STATE OF NEW JERSEY VS. RHUMEIR D. MONEY (14-03-0691, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-5289-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RHUMEIR D. MONEY,
a/k/a RHUMER MONEY,
and RHUMEIR MONEY,
Defendant-Appellant.
_______________________
Argued May 25, 2021 – Decided July 21, 2021
Before Judges Fisher, Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 14-03-0691.
Timothy E. Burke, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Timothy E. Burke, on the brief;
Tina DiFranco, on the briefs).
Linda A. Shashoua, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Jill S. Mayer, Acting Camden County
Prosecutor, attorney; Linda A. Shashoua, of counsel
and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
After a twelve-day jury trial, defendant Rhumeir D. Money was convicted
of all indicted counts: first-degree murder of Brian Burnett, N.J.S.A. 2C:11-
3(a)(1), (2) (count one); first-degree attempted murder of Jeroboam Fisher,
N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), (2) (count two); first-degree
attempted murder of Carlos Perry, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1),
(2) (count three); second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a) (count four); second-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(b) (count five); and first-degree conspiracy to
commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1), (2) (count six). He
appeals from the judgment of conviction arguing:
POINT I
[DEFENDANT'S] [JUNE 20, 2013] STATEMENT
MUST BE SUPPRESSED BECAUSE THE
DETECTIVES FAILED TO SCRUPULOUSLY
HONOR HIS RIGHT TO REMAIN SILENT.
A. [Defendant] Invoked His Federal
Constitutional and State Common-Law and
Statutory Rights to Remain Silent by
2 A-5289-17
Telling the Detective[s] Who Were
Questioning Him, "[I'm] Not Saying
Nothing."
B. [Defendant's] June 20, 2013 Statement
Must Be Suppressed Because the
Detectives Failed to Scrupulously Honor
His Invocation of the Right to Remain
Silent.
C. Assuming Arguendo, that [t]his Court
Holds [t]hat [Defendant] Did Not Invoke
His Right [t]o Remain Silent, [Defendant's]
June 20, 2013 Statement Must Be
Suppressed Because He Did Not Waive His
Miranda[1] Rights Knowingly,
Intelligently[] [o]r Voluntarily.
POINT II
[DEFENDANT'S] JUNE 21, 2013 STATEMENT
SHOULD HAVE BEEN SUPPRESSED AS THE
"FRUIT OF THE POISONOUS TREE[."]
POINT III
THE TRIAL COURT COMMITTED PLAIN ERROR
BY PERMITTING THE INTRODUCTION OF
INADMISSIBLE HEARSAY STATEMENTS
REGARDING THE IDENTITY OF THE SHOOTER
IN THE STATEMENT AND TESTIMONY OF
JEROBOAM FISHER.
POINT IV
1
Miranda v. Arizona, 384 U.S. 436 (1966).
3 A-5289-17
DETECTIVE KING'S TESTIMONY NARRATING
THE SURVEILLANCE VIDEO WITH HIS OWN
OPINIONS AS TO WHAT THE VIDEO DEPICTED
INVADED THE PROVINCE OF THE JURY AND
USURPED THE JURY'S FACTFINDING ROLE IN
VIOLATION OF [N.J.R.E.] 701 AND
[DEFENDANT'S] RIGHTS TO DUE PROCESS AND
A FAIR TRIAL.
Defendant adds the following points in his pro se brief:
POINT I
[DEFENDANT'S] WAIVER OF MIRANDA RIGHTS
WAS NOT KNOWING OR VOLUNTARY AND HIS
STATEMENT SHOULD BE SUPPRESSED FOR ALