STATE OF NEW JERSEY VS. RAKEEM JOHNSON (16-09-2775, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0187-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAKEEM JOHNSON, a/k/a
JOHNSON RAKEEM, and
ROCK,
Defendant-Appellant.
_______________________
Argued October 19, 2020 – Decided March 1, 2021
Before Judges Currier, Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-09-2775.
Elizabeth Cheryl Jarit, Deputy Public Defender, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; John Douard, Assistant Deputy
Public Defender, of counsel and on the briefs).
Daniel Finkelstein, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Daniel Finkelstein, of counsel and on
the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Rakeem Johnson appeals from the Law Division's August 8,
2018 judgment of conviction of felony murder, robbery, and related weapons
offenses entered after a jury trial, as well as the sentence imposed for those
convictions. We affirm.
I.
The following facts are derived from the record. On December 22, 2015,
Abner Dominguez was shot to death while sitting in the driver's seat of his car
at a Newark intersection. Multiple video cameras recorded the shooting from
different angles. The recordings show a man quickly walking up to Dominguez's
car, opening the front passenger door, putting his left palm against the rear
passenger window, and leaning into the car. Two recordings show a flash of
light in the car, apparently from a gun discharging. The shooter leaves the car
and runs across the street. Dominguez is recorded getting out of the car,
staggering, leaning against the vehicle, and slumping to the ground. He was
pronounced dead shortly thereafter.
An investigating detective determined that Dominguez received a text
message two minutes prior to the shooting from a phone number associated with
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Michael Dutton. The message, "O.M.W.[,]" is commonly understood to mean
"on my way." The detective also uncovered evidence that Dominguez was in
the area intending to purchase more than one hundred Oxycontin pills. Earlier
in the day, a friend gave Dominguez $1900 in cash for the transaction. At the
time of his death, Dominguez had only $530 in cash on his person.
The day after the shooting, the officer received an anonymous tip from
someone later identified as Dutton. The caller stated that he was in the area at
the time of the shooting and saw someone running down the street holding a
revolver. He stated that the man got into a light-colored car. He did not at that
time identify defendant as the man he saw with the revolver.
After determining that the anonymous caller was Dutton, the officer
conducted a consent search of Dutton's home. During an interrogation at the
police station, Dutton identified defendant, who he knew casually from the
neighborhood, as the armed man he saw running from the area of the shooting.
Dutton also identified defendant from a photograph. Dutton consented to giving
his fingerprints, palm prints, and handprints to the detective.
Juan Martinez, who had been living with Dutton and was in the area of
the shooting with him, also identified defendant as the man running from the
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scene carrying a revolver. He identified defendant from a photograph and
agreed to give police his fingerprints and palm prints.
A police officer testified he originally thought Dutton may have matched
the description of the shooter. However, on the night of the shooting, Dutton
was wearing different clothes than the shooter captured in the videos. In
addition, both Dutton and Martinez are much shorter than the shooter captured
in the videos.
On February 8, 2016, defendant went to the prosecutor's office for
questioning. After seeing a sign that read "Homicide Squad," he said "I know
what this is about."
A grand jury indicted defendant, charging him with: first-degree robbery,
N.J.S.A. 2C:15-1; first-degree murder, N.J.S.A. 2C:11-3(a)(1); first-degree
felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree illegal possession of a
handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(a).
At trial, Dutton and Martinez recounted seeing defendant running from
the area of the shooting carrying a revolver. They both identified defendant by
the street name "Dollar." Dutton testified that he knew defendant in passing for
many years and that while he knew the victim, he had never met him. He
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testified that he was aware of Dominguez because he was the best friend of
Martinez and Martinez's paramour, Jennifer Mejiz. Dutton testified that he,
Martinez, Mejiz, and Felix Martinez, Juan's brother, were involved in attempting
to purchase the Oxycontin pills for Dominguez on the night of the shooting.
