, 2017, an Essex County grand jury indicted defendant for first-
degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a)(1) (count
one); first-degree murder, N.J.S.A. 2C:11-3(a)(1) (count two); second-degree
unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (counts
three and six); second-degree possession of a handgun for an unlawful purpose,
A-3074-17T2
2
N.J.S.A. 2C:39-4(a) (count four); and second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count five). 1
A.
We derive the facts from the evidence presented at trial. Around 12:30
p.m. on March 18, 2014, Queeson Mitchell was driving with his five-year-old
son on Isabella Avenue in Newark. Isabella Avenue is a one-way street in a
residential neighborhood that intersects with Plymouth Street; the area was
known for narcotics sales.
Queeson saw his friend, Kyrie Reynolds, 2 known to him as "Buckey," with
six or seven other men near a vacant lot at 78 Isabella Avenue, about one house
from the corner of Plymouth Street. Queeson parked his pickup truck on the left
side of the street in front of the lot where Kyrie was standing and went around
to the passenger side – which faced the street – to take his son out of the truck.
After he walked his son to the sidewalk, Queeson returned to the passenger side
of his truck to pick up some belongings.
As Queeson stood at the side of his truck, he heard gunshots coming from
the corner of Plymouth Street and Isabella Avenue and saw two men running
1
An unknown co-conspirator was listed under count one.
2
In some documents, Kyrie is also referred to as "Kharey."
A-3074-17T2
3
down Isabella Avenue toward the group standing on the vacant lot. Queeson
stated one man was running on the street and the other was running along the
sidewalk on the other side of the street.
Queeson testified that the men had slender builds, were dressed all in
black and wearing ninja-style ski masks exposing only their eyes. He observed
one of the men was carrying a gun. Queeson heard "a lot" of "continuous"
gunshots, estimating at least twenty shots. He believed both men were shooting
because he heard two different guns being fired. Everyone ran.
Queeson was shot four times in the right upper arm and shoulder before
he could run from the passenger side of his truck. The guns were still firing
when Queeson stumbled and tripped over Kyrie, who was laying on the ground
behind Queeson's truck, half on the sidewalk and half in the street. Queeson
stated he "tried to get up" and run, but because of the injury to his right arm he
fell again, landing next to Kyrie.
Queeson saw one of the men run around the side of his truck. The man
stood directly over them with a black gun as he fired three or four times at Kyrie.
The man looked at Queeson and then ran with the other man back toward
Plymouth Street. Queeson did not see Kyrie with a gun.
A-3074-17T2
4
Once the assailants departed, the street "got crowded" as more people
came outside to see what had happened. Kyrie's grandmother, who lived nearby,
called 9-1-1 to report the shooting. Police officers responded and observed
Kyrie lying in the street with gunshot wounds. They heard Queeson "screaming"
and looking for his son. Queeson later learned that a man had grabbed his son
when the shooting began and ran toward the backyard of a house to escape. The
boy was not injured.
Emergency medical services responded and transported Kyrie and
Queeson to the hospital. Kyrie was pronounced dead at 12:51 p.m. He had nine
gunshot wounds. Two gunshots that penetrated the right side of the chest and
the abdomen were fatal. Those bullets were recovered from the body. A third
gunshot that penetrated the left buttocks was also recovered from the body.
Kyrie also suffered six perforating wounds to the upper and lower right
thigh, left thigh, left elbow, left forearm and right buttocks. In addition, he had
abrasions to the right knee, the back of the left hand, the right hand near the
wrist and some bruises on the back of the chest.
Queeson suffered four gunshot wounds to his right upper arm. His
humerus bone was severed from his shoulder and required surgery to remove the
damaged bone and insert a cadaver bone as well as metal rods and rings. He
A-3074-17T2
5
underwent numerous additional surgeries and testified he did not have "full
function" of his arm, could not perform physical work, lost his job as a
landscaper, and had permanent scars.
Detective Murad Muhammad of the Newark Police Department (NPD)
Homicide Task Force and Detective Rashon Johnson of the Essex County
Prosecutor's Office (ECPO) Homicide Task Force took formal statements from
Queeson and his son at the hospital. Queeson described the man who shot Kyrie
as five feet, eight inches tall, 175 to 180 pounds, wearing all black clothing and
a mask. He thought the shooter may have had braids or dreadlocks because the
top of his mask was a "little puffy." Queeson could not describe the other
assailant other than he was also dressed in black and wearing a mask. Because
Queeson only observed the second man as he was running away, he could not
tell if he was carrying a gun.
Around 1:00 p.m., after the hospital visit, Muhammad went to Isabella
Avenue with other officers to search for evidence there and on Plymouth Street.
He observed thirty or more spent shell casings on the ground. The shell casings
were on the sidewalk and east and west sides of Isabella Avenue. Two vehicles
had been hit by gunshots.
A-3074-17T2
6
Detectives from the ECPO Crime Scene Unit arrived at the scene around
1:25 p.m. Thirty-eight spent shell casings, one live (whole) bullet and fifteen
whole or fragmented spent projectiles were collected. The fifteen spent
projectiles were found in and around 74, 77, 80, and 85 Isabella Avenue and
inside the two cars.
The officers went door-to-door on Isabella Avenue and Plymouth Street
to attain additional information. Some residents stated they heard gunshots or
saw Kyrie on the ground after the shooting, but no one was able to identify the
shooters.
Muhammad described for the jury his review of the chronology of 9-1-1
calls about the shooting. The first call reporting the shooting was received at
12:28:47 p.m. Muhammad spoke to two callers listed in the chronology, but
they only heard shots fired. No one saw the shooting or could identify the
assailants.
B.
Five weeks after the shooting, on April 26, 2014, Detective Hugo Rebiero
with the Gangs and Organized Crime Unit of the New Jersey State Police (NJSP)
and two detectives with the ECPO Crimes Suppression North Unit 3 were
3
The two other detectives with Rebiero did not testify at trial.
A-3074-17T2
7
patrolling a Newark neighborhood in an unmarked vehicle. The officers were
dressed in civilian clothes and tactical vests identifying them as "State Police."
While on patrol, the officers saw defendant walking on the street to the
left of the officers' vehicle. Defendant was wearing sweatpants and an open
black vest over a dark gray jacket. Rebiero stated he observed a "big bulge" in
defendant's right jacket pocket that "was consistent with . . . a gun." As
defendant crossed the street behind the officers' vehicle, Rebiero turned around
in his seat, looked through the back window and saw the "black handle of a
handgun" protruding from defendant's jacket pocket.
The officers stopped defendant on the sidewalk and Rebiero removed a
handgun – a Springfield Armory 45-caliber semi-automatic – from defendant's
right jacket pocket. The gun's magazine contained nine live rounds. The
detectives also took defendant's cellphone.
The detectives arrested defendant and handcuffed him. While the officers
waited for backup, defendant sat down on the curb and Rebiero read defendant
his Miranda4 rights. Defendant remained silent.
En route to police headquarters, defendant sat in the backseat of the
vehicle next to Rebiero. When defendant asked Rebiero if he was going to jail,
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-3074-17T2
8
Rebiero told him he was. Rebiero then read defendant his Miranda rights for
the second time because defendant "initiated [the] conversation regarding the
case."
Defendant then asked if the officers could "get rid of the gun." Rebiero
believed defendant was asking them to "[g]et rid of the charges and not charge
him." Rebiero told defendant they could not do that and then asked how long
defendant had possessed the gun and who gave it to him. Rebiero testified that
defendant said he had been shot in the arm in January and got the gun afterwards
from an unnamed deceased associate to "protect himself."
The arrest report, prepared and filed by Rebiero later that day, did not
include the second reading of defendant's Miranda rights or defendant's request
for the officers to "get rid of the gun." Rebiero explained he did not include the
information because he did not know, at the time, that the gun would be
connected later to a homicide investigation after ballistics testing.
When asked on cross-examination why he and the other two officers did
not electronically record or contemporaneously transcribe Rebiero's questions
and defendant's answers given while driving to headquarters, Rebiero stated "[i]t
wasn't really practical at the time[]" because he was in the back of the car. In
A-3074-17T2
9
addition, the vehicle was not equipped with an "MVR" 5 and the officers were
not wearing body cameras.
Defendant moved to suppress the statements made to Rebiero on April 26,
2014, arguing the State had not shown he had waived his Miranda rights. The
trial judge denied defendant's motion, finding the statements were voluntarily
made after defendant was advised of his rights.
C.
A total of thirty-eight shell casings and one PMC El Dorado 45-caliber
automatic live round were recovered from Isabella Avenue after the shooting.
A detective from the NPD Ballistics Laboratory testified as a ballistics expert.
He determined the shell casings and live round were deposited at the scene
around the same time but did not know how long the items had been there before
they were collected as evidence.
The ballistics expert concluded that the recovered shell casings and
projectiles were fired from four weapons. A search in the ballistics
identification system revealed that two of the casings matched the gun seiz ed
from defendant. No fingerprints were found on the handgun. The other thirty-
5
MVR is an abbreviation for a motor vehicle recording. State v. Mandel, 455
N.J. Super. 109, 112 (App. Div. 2018).
A-3074-17T2
10
six shell casings recovered from the scene were fired from three different
weapons. The three bullets recovered from Kyrie's body were not fired from the
gun seized from defendant; they were fired from another 45-caliber weapon.
D.
During defendant's arrest, officers seized his cellphone. In April 2014, a
ECPO Detective extracted data from defendant's cellphone and prepared a 726 -
page report listing all of the extracted text messages. For context, the first 9-1-
1 call regarding the shooting was made at 12:28:47 p.m.
The cellphone data revealed defendant sent a text message on March 18,
2014 at 12:31:11 p.m. to someone named "Bruskie," which read: "Nigga with
blue coat done." Kyrie was wearing a blue North Face jacket at the time of his
death.
Cellphone records also showed three phone calls between defendant and
Bruskie near the time of the shooting: Bruskie to defendant at 12:07 p.m.;
defendant to Bruskie at 12:18 p.m.; and Bruskie to defendant at 12:24:04 p.m.
Although police obtained a search warrant for the subscriber information
associated with Bruskie's cell number, they were unable to identify the
subscriber.
A-3074-17T2
11
In addition, an unknown person either called defendant or received a call
from defendant at 12:27 p.m. Another unknown person called defendant at
12:34:54 p.m. for 346 seconds; defense counsel represented the call came from
the Essex County Juvenile Detention Center.
E.
Defendant's girlfriend, Geovana Baltimore, lived on Brookdale Avenue in
March 2014. Defendant stayed at her residence most nights. Baltimore's house
was two blocks from the McDonald's on 18th Avenue, three blocks from Isabella
Avenue and half a block from South Orange Avenue. Defendant's grandmother
and uncle lived on Grove Street in Irvington, one block behind the Garden State
Parkway, in the neighborhood of Isabella Avenue. Defendant received his mail
at this address.
Baltimore recalled meeting with police officers in June 2014 where she
reviewed cellphone records and answered questions regarding her and
defendant's respective cellphones. The records pertaining to her cellphone
number reflected a series of text messages between Baltimore and defendant on
March 18, 2014 spanning from 2:00 p.m. to just before midnight. Baltimore
testified that defendant was not at her house that night.
A-3074-17T2
12
F.
The State produced Meghan Smith who testified she had known defendant
for about six years, called him "Rel" and had purchased heroin from him on "a
regular basis," or "as often as [she] could," for "[a] couple of years at least."
On March 18, 2014, Smith stated she texted and called defendant from her
boyfriend's cellphone to arrange a meeting to buy heroin that day. They often
met at the McDonald's restaurant on 18th Avenue, and Smith recalled arranging
to meet defendant that day in the "late morning, early afternoon[,]" "around
lunch time." The McDonald's was near West End Avenue and South Orange
Avenue. 18th Avenue intersected with Isabella Avenue.
Smith described seeing defendant walk into the McDonald's alone and
wearing "dark gray, almost black, all dark" ski pants, a jacket with a hood and a
black knit hat. She did not know "how he got there" and she did not see where
he went after he left the restaurant. She thought it was around "lunchtime" and
stated the exchange took "no more than five minutes."
Smith stated she was "almost in constant contact" with defendant prior to
their meeting. She confirmed the following series of text messages were sent
between them: Smith to defendant at 10:52 a.m. asking for "three buns"; 6
6
Buns is short for bundles of heroin. Each bundle had ten individual envelopes.
A-3074-17T2
13
defendant to Smith at 10:54 a.m. asking when Smith wanted to meet; Smith to
defendant at 11:00 a.m. stating she was about eight minutes away; defendant to
Smith at 11:01 a.m. telling her to hurry; Smith to defendant at 11:02 a.m. stating
she was on her way; defendant to Smith at 11:09 a.m. asking her where she was;
defendant to Smith at 11:22 a.m. asking again where she was; Smith to defendant
at 11:40 a.m. telling him she had the money and asking him where he wanted to
meet; defendant to Smith at 11:46 a.m. telling her to meet him at the "[s]ame
spot"; Smith to defendant at 12:16:08 p.m. asking where he was; defendant to
Smith at 12:16 p.m. stating he was at McDonald's; Smith to defendant at 12:17
p.m. asking if it was "cool there"; Smith to defendant at 12:39 p.m. stating she
would be there in about ten minutes; and defendant to Smith stating "I'm
waiting" at 12:42:41 p.m.
The following phone calls were also made: defendant to Smith at 11:46
a.m. lasting five seconds; Smith to defendant at 12:23:19 p.m. lasting for ninety -
seven seconds; defendant to Smith at 12:41:57 p.m. lasting for two seconds;
defendant to Smith at 12:42:16 p.m. lasting for one second; and Smith to
defendant at 12:42:53 p.m. lasting for sixty-two seconds. Smith recalled that
she probably placed the last call to defendant when she arrived at the
McDonald's.
A-3074-17T2
14
In sum, the following phone calls occurred: defendant to Smith at 11:46
a.m.; Smith to defendant at 12:23:19 p.m.; Bruskie to defendant at 12:24:04
p.m.; call to or from unknown caller at 12:27 p.m.; call to defendant at 12:35:54
p.m., from the Essex County Juvenile Detention Center; defendant to Smith at
12:41:57 p.m.; defendant to Smith at 12:42:16 p.m.; and Smith to defendant at
12:42:53 p.m.
G.