Dutton testified that he contacted defendant a few days after the shooting
and asked him why he had done "that." According to Dutton, defendant said he
robbed Dominguez because he needed money for Christmas presents. He
testified that defendant said he shot Dominguez "by accident" when the victim
hesitated after being asked to turn over his money and then shot him a second
time when it looked like he was reaching for a weapon.
Detective Christopher Dirocco was qualified as an expert witness in
fingerprint and palm print identification. He testified that he was trained to use
the ACE-V – analysis, comparison, evaluation, verify – method of fingerprint
and palm print identification. He had investigated the crime scene and lifted a
partial palm print from the car's rear passenger window where the shooter had
placed his hand. Dirocco testified that the palm print was placed in a packet and
submitted to the Automated Fingerprint Identification System (AFIS), which
includes a national database of fingerprints and palm prints. According to
Dirocco, palm prints are thought to be unique and he submitted the palm print
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to AFIS to determine if it matched any palm print in the database. Dirocco
testified that an AFIS operator determined that the palm print had forty-five
points of identification in its ridges, curves, and other features, and did not
match any palm prints in the database.
Dirocco also testified that a left palm print was obtained from defendant
and that the detective compared that print to the palm print lifted from the
victim's car. He testified that there was a match between the two palm prints
using the forty-five points of comparison. He testified that he gave the two palm
prints to another detective and obtained an "independent verification" that the
prints matched. The second detective had previously compared the prints taken
from Dutton and Juan Martinez and determined that neither was the contributor
of the palm print left by the shooter on the victim's car.
Defendant objected to Dirocco's testimony about the AFIS operator's
determination that the palm print had forty-five points of comparison and the
results of the AFIS database search. He argued that Dirocco lacked personal
knowledge of those facts. The court held that the testimony was permissible
because Dirocco was describing information on which he relied to reach his
opinion and that information was of the type on which experts in his field
routinely relied.
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The murder weapon was not recovered. A ballistics expert, however,
testified that a revolver fired the bullet and casing recovered from Dominguez's
body and the crime scene.
Defendant elected not to testify. His counsel argued that there was
insufficient physical evidence linking defendant to the shooting to support a
conviction. In addition, he argued that the record contained evidence suggesting
Dutton murdered Dominguez, given that he was the last person to communicate
with the victim, said he was on his way to meet him, was involved in illegal drug
activity with the victim, and was in close proximity to the murder scene at the
time of the shooting.
At the close of the State's case-in-chief, defendant moved for a judgment
of acquittal, arguing there was insufficient evidence on which the jury could find
beyond a reasonable doubt that he committed the crimes charged. The trial court
denied the motion, finding there was ample evidence of guilt of each of the
charges on which the jury could rely.
The jury acquitted defendant of first-degree murder, but convicted him of
first-degree felony murder, first-degree robbery, and the two weapons offenses.
At sentencing, the trial court granted the State's motion for an extended
term pursuant to N.J.S.A. 2C:44-3(d), based on defendant's prior aggravated
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manslaughter conviction. The court found aggravating factors three, N.J.S.A.
2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense;" six,
N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant's prior criminal record and
the seriousness of the offenses of which he has been convicted;" and nine,
N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from
violating the law . . . ." The court found no mitigating factors.
The court merged the robbery and possession of a weapon for an unlawful
purpose convictions into the felony-murder conviction. Having determined the
aggravating factors outweighed the non-existent mitigating factors, the court
sentenced defendant to a life term with a thirty-five-year period of parole
ineligibility for first-degree felony murder. For second-degree unlawful
possession of a weapon, the court sentenced defendant to a twenty-year term of
incarceration with a ten-year period of parole ineligibility to run concurrent to
the sentence for felony murder. An August 8, 2018 judgment of conviction
memorializes the convictions and sentence.
This appeal followed. Defendant makes the following arguments.
POINT I
THE LATENT PALM PRINT LIFTED FROM THE
VICTIM'S CAR WINDOW WAS THE ONLY
PHYSICAL EVIDENCE LINKING [DEFENDANT]
TO THE CRIME SCENE, BUT THE COMPARISON
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OF THE LATENT PRINT WITH THE EXEMPLAR
PRINT OF [DEFENDANT'S] PALM VIOLATED
STANDARDS OF PALM PRINT COMPARISON.