The State offered Special Agent Ajid David, a member of the Federal
Bureau of Investigation's (FBI) Cellular Analysis Survey Team (CAST), as an
expert in historical cell site analysis. David authored a report in October 2015
regarding the historical cell site analysis and drive test he conducted for this
case. In her opening statement, the assistant prosecutor informed the jury she
intended to produce David as an expert.
During defense counsel's cross-examination of David on his
qualifications, the trial judge called counsel to sidebar and the following
colloquy ensued:
THE COURT: It sounds to me more like cross[-]
examination.
[DEFENSE COUNSEL]: Well --
A-3074-17T2
15
THE COURT: As to the context as opposed to the voir
dire as to his expertise.
[DEFENSE COUNSEL]: It is a field in which he claims
to be and [sic] expert and these questions, really, they
could be asked on cross but they, also, mind the extent
of his so[-]called expertise. But I will be guided by the
[c]ourt.
THE COURT: I don't think so. I'm going to ask you to
please conclude and move on. Take all the time you
want to cross[-]examine.
[DEFENSE COUNSEL]: Okay. The only other thing
for the record I wanted to mention do you intend to ask
Agent David about drive testing?
[PROSECUTOR]: Yes.
[DEFENSE COUNSEL]: Okay. It's my understanding
that the issue of the admissibility of cell site analysis
has not yet been decided by our Appellate [c]ourt.
There is a case pending now. The question of the
admissibility of this type of expertise is open and I'm
not going to object to this witness at least being an
expert and testifying in the area. I do object to him
testifying about drive tests. It . . . just for the record a
drive test is when he drives around and does it some
time much later under different circumstances and has
an opinion about the range of the towers in question.
This is not a settled science. It's not a repeatable
science. And just for the record if the State attempts to
do it I object to that type of expert testimony.
THE COURT: Well, isn't this something that should
have been brought to the [c]ourt's attention long before
now so we all could have addressed the issue and we all
could have been –
A-3074-17T2
16
[DEFENSE COUNSEL]: Yes.
THE COURT: -- prepared to argue and/or make a
ruling?
[DEFENSE COUNSEL]: Yes. I read about it over the
weekend. The drive testing. I was reminded from the
report. Again, I'll be guided by the [c]ourt's thoughts
in this regard.
THE COURT: Well, as far as additional voir dire as to
his qualifications I'm going to cut you off now. I think
you've gone into his qualifications but, then, there's
enough to determine whether or not you want to object
or not object to this person being admitted as an expert.
As far as anything else I'm going to take it as it comes.
[DEFENSE COUNSEL]: Okay, thank you.
David conducted a historical cell site analysis and a drive test to determine
whether defendant's cellphone was used in the general area of the shooting at
the approximate time of the crime. He explained that the cell site analysis only
shows the cellphone's possible location, whereas the drive test provides the
phone's probable location.
David provided the jury with detailed information explaining how he
performed the cell site analysis. We need not repeat the comprehensive
testimony as defendant does not contest the validity of the cell site analysis.
A-3074-17T2
17
In short, David examined call detail records provided by the ECPO that
spanned four weeks before the shooting and two weeks after. In comparing them
to cell tower records, he then mapped the general location of defendant's phone
around the time of the shooting. In 2014, defendant's cellphone carrier – T-
Mobile – kept call detail records for voice calls, text messages and data usage .
Cell site usage, however, was only available for voice calls and some data calls,
but not for text message usage. This meant defendant's text messages could not
be translated into calling events on a map for the historical cell site analysis.
Therefore, David's historical cell site analysis was based only on voice calls.
David informed the jury he generated a report documenting the location
of defendant's cellphone on March 18, 2014, between 11:46:42 a.m. and
12:42:53 p.m., by mapping the tower sectors to which the cellphone connected.
The data was translated onto physical maps that depicted every cell tower
defendant's cellphone communicated with between 11:46:42 a.m. and 12:42:53
p.m. The map showed calls were made in the vicinity of defendant's
grandmother's address and 80 Isabella Avenue – the two addresses David used
when conducting the analysis.
David showed the jury maps depicting the chronological progression of
defendant's cellphone through cell tower sectors from 11:46 a.m. to 12:42 p.m.
A-3074-17T2
18
The map time-stamped 11:46 a.m. showed defendant's cellphone hitting a cell
tower near the Parkway. The map time-stamped 12:07 p.m. showed defendant's
cellphone hitting a cell tower in Newark, north of the previous tower.
The maps time-stamped 12:18, 12:22, 12:23, and 12:24 p.m. showed
defendant's phone was using the north and south sectors of the same tower
located along 18th Avenue and the intersection with Isabella Avenue. For the
reader's reference, at 12:23 p.m., Smith called defendant. At 12:24 p.m., Bruskie
called defendant.
The map time-stamped 12:27 p.m. showed defendant's phone hitting a
tower along South Orange Avenue near the Vailsburg section of Newark, north
of the 18th Avenue/Isabella Avenue tower. As stated, an unknown person either
called defendant or received a call from defendant at 12:27 p.m.
The map time-stamped 12:35 and 12:41 p.m. showed the phone hitting a
tower along Interstate 78 (I-78), in the Weequahic section of Newark, further
south of the previous tower. The map time-stamped 12:42 p.m. showed the
cellphone hitting a tower just north of I-78 in Newark, generally southwest of
the previous tower.
The map time-stamped 12:42 p.m. showed the cellphone hitting a tower
along Clinton Avenue in Newark, southeast of the previous tower.
A-3074-17T2
19
David explained to the jury that historical cell site analysis
"approximate[s] a . . . reasonable coverage area for [a] particular tower and
sector." The expert clarified that although he could show a cellphone
communicated within the area of the sector of a tower on a particular date and
time, he "[could not] say specifically that [a cellphone] was at a particular
address. Only that it's consistent with it being at that address."
Because David was informed the specific location of defendant's
cellphone was important to this case, he also conducted a drive test to establish
the probable location of defendant's cellphone at the time of the shooting by
determining the frequency strength and range of the two cellphone towers near
the crime scene. Contrasting a drive test with historical cell site analysis, David
explained "[a] drive test is not just an estimation of a particular cell site's
coverage[;] it is a true mapping of what the cell site's coverage is[,]" meaning a
more "accurate mapping . . . ."
The expert then explained to the jury how the test was done. A vehicle-
mounted scanner – which was used by cellphone carriers – "reads all the
frequencies and channels [that were] being broadcast throughout the [T-Mobile]
network" and "identif[ies] which areas [were] dominant . . . [or] just usable in a
particular area." The data that is collected by the scanner is then downloaded
A-3074-17T2
20
into software and a map is created depicting the "true" signal strength coverage
for the relevant towers.
David performed a drive test for the two towers near the crime scene in
August 2015, one year and five months after the shooting. The "goal" of the
drive test is "to preserve the network conditions as they were on the day of the
event . . . ." David explained a drive test should, therefore, generally be
conducted no more than a year and a half after an incident has occurred.
Before conducting the test, David examined the tower list and reviewed
the tower orientation for any changes to ensure the network was fundamentally
the same as it was when the crime occurred. He explained the cell sites, antennae
heights and orientations for the towers must be the same as they were at the time
of the crime to conduct the analysis. He concluded he was able to perform the
drive test because the cell sites, antennae heights and orientations for the cell
towers had not changed.
David's drive test focused on the two cellphone towers around the crime
scene and the three calls occurring at 12:23, 12:24 and 12:27 p.m. In addition
to those sites, David drove the scanner around the surrounding towers to ensure
accurate mapping.
A-3074-17T2
21
From the drive test data, David produced a map with shaded areas
illustrating the scanner's readings of the "domina[nt] coverage" area of the
towers. The dominant coverage area depicts the range in which a cellphone
would "most likely" connect to a particular tower and sector and, therefore,
"where [a cell] phone most likely was located as opposed to possibly located."
David conceded signal strength and topography can affect a cell tower's
coverage.
Although David stated he believed the scanner was capable of providing
a "very good depiction of what the true coverage actually is . . . for [the] two
[relevant] sectors" in this case, he recognized there were some limitations to the
drive test, including that he could only drive down streets and had to use
software to measure areas inaccessible by vehicles, such as nearby parks.
Consequently, the scanner measures signal strength while driving down
each street and, utilizing an algorithm that is widely-used in the
telecommunications industry, "interpolate[s]" the outer bounds of the signal
coverage between streets at the edge of the coverage area and in inaccessible
areas like Vailsburg Park. The drive test took six to seven hours to conduct.
Based on the drive test, David found the dominant coverage area was from
the cell tower and site along 18th Avenue and the 12:23 and 12:24 p.m. calls
A-3074-17T2
22
probably occurred within that area. The 12:27 p.m. call probably came from the
dominant coverage area from the cell tower along South Orange Avenue.
On cross-examination, David testified that it was also "possible" that the
12:27 p.m. call fell outside the dominant call areas. He was also unaware
whether there were any buildings that had gone up or come down in the area of
the drive test in the timeframe between the crime and the drive test that might
have affected the signal strength.
H.
On the second day of trial, November 30, 2017, the judge advised counsel
that Juror Two had left a message on his voicemail the prior evening, indicating
she had "inadvertently" received some information about the case. After
excusing the jury, the judge questioned Juror Two in the presence of counsel at
sidebar.
The juror stated her twenty-eight-year-old daughter came to her house the
prior evening wearing a memorial sweatshirt on which was imprinted a
photograph of a light-skinned African-American man and the words "R.I.P.
Buckey."
The juror said it was the first time she had seen her daughter since her jury
service began and she had not told her daughter what type of case she was
A-3074-17T2
23
serving on. The juror said her daughter had her own residence in Newark and
they did not live together. She did not know her daughter's male friends or
whether her daughter knew any members of defendant's family. The juror stated
she had never seen her daughter wear the sweatshirt before. The juror did not
make any comment about the sweatshirt, nor did her daughter and she did not
think her daughter saw her looking at the shirt. The juror did not tell her
daughter she was a juror sitting on Buckey's case and she said she did not discuss
the incident with anyone else, including the other jurors.
The judge instructed Juror Two not to discuss the matter with the other
jurors and let her go out with the other jurors on a recess. Defense counsel
argued Juror Two should be excused because "[i]t appear[ed] that her daughter
must know the trial has begun and knows her mother's a juror and wore the
sweatshirt at the house. There's just too many coincidences here." The
prosecutor disagreed, arguing against the juror's excusal because the juror's
daughter only knew her mother was on jury duty but did not know what type of
case she was hearing, and the juror was "very careful" not to divulge any
information.
Defense counsel also asserted he would have used one of his peremptory
challenges and asked the court to excuse Juror Two had he known during jury
A-3074-17T2
24
selection that her daughter had come to the house wearing the sweatshirt bearing
the victim's name and likeness. Counsel stated "no criminal defense trial lawyer
would ever let a juror remain [on the jury] who has this type of relationship or
his family member had this type of relationship with the decedent [or] the
decedent's friends and family" and his motion "ha[d] nothing to do with the
juror's good faith or bad faith or . . . the timing."
The prosecutor suggested the judge ask the juror some additional
questions to determine if the incident had affected her ability to be fair and
impartial. The court agreed.
The transcript of the second voir dire of Juror Two at sidebar denotes
significant portions as inaudible. However, we can glean from the transcript
that Juror Two remembered the questions asked of her during jury selection
regarding whether she could remain impartial and whether there was anything
that would affect her ability to be impartial; she stated she could remain
impartial despite seeing her daughter's sweatshirt; she had not discussed the
matter with any other jurors; she was "sure" she would be seeing her daughter
again during the trial; she did not believe someone "with knowledge" that she
was a juror on the case encouraged her daughter to wear the sweatshirt; she had
never seen the sweatshirt or her daughter wear a memorial sweatshirt before;
A-3074-17T2
25
she had never heard the victim's name before the trial; and her relationship with
her daughter would not be affected if the juror found defendant not guilty and
her daughter learned of her decision.
After Juror Two left the courtroom, defense counsel reiterated his motion
to excuse her. It appears the judge advised he would take the matter under
consideration and give a decision at a later time. The trial continued through
the remainder of that day with the State presenting three additional witnesses.
The following week, on the next day of trial, December 5, 2017, the trial
court denied defendant's motion to excuse Juror Two, stating:
After extensive questioning at sidebar with both the
[c]ourt and counsel[,] I find [absolutely] no basis for
dismissing her from this jury.
Having had the opportunity to question her at sidebar
again, as well as observe her demeanor while being
questioned[,] I am satisfied that she has not been tainted
by her daughter's wearing a sweatshirt bearing the
victim's image, name, in quotes, "Buckey," close
quotes, as well as the inscription, in quotes, "RIP."
[Juror Two] credibly testified that she had no
discussions with her daughter concerning the sweatshirt
or any possible relationship with the victim or the
incident. And when asked several times by both the
[c]ourt and counsel whether she still could be fair and
impartial and decide this case solely on the evidence
presented in the courtroom[,] she without hesitation
responded, yes. Even when asked by the [c]ourt, even
though it appears that your daughter apparently has
A-3074-17T2
26
some strong feelings about the victim, again, without
hesitation she responded, yes, that she could be fair and
impartial.
Based on all of the aforementioned again, I am satisfied
that [Juror Two] can be fair and impartial and decide
this case solely on the evidence presented in this
courtroom.
And for all of those reasons[,] I find no cause to dismiss
her from the jury.
Juror Two deliberated and reached a verdict on the case.
I.
During the trial, Detective Muhammad testified to his involvement in the
investigation of the shooting. He stated that, before he went to the crime scene,
he took formal statements from Queeson and his son at the hospital during which
they provided descriptions of the suspects.
When the prosecutor asked Muhammad how Queeson had described the
suspects, defense counsel objected on the grounds of hearsay. The following
colloquy occurred:
[DEFENSE COUNSEL]: The question and the answer
. . . elicits a hearsay testimony. The testimony of
someone else. He can say what he did, what he did
next, or what he did as a result of that information. But
he can't testify, I submit, most respectfully, to what
people told him.
A-3074-17T2
27
THE COURT: If it's not offered for the truth[,] he
certainly can.
[DEFENSE COUNSEL]: What is it offered for if not
that it's the truth?
[PROSECUTOR]: How they conducted the
investigation.
THE COURT: And how -- overruled, I'll permit it.
Thereafter, Muhammad testified that Queeson had described the two
shooters as tall black males, wearing dark clothing with scarves and masks
covering their faces. He said that Queeson's son gave the same description.