MOREOVER, THE EXPERT'S INACCURATE AND
IMPROPER CLAIM OF A "MATCH" BETWEEN
THE LATENT AND EXEMPLAR PRINT[]
VIOLATED [DEFENDANT'S] RIGHT TO DUE
PROCESS AND A FAIR TRIAL.
A. DIROCCO'S TESTIMONY IMPLIED
THAT HIS CONCLUSIONS WERE FAR
MORE CERTAIN THAN CURRENT
STANDARDS OF SCIENTIFIC ACCURACY
ALLOW.
B. THE DECISION TO USE [FORTY-FIVE]
PALM PRINT FEATURES AS POINTS OF
IDENTITY AND THE PROCESSING OF THE
LATENT PRINT THROUGH THE AFIS
SYSTEM WAS PERFORMED BY AN
OPERATOR WHO FAILED TO TESTIFY.
POINT II
THE JUDGE COMMITTED REVERSIBLE ERROR
IN DENYING THE MOTION FOR A JUDGMENT OF
ACQUITTAL ON ROBBERY AND FELONY
MURDER.
POINT III
THE EXTENDED-TERM MAXIMUM SENTENCES
FOR ILLEGAL POSSESSION OF A HANDGUN
AND FELONY MURDER ARE EXCESSIVE.
A. THE MAXIMUM SENTENCES
IMPOSED WERE NOT SUPPORTED BY A
CAREFUL CONSIDERATION OF THE
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AGGRAVATING AND MITIGATING
FACTORS.
B. FELONY MURDER SHOULD NOT BE
SENTENCED AS SEVERELY AS FIRST-
DEGREE MURDER.
In a pro se supplemental brief, defendant makes the following arguments.
POINT I
PROSECUTION VIOLATED DEFENDANT'S DUE
PROCESS RIGHTS WHEN IT KNOWINGLY
PRESENTED AND ALLOWED ITS WITNESS TO
GIVE FALSE TESTIMONY THAT HE WAS NOT
RECEIVING OR EXPECTING ANY HELP,
PROMISES, FAVORABLE TREATMENT,
LENIENCY OR OFFERS IN EXCHANGE FOR HIS
TESTIMONY AND PROSECUTOR FAILED TO
CORRECT THIS TESTIMONY WHEN IT
OCCURRED WHICH IS CONTRARY TO THE
SIXTH AMENDMENT OF THE UNITED STATES
CONSTITUTION; ARTICLE I[,] PARA. 10 OF THE
NEW JERSEY CONSTITUTION.
POINT II
THE EXPERT TESTIMONY ON THE [FORTY-
FIVE] POINTS OF IDENTIFICATION WAS
IMPROPERLY ADMITTED VIOLATING
DEFENDANT'S RIGHT TO CONFRONT THE
WITNESS AGAINST HIM AND THE COMPARISON
OF THE LATENT PRINT WITH THE EXEMPLAR
OF DEFENDANT'S PALM PRINT VIOLATED
DEFENDANT'S RIGHT TO DUE PROCESS AND A
FAIR TRIAL, U.S. CONST. AMEND. VI, XIV, N.J.
CONST. ART. I[,] PARA. I AND 10.
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(A) DEFENSE COUNSEL MADE AN OBJECTION
TO THE TESTIMONY PUTATIVE FINGERPRINT/
PALM PRINT EXPERT DETECTIVE
CHRISTOPHER DIROCCO.
(B) THE VERIFICATION PROCESS IN THIS
CASE VIOLATED ALL STANDARD OPERATING
PROCEDURES VIOLATING DEFENDANT'S
RIGHT TO DUE PROCESS AND A FAIR TRIAL.
II.