Neither Queeson nor his son could identify the shooters.
The following month, on April 28, a supervisor from the Newark Ballistics
Department informed Muhammad that defendant had been arrested, and police
had seized from him a weapon that was identified as the gun used to kill Kyrie.
Muhammad learned from the "arresting detectives" that defendant told them he
had possessed the weapon "[s]ince January before the murder of Kyrie . . . up
until the incident of Kyrie . . . ." Defendant further stated to the arresting officers
that he had the gun "[f]or his protection . . . [because] he had been shot." There
was no objection to his testimony. Muhammad learned from police records that
defendant had been shot on January 29, 2012 – two years before the shooting of
Kyrie and Queeson.
A-3074-17T2
28
Muhammad further advised the jury he had reviewed the extraction report
of defendant's cellphone. He found defendant's text message to Bruskie
"significant" to the investigation "[b]ecause of the time and, also, the victim was
wearing a blue coat when he was shot."
J.
During his closing argument, defense counsel relied on a theme of justice
and used the symbol of the "scales of justice" while explaining the State's burden
of proof and the presumption of innocence. He also stated this country did not
recognize "hand me down justice" and that everyone was "guaranteed justice."
In her summation, the assistant prosecutor stated: "You hear about cases
where things happen, no one's ever apprehended. Well, that's what the defendant
and his co-conspirator tried to do . . . . They tried to leave Kyrie Reynolds, his
family without justice."
"And I submit to you that . . . gives you the opportunity to provide justice
in this case. Provide justice to Kyrie Reynolds and his family and Queeson
Mitchell who was shot as a result."
"That's your responsibility, ladies and gentlemen, to find justice in this
case."
And [defense counsel] went through the scales of
justice, the bringing up and the other one crashing
A-3074-17T2
29
down. I submit to you, ladies and gentlemen, the State
has proved to you beyond a reasonable doubt each and
every offense that's listed in the indictment. And I
submit to you that when you look at all the evidence,
you remember all the testimony that was presented to
you, you will find the defendant guilty of all charges.
Defense counsel did not object.
K.
Defendant was convicted on all counts. During the sentencing hearing,
defense counsel did not argue for the imposition of any mitigating factors.
The judge found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (nature
and circumstances of the offenses); three, N.J.S.A. 2C:44-1(a)(3) (risk that
defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of
defendant's prior criminal record and the seriousness of the offenses for which
he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter
defendant and others from violating the law). The judge found no mitigating
factors and determined the aggravating factors "far outweigh[ed]" the non-
existent mitigating factors.
The judge also held defendant was eligible for an extended term as a
persistent offender because he had four prior convictions within ten years of the
present offense while over the age of twenty-one. See N.J.S.A. 2C:44-3(a).
Defendant does not appeal this aspect of the sentence.
A-3074-17T2
30
In addition, the judge imposed consecutive sentences on counts two, five
and six reasoning:
Now, in addition to the findings placed on the record[,]
I also need to place on the record the following: The
[c]ourt's reason for the consecutive sentences imposed,
I find that pursuant to [State v. Yarbough7], specifically
the guidelines contained therein, as well as the
philosophy of that case and that there should be no free
crimes in a system . . . where the punishment fits the
crime.
The aggravated assault of Queeson was a separate and
distinct act of violence resulting from a complete
disregard for the safety of innocent people . . . .
Defendant's actions involved two specific victims,
[Kyrie] as well as [Queeson].
I also find that the unlawful possession of a weapon
charge of April 26th, 2014 is also a separate and distinct
crime or act wholly independent of and unrelated to the
incident that occurred on March 18th, 2014. Reasons
why the [c]ourt elected to impose consecutive
sentences on [defendant].
Defendant was sentenced to life imprisonment with an eighty-five percent
parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2, on count two; a ten-year imprisonment term, with a five-year parole
disqualifier on count three to run concurrently with the murder sentence; an
extended term of fifteen years imprisonment, subject to NERA, on count five,
7
State v. Yarbough, 100 N.J. 627 (1985).
A-3074-17T2
31
to run consecutively to the murder sentence; and a ten-year imprisonment term
with a five-year parole disqualifier on count six to run consecutively to the
murder and aggravated assault sentences for the unlawful possession of a
weapon conviction.
II.
Defendant raises the following issues on appeal:
POINT I
[DEFENDANT] WAS DENIED AN IMPARTIAL
JURY BECAUSE THE COURT REFUSED TO
EXCUSE A JUROR WHOSE DAUGHTER VISITED
HER HOME ON THE FIRST DAY OF TRIAL
WEARING A SWEATSHIRT MEMORIALIZING
THE VICTIM
The Trial Court Violated [Defendant's] Right to an
Impartial Jury by Refusing to Excuse Juror Two,
Whose Interaction with Her Daughter During Trial Had
the Capacity to Influence Her
The Trial Court Denied [Defendant] His Right to an
Impartial Jury by Refusing to Excuse Juror Two
Despite Defense Counsel's Assertion that He Would
Have Exercised a Peremptory Challenge Against Her
During Voir Dire Had He Known of Her Daughter's
Connection to the Victim
POINT II
THE TRIAL COURT FAILED TO PERFORM ITS
GATEKEEPING FUNCTION BY OVERRULING
DEFENSE COUNSEL'S OBJECTION TO THE
A-3074-17T2
32
ADMISSION OF EXPERT TESTIMONY
REGARDING DRIVE TESTING WITHOUT
HOLDING A 104 HEARING TO ESTABLISH ITS
RELIABILITY
POINT III
[DEFENDANT] WAS DEPRIVED OF A FAIR TRIAL
BECAUSE THE TRIAL COURT DID NOT CHARGE
THE JURY REGARDING THE ARRESTING
OFFICERS' FAILURE TO RECORD HIS ALLEGED
STATEMENT MADE DURING CUSTODIAL
INTERROGATION AND PERMITTED HEARSAY
TESTIMONY FROM AN OFFICER WHO WAS NOT
PRESENT DURING THE INTERROGATION TO
CORROBORATE THE ALLEGED STATEMENT
(NOT RAISED BELOW)
The Trial Court Should Have Charged the Jury
Regarding Officers' Failure to Record Their
Questioning of [Defendant]
Detective R[e]biero's Account of the Unrecorded
Interrogation Was Impermissibly Bolstered by Hearsay
Testimony from Detective Muhamm[a]d, Which
Violated [Defendant's] Right to Confrontation
POINT IV
THE PROSECUTOR ELICITED IMPERMISSIBLE
HEARSAY TESTIMONY FROM DETECTIVE
MUHAMM[A]D REGARDING EYEWITNESSES'
DESCRIPTIONS OF THE SHOOTERS, IN
VIOLATION OF [DEFENDANT'S] RIGHT TO
CONFRONTATION
A-3074-17T2
33
POINT V
THE PROSECUTOR MADE AN IMPROPER CALL
TO ARMS IN SUMMATION THAT DENIED
[DEFENDANT] HIS RIGHT TO A FAIR TRIAL
(NOT RAISED BELOW)
POINT VI
THE CUMULATIVE EFFECT OF THE
AFOREMENTIONED ERRORS DENIED
[DEFENDANT] A FAIR TRIAL
POINT VII
DEFENDANT'S SENTENCE IS EXCESSIVE
BECAUSE THE COURT FAILED TO
ADEQUATELY FIND AND WEIGH THE FACTORS
AND DID NOT EXPLAIN ITS REASONS FOR
IMPOSING CONSECUTIVE SENTENCES
A.
We first address defendant's contention that the trial judge erred in not
excusing Juror Two after she revealed her daughter had visited her during the
evening of the first day of trial wearing a sweatshirt memorializing Buckey –
the victim. Defendant asserts the juror's observation of her daughter's sweatshirt
and her knowledge of her daughter's connection to the victim constituted an
"irregular influence" which had the "clear capacity" to impact the juror's ability
to remain impartial.
A-3074-17T2
34
The Sixth Amendment to the United States Constitution and Article I,
paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to an impartial jury during trial. State v. R.D., 169 N.J. 551, 557 (2001).
Criminal defendants are "entitled to a jury that is free of outside influences and
[that] will decide the case according to the evidence and arguments presented in
court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60
(1983).
"The securing and preservation of an impartial jury goes to the very
essence of a fair trial." Ibid. "[I]f during the course of the trial it becomes
apparent that a juror may have been exposed to extraneous information, the trial
court must act swiftly to overcome any potential bias and to expose factors
impinging on the juror's impartiality." R.D., 169 N.J. at 557-58 (citing State v.
Bey, 112 N.J. 45, 83-84 (1988)).
Our Supreme Court recognizes that "the trial court is in the best position
to determine whether the jury has been tainted." R.D., 169 N.J. at 559. The trial
judge must "consider the gravity of the extraneous information in relation to the
case, the demeanor and credibility of the juror or jurors who were exposed to
the extraneous information, and the overall impact of the matter on the fairness
A-3074-17T2
35
of the proceedings." Ibid. We review the court's determinations regarding juror
taint for an abuse of discretion. Ibid.
The parties concluded jury selection on November 14, 2017. The judge
advised the fourteen jurors they had been selected but since the case was not
resuming until November 29, 2017, the judge did not administer the oath to t he
panel. Although the judge did not give the required preliminary juror
instructions, he did tell the jury not to discuss with anyone anything they might
have learned during the selection process and not to do any research regarding
the case.
When the jury returned on November 29, the judge swore them in and
gave the preliminary instructions and counsel gave their opening statements.
The jury heard testimony from Queeson and another witness.
On November 30, the State produced Detective Rebiero and a lieutenant
in the crime scene unit of the ECPO. When the court took a break later that
morning, the judge asked Juror Two to stay behind. He advised counsel he had
learned that Juror Two had left a voicemail the prior evening indicating she had
received some information about the case. The judge and counsel then
questioned the juror twice that day as set forth above. The judge did not excuse
the juror on November 30 nor did he rule on defendant's request to do so. Juror
A-3074-17T2
36
Two stayed for the rest of the day, hearing the testimony of three additional
witnesses.
When the case convened five days later, on December 5, the judge denied
defendant's application to excuse Juror Two. In doing so, the judge stated he
found the juror credible in her assertion that she could be fair and impartial.
We are well aware of the deference accorded to a trial court's exercise of
control over matters pertaining to the jury. And specifically, the trial judge's
discretion to determine whether a juror can be fair and impartial and whether to
excuse a juror for taint.
However, under the unique circumstances presented here, we are
constrained to conclude that the judge erred in not excusing Juror Two. We
cannot accept it was a complete coincidence for the juror's daughter to wear a
sweatshirt memorializing the victim to her mother's home while her mother was
serving as a juror on the panel which would determine the innocence or guilt of
that victim's shooter. The context strongly suggests the daughter would be
displeased if the jury on which her mother served returned a defense verdict – a
displeasure that could affect their future relationship.
We equate these events to a situation where a juror discloses he or she
knows the victim, the defendant or a witness or any family member of those
A-3074-17T2
37
persons. This is a required question during the voir dire of all potential jurors
so counsel and the parties can assess the impartiality of a juror. See Model Jury
Selection Questions (Criminal), "Standard Jury Voir Dire" (rev. May 16, 2007).
As the Court stated in State v. Fortin, 178 N.J. 540, 629 (2004), "We think
it ill-advised, as a general rule, to seat any juror who is acquainted with a murder
victim's loved ones, no matter how convincingly that individual proclaims his
or her ability to remain impartial." Although Fortin was a capital murder case,
we think the Court's following sage comment universally holds true: "It is better
to err in favor of removing a juror where there is evidence of potential partiality
or bias, than to permit that juror to sit in judgment, leaving the fairness of a
capital trial in doubt." Id. at 630.
Here, whether Juror Two personally knew the victim or not, her daughter
or someone known to the daughter, had some connection to the victim to a
degree that compelled the daughter to wear a memorial sweatshirt. That is more
than sufficient reason to disqualify and excuse the juror. Defendant did not
request a mistrial; he only asked the judge to excuse the juror. At the time, there
A-3074-17T2
38
remained one alternate juror. 8 Neither the attorneys nor the judge expressed any
concerns with seating the alternate juror.
Because Juror Two remained on the panel that deliberated to a verdict, her
knowledge of her daughter's actions and potential connection to the victim had
the capacity of influencing the jury in reaching its verdict. See Panko v.
Flintkote Co., 7 N.J. 55, 61 (1951) (holding the test for whether a new trial
should be granted because of an irregular influence is "not whether the irregular
matter actually influenced the result, but whether it had the capacity of doing
so"). We are convinced the failure to excuse the juror requires a new trial.
Although we do not conclude any of defendant's remaining arguments require
reversal, we address his contentions as guidance for the re-trial.
B.
Defendant argues the trial court failed to perform its gatekeeping function
by overruling defense counsel's objection to the admission of David's expert
testimony regarding drive testing without holding a N.J.R.E. 104 hearing to
establish its reliability. This argument lacks merit.
8
The other alternate juror had not returned when the panel convened on
November 29.
A-3074-17T2
39
At the request of the State, David conducted a historical cell site analysis
and drive test using defendant's cellphone records to ascertain the location of
defendant's cellphone at the time of the shooting. He issued a report containing
the details of his investigation, his conclusions of his analysis and attached maps
corresponding to his findings.
Defendant did not challenge the report in any pre-trial application. There
was no objection when the prosecutor told the jury in her opening statement that
David would be testifying as an expert in the field of historical cell site analysis
and would opine as to where defendant's "cellphone was around or at the time
of the homicide." At trial, defense counsel accepted David as an expert in the
field of historical cell site analysis and did not object to him testifying about that
aspect of his report. However, counsel objected to any testimony about drive
testing, stating it was "not a settled science[,]" "not a [reputable] science."
Counsel did not ask for a Rule 104 hearing or give any further reason for
his objection. He stated: "I'll be guided by the [c]ourt's thoughts in this regard."
The court admitted David as an expert in historical cell site analysis as there was
no objection and added: "As far as anything else I'm going to take it as it comes."
There was no further objection during David's testimony regarding the
drive testing. During direct examination, David acknowledged the limitations
A-3074-17T2
40
to the drive test, including: (1) cell tower coverage could be impacted by signal
strength and topography; (2) cell sites, antennae heights and orientations for the
towers must be the same as they were at the time of the crime to conduct the
test; (3) the scanner was designed to be driven down streets and had to use
software for areas inaccessible by vehicle; (4) the test was conducted very close
to the one-and-a-half-year limit for performing the test; and (5) a cellphone may
not connect to the closest tower and several towers could handle one call.