We begin with defendant's multi-faceted challenge to the expert testimony
concerning the palm print match. First, defendant argues that a number of
scientific studies raise doubts about the legitimacy of both palm print matching
as a scientific technique generally and the specific method used by the expert in
this case. Second, defendant argues that Dirocco's testimony was flawed
because he testified that the palm print lifted from the victim's car and the palm
print exemplar taken from defendant "matched." Defendant argues that the term
"matched" suggests precision that is impossible to obtain by using the
comparison method employed by the expert. Third, defendant argues that
Dirocco failed to follow the comparison method he employed because he did not
obtain a true verification of his work from a disinterested second examiner.
Defendant argues that the detective who verified the palm print match may have
had confirmation bias because of his involvement in the investigation of the
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murder and prior determination that the palm print lifted from the car did not
match Dutton and Juan Martinez.
Because defendant did not object to the expert's qualifications or the
admissibility of palm print identification testimony generally at trial, we review
the record under the plain error standard for an error "clearly capable of
producing an unjust result . . . ." State v. Whitaker, 200 N.J. 444, 465 (2009)
(quoting R. 2:10-2). "Not any possibility of an unjust result will suffice as plain
error, only 'one sufficient to raise a reasonable doubt as to whether the error led
the jury to a result it otherwise might not have reached.'" State v. Coclough,
459 N.J. Super. 45, 51 (App. Div. 2019) (quoting State v. Macon, 57 N.J. 325,
336 (1971)).
Even where an objection has been raised, we review a trial court's
evidentiary rulings with deference. State v. Hyman, 451 N.J. Super. 429, 441
(App. Div. 2017). "[T]he decision to admit or exclude evidence is one firmly
entrusted to the trial court's discretion." Est. of Hanges v. Metro. Prop. & Cas.
Ins. Co., 202 N.J. 369, 383-84 (2010). An abuse of discretion is found only
when the court has made a "clear error of judgment." State v. Koedatich, 112
N.J. 225, 313 (1988). The court's evidentiary decision should be sustained
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unless it resulted in a "manifest denial of justice." State v. Perry, 225 N.J. 222,
233 (2016) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
Because defendant did not raise these issues in the trial court, the studies
on which he relies on appeal were not introduced into evidence. The methods
and data used to reach the conclusions stated in the studies were not, therefore,
examined through testimony. The State had no opportunity to cross-examine
the authors of the studies or to introduce evidence supporting the reliability of
palm print identification generally and the specific method of identification used
by the expert. As a result, no record was developed on which we could conclude
that the trial court's decision, in the absence of an objection from defendant, to
permit the expert to opine with respect to palm print matching was error, let
alone plain error.
In addition, defendant had ample opportunity to cross-examine the expert
with respect to the methods he used to reach his opinion. This included the
ability to question the legitimacy of the verification of his opinion by a second
detective, his use of the term "match," and the general reliability of palm print
comparison techniques. Defendant's counsel posed numerous questions to the
expert in an attempt to cast doubt on the validity of his opinion. The jury
apparently decided the expert's testimony was credible.
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Notably, defendant failed to introduce his own expert to challenge the
validity of palm print identification generally or the particular technique used
by the expert. He cannot introduce for the first time on appeal evidence he
believes calls the State's expert's opinion into doubt.
Finally, defendant argues that the court should not have permitted the
expert to testify that the palm print lifted off the victim's car was found to have
forty-five points of identification and was entered into the AFIS database where
no match was found. According to defendant, the expert lacked personal
knowledge of how it was determined that the palm print had sufficient points of
identification and how the conclusion was made that the print did not match any
print in the database.
We agree with the trial court's conclusion that the AFIS operator's points
of identification determination and database search results were facts or data on
which the expert relied in reaching his opinion. They were, therefore,
admissible pursuant to N.J.R.E. 703 for the purpose of evaluating the credibility
of the expert's testimony. Defendant had the opportunity to cross-examine the
expert with respect to the reliability of the AFIS operator's conclusions, his
knowledge of how those conclusions were reached, and whether he took any
steps to verify the facts and data on which he relied.
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III.
We use the same standard as the trial judge in reviewing a motion for
judgment of acquittal at the close of the State's case. State v. Bunch, 180 N.J.