Defense counsel questioned the expert extensively, eliciting concessions
from David that he conducted the testing a year and a half after the shooting,
and that he was unaware whether any buildings had gone up or come down in
that timeframe.
Whether we review defendant's argument for plain error, as the State
contends, or an abuse of discretion, as urged by defendant, we are satisfied it
was not error for the court to allow David's testimony on drive testing. There
was no objection pre-trial or during trial to David's testimony until after the State
tendered him as an expert. Even then, defense counsel did not request a Rule
104 hearing and did not contest David's qualifications. He only stated that drive
testing was not a "settled science." Counsel did not renew his objection, as
invited by the judge, to provide any specific grounds and instead cross-examined
A-3074-17T2
41
David on the basis for his opinions. Defendant did not present his own expert
to dispute the reliability of drive testing.
As a result, on this record, we cannot properly consider defendant's
argument on appeal which seeks a categorical determination on whether drive
testing is reliable and accepted by the scientific community. As stated, under
these circumstances, without an objection supported by specific grounds, the
trial judge did not abuse his discretion in admitting David's testimony.
C.
We consider and reject defendant's assertion that the officers' failure to
record statements he made while riding in the police car on April 25, 2014
violated Rule 3:17(a) and required the trial court to sua sponte charge Model
Jury Charges (Criminal), "Statements of Defendant (When Court Finds Police
Inexcusably Failed to Electronically Record Statement)" (approved Nov. 7,
2005). As defendant did not request the charge, we review his contention for
plain error. R. 2:10-2.
Rule 3:17(a) requires custodial interrogations conducted in a place of
detention to be electronically recorded when the person being interrogated is
charged with certain crimes. A police vehicle is not included in the definition
of a "place of detention." Ibid. Moreover, as the trial judge found, defendant's
A-3074-17T2
42
statements to police were made voluntarily after he was advised of his Miranda
rights. The police were not interrogating defendant; they had not asked him any
questions at all. Defendant made the statements spontaneously.
Because there was no violation of Rule 3:17(a), there was no obligation
for the court to instruct the jury regarding the effect of such a breach. In
addition, defense counsel extensively questioned Detective Rebiero about
defendant's statements and argued to the jury that Rebiero was not credible. The
judge also instructed the jury it was its province to determine whether defendant
made the statements attributed to him and to assess the credibility of the
statements. He stated that in light of "the generally recognized risk of
misunderstanding by the hearer or the ability of the hearer to recall accurately
the words used by the defendant[,]" Rebiero's testimony regarding defendant's
oral, unrecorded statements should be "receive[d], weigh[ed] and consider[ed]
. . . with caution." And, "[i]f after consideration of all of these factors[,] you
determine that the statements were not actually made, or that the statement or
statements are not credible, then, you must disregard[] them completely."
D.
In the course of his testimony, Detective Muhammad told the jury he had
learned from the "arresting detectives" that defendant said "he was in possession
A-3074-17T2
43
of the weapon that he was arrested with . . . [s]ince January before the murder
of Kyrie . . . up until the incident of Kyrie . . . . [The weapon was] [f]or his
protection . . . [c]ause he had been shot." Defendant asserts this was
impermissible hearsay used to bolster Rebiero's testimony. In addition,
defendant asserts the testimony improperly attributed corroboration of
defendant's statement to the other two arresting officers who did not testify at
trial. Defense counsel did not object to the testimony.
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
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. "[I]f
evidence is not offered for the truth of the matter asserted, the evidence is not
hearsay and no exception to the hearsay rule is necessary to introduce that
evidence at trial." State v. Long, 173 N.J. 138, 152 (2002) (citing State v.
Chavies, 345 N.J. Super. 254, 274 (App. Div. 2001)).
In addressing a defendant's right to confront witnesses in the context of a
police officer's hearsay testimony, our Supreme Court has stated it is permissible
for a police officer to testify about "the course of [an] investigation" and the
A-3074-17T2
44
reasons for approaching a suspect or investigating a crime scene when
explaining it was done "upon information received." State v. Frisby, 174 N.J.
583, 592 (2002) (citing State v. Roach, 146 N.J. 208, 224-25 (1996)); State v
Bankston, 63 N.J. 263, 268 (1973) (citation omitted). The explanation is
admissible for the sole purpose of showing "the officer was not acting in an
arbitrary manner or to explain his subsequent conduct." Bankston, 63 N.J. at
268 (citation omitted).
In considering such testimony, the key determinant is whether the hearsay
testimony creates an "inescapable inference" that law enforcement received
information from an unknown source that implicates a defendant. State v.
Branch, 182 N.J. 338, 349 (2005) (quoting Bankston, 63 N.J. at 271). That is,
"both the Confrontation Clause and the hearsay rule are violated when, at trial,
a police officer conveys, directly or by inference, information from a non -
testifying declarant to incriminate the defendant in the crime charged." Id. at
350 (citing Bankston, 63 N.J. at 268-69).
Muhammad's testimony is not inadmissible hearsay because it was not
offered to prove the truth of the matter asserted, i.e. that defendant had the gun
since January 2014. Instead, Muhammad's testimony was admitted for a
permissible non-hearsay purpose to explain the course of the investigation and
A-3074-17T2
45
to show how defendant became a suspect in the shooting. See Carmona v.
Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 (2007); Frisby, 174 N.J. at 592.
Muhammad testified he first learned in April 2014 that "someone had been
arrested with a weapon [that was] used . . . in the demise of [Kyrie]." He then
discovered defendant was the person arrested. The "arresting detectives" told
him what defendant had said during his arrest, specifically that he had the gun
"since January" because he had been shot.
Based on the information from the arresting officers, Muhammad
investigated defendant's claim and "confirm[ed]" defendant had been shot in
January 2012. As a result, Muhammad and other officers considered defendant
a potential suspect based on his statements to police and they conducted further
investigation into defendant's cellphone data, crime scene evidence and whether
there were other individuals with potential information.
Therefore, because Muhammad's testimony here was offered to explain
how defendant became a suspect, not to prove the truth of the contents, it was
not hearsay or a violation of defendant's confrontation rights. Furthermore, the
testimony had little impact as Rebiero told the jury about the statements
defendant made while they were riding in the patrol car. Moreover, Muhammad
was subject to cross-examination and, as stated above, the judge instructed the
A-3074-17T2
46
jury it was their domain to determine whether defendant made the statements
attributed to him and to assess the credibility of the statements.
E.
Defendant raises an additional issue regarding Muhammad's testimony.
He asserts the trial judge erred when he overruled his counsel's objection to
hearsay testimony from Muhammad concerning the description of the assailants
by Queeson and his son. Although we agree the testimony was impermissible
hearsay, we are satisfied its admission was harmless error.
Muhammad testified that Queeson told him the assailants were "[t]all
black male[s]" who wore dark clothing, including scarves and masks that
obstructed their faces. He stated that Queeson's son gave the same description.
However, when Queeson testified, he described the suspect who shot
Kyrie as "about five eight" and may have had braids. He did not testify to the
other suspect's height because he was wearing a mask and Queeson "mostly saw
him running away" after the shooting. Queeson also did not provide the race of
either suspect; he only stated they were wearing black clothing and masks.