534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety, be
that evidence direct or circumstantial, and giving the
State the 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, 459 (1967).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or
extent (beyond a scintilla) of the evidence, but only with its existence, viewed
most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App.
Div. 1977). "If the evidence satisfies that standard, the motion must be denied."
State v. Spivey, 179 N.J. 229, 236 (2004).
We are satisfied that the evidence in this case, viewed in its entirety and
giving the State all favorable inferences therefrom, was sufficient to allow a
reasonable jury to find defendant guilty of felony murder and robbery.
A homicide is a first-degree felony murder when
[i]t is committed when the actor . . . is engaged in the
commission of, or an attempt to commit . . . robbery
. . . and in the course of such crime . . . any person
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causes the death of a person other than one of the
participants . . . .
[N.J.S.A. 2C:11-3(a)(3).]
"A person is guilty of first-degree robbery, if, in the course of committing a
theft, he . . . [i]nflicts bodily injury or uses force upon another" and "purposely
inflicts or attempts to inflict serious bodily injury, or is armed with, or uses . . .
a deadly weapon." N.J.S.A. 2C:15-1(a) and (b).
The record contains eyewitness and physical evidence linking defendant
to the fatal shooting and robbery of Dominguez. A video shows the victim
getting shot and robbed at gunpoint. The victim was found with more than a
thousand dollars less cash then he obtained from a friend earlier in the day. In
the videos, one can see the shooter's palm touch the car window during the
robbery. Expert testimony linked the palm print lifted from the car to defendant.
Testimony indicated defendant admitted shooting the victim to obtain money
and made an incriminating statement at the police station. Two eyewitnesses
testified that they saw defendant running from the area of the shooting carrying
a revolver. We agree with the trial court that there was sufficient evidence on
which the jury could determine beyond a reasonable doubt that defendant was
guilty of the crimes of felony murder and robbery.
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IV.
Finally, we review defendant's sentence for abuse of discretion. State v.
Pierce, 188 N.J. 155, 166 (2006). We 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 sentence clearly unreasonable so as to
shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
The sentencing court must examine the aggravating and mitigating factors
enumerated in N.J.S.A. 2C:44-1(a) and (b). Each factor found by the court must
be relevant and supported by "competent, reasonably credible evidence." Id. at
72 (quoting Roth, 95 N.J. at 363). The court then must conduct a qualitative
balancing of the factors to determine the appropriate sentence. Id. at 72-73. One
"reasonable" approach is for the court to begin its analysis in the middle range
for the offense at issue and determine whether the factors justify departure above
or below the middle range. Id. at 73 (quoting State v. Natale, 184 N.J. 458, 488
(2005)).
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Our review of the record revealed sufficient support for the trial court's
conclusions with respect to the statutory aggravating factors. Defendant was
previously convicted of aggravated manslaughter. The seventeen-year sentence
imposed on him for that crime failed to deter further criminal activity. These
facts, along with the circumstances of the murder of Dominguez, support each
of the aggravating factors found to be applicable here.
We also see no error in the trial court's conclusion that mitigating factors
were absent. The fact that defendant has a child does not, standing alone,
mandate a finding that mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) ("[t]he
imprisonment of the defendant would entail excessive hardship to himself or his
dependents . . . .") applies. We do not find defendant's sentence to be excessive
or shocking to the judicial conscience.
Defendant's argument that first-degree felony murder should not be
sentenced as severely as first-degree murder is more suitable for submission to
the Legislature than this court. The sentence imposed on defendant is within the
range authorized by N.J.S.A. 2C:11-3. There is no legislative directive that a
court must sentence a defendant convicted of first-degree felony murder to the
lower end of the statutorily-approved range or to a sentence less than would be
applied to a first-degree murder conviction. The trial court's decision to opt for
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the upper end of the sentencing range is justified here by defendant's criminal
history and the circumstances of the offense.
We have carefully considered defendant's remaining arguments, including
those raised in his pro se supplemental brief, and conclude they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant has not established that the State permitted Dutton to commit perjury
during his testimony.
Affirmed.
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