Queeson's son did not testify at the trial.
We agree that Muhammad's testimony regarding the descriptions of the
assailants provided by Queeson and his son was hearsay. However, we find the
A-3074-17T2
47
admission of the testimony was harmless error as it did not have the capacity to
produce an unjust result. Muhammad's testimony was subject to thorough cross-
examination by defense counsel. In addition, Muhammad stated that neither
Queeson nor his son identified defendant as an assailant.
F.
We next consider defendant's argument that the prosecutor made an
improper "call to arms" in her closing argument that denied his right to a fair
trial. He refers to the following comments: (1) defendant and his co-conspirator
disguised themselves and took the weapons they used with them to leave Kyrie
and his family "without justice"; and (2) by returning a guilty verdict, the jury
had "the opportunity to provide justice in this case . . . to Kyrie . . . and his
family and Queeson . . . ." As there was no objection during the closing
argument, we review for plain error.
Prosecutors are "expected to make vigorous and forceful" summations,
and they "are afforded considerable leeway" so long as their remarks are tethered
to the evidence presented and the reasonable inferences to be drawn therefrom.
State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559
(1995); State v. Williams, 113 N.J. 393, 447 (1988)).
A-3074-17T2
48
However, a prosecutor may not issue a call to arms – asking the jury to
"send a message" to the defendant and the public, since such statements could
"mislead a jury as to its role and duty," State v. Hawk, 327 N.J. Super. 276, 282-
83 (App. Div. 2000) (citations omitted), "improperly divert jurors' attention
from the facts of the case and intend to promote a sense of partnership with the
jury that is incompatible with the jury's function," State v. Neal, 361 N.J. Super.
522, 537 (App. Div. 2003) (citations omitted), or "imply[] that jurors will violate
their oaths if they fail to convict . . . ." State v. Pennington, 119 N.J. 547, 576
(1990).
Similarly, prosecutors also may not make emotional appeals that have the
capacity to shift the jury's attention away from the evidence. State v. Black, 380
N.J. Super. 581, 594-95 (App. Div. 2005); State v. Lockett, 249 N.J. Super. 428,
434-35 (App. Div. 1991).
In determining whether to reverse a conviction for prosecutorial
misconduct, including improper remarks during summation, we must decide
whether "the prosecutor's misconduct was so egregious that it deprived the
defendant of a fair trial." Frost, 158 N.J. at 83 (citing State v. Ramseur, 106 N.J.
123, 322 (1987); State v. Siciliano, 21 N.J. 249, 262 (1956)). A prosecutor's
A-3074-17T2
49
remarks may be harmless if they are only a response to remarks by opposing
counsel. State v. DiPaglia, 64 N.J. 288, 297 (1974).
If no objection is made, the prosecutor's conduct generally will not be
deemed prejudicial, as the failure to object indicates counsel did not consider
the conduct improper and deprives the trial judge of the opportunity to take
curative action. State v. Echols, 199 N.J. 344, 360 (2009). Here, defense
counsel did not object or request a curative instruction.
We are satisfied there was no impropriety in the prosecutor's comments.
Defense counsel used the symbol of the "scales of justice" to argue the State had
not met its burden of proof. He further asserted the State's case was "like a hand
me down case" and defendant was entitled to more than "[h]and me down
justice" because he was "guarantee[d] justice" like everyone else.
During her summation, the prosecutor responded to defendant's scales of
justice theme. She argued defendant and his co-conspirator "disguised"
themselves with masks and took the weapons they used with them to "go
unapprehended," leaving Kyrie and his family "without justice." The prosecutor
further told the jury that when defendant was not arrested and weeks went by
after the shooting without repercussion, he became "confident" and walked the
streets carrying his gun. She stated that all of the evidence presented against
A-3074-17T2
50
defendant "gives you the opportunity to provide justice in this case," including
defendant's possession of the gun connected by ballistics testing to the one used
in the shooting, his statements to police and the text message sent immediately
after the shooting.
The prosecutor's remarks were not an inappropriate call to arms because
she did not imply the jurors would violate their oaths if they failed to convict,
see Pennington, 119 N.J. at 576, or suggest the jury had a societal duty to
convict, Hawk, 327 N.J. Super. at 282. Instead, the prosecutor urged the jury to
reach a verdict based on the evidence.
Moreover, the trial court instructed the jury that remarks by counsel made
in summation were not to be considered as evidence, the jury should determine
the case based solely on the evidence, the State had the burden of proof and
defendant was entitled to a presumption of innocence. See State v. Smith, 212
N.J. 365, 409 (2012) (holding a prosecutor's improper remarks made during
summation can be cured so long as the trial court "clearly instruct[s] the jury
that the remarks made . . . were not evidence, but argument"); see also State v.
Loftin, 146 N.J. 295, 390 (1996) (citing State v. Manley, 54 N.J. 259, 271
(1969)) (accepting the presumption that juries follow a court's instructions).
A-3074-17T2
51
G.
Although we have vacated defendant's convictions in concluding he is
entitled to a new trial due to the court's error in not excusing Juror Two, for
completeness we briefly address defendant's contentions regarding his sentence.
He argues his sentence is excessive because the trial court failed to properly find
and weigh the N.J.S.A. 2C:44-1 factors and to explain its reasoning for imposing
consecutive sentences. We disagree.
Our review of sentencing decisions is relatively narrow and is governed
by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010).
A sentence will be affirmed "as long as the trial court properly identifies and
balances aggravating and mitigating factors that are supported by competent
credible evidence in the record." State v. Lawless, 214 N.J. 594, 606 (2013)
(quoting State v. Natale, 184 N.J. 458, 489 (2005) (citation omitted)).
We are satisfied there was sufficient evidence in the record to support the
judge's findings on aggravating factors one, N.J.S.A. 2C:44-1(a)(1), three
N.J.S.A. 2C:44-1(a)(3), six, N.J.S.A. 2C:44-1(a)(6), and nine, N.J.S.A. 2C:44-
1(a)(9). There is no support for defendant's argument for the application of
mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11).
A-3074-17T2
52
We also see no merit in defendant's assertion that the court erred in
imposing consecutive sentences. In his determination, the trial judge properly
considered the Yarbough factors and found the murder of Kyrie and aggravated
assault of Queeson were two different crimes against separate victims justifying
consecutive terms. Although defendant's conduct resulting in the convictions
for the murder and aggravated assault occurred at the same time and location
and could be considered a single incident of aberrant behavior, his conduct was
directed at two different people and had separate consequences – Kyrie was
killed and Queeson was severely injured. See State v. Carey, 168 N.J. 413, 428
(2001). Defendant committed two separate acts of violence which resulted in
convictions for distinct crimes. Because there were multiple victims, the court
did not impermissibly double-count the nature and circumstances of the offense
relevant to aggravating factor one in its consideration of the Yarbough factors.
For the reasons stated, we find the trial court erred in the determination
not to excuse Juror Two – an error that violated defendant's right to an impartial
jury and that requires a new trial. We therefore vacate defendant's convictions
and remand for a new trial.
Vacated and remanded for a new trial in accordance with this opinion. We
do not retain jurisdiction.
A-3074-17T2
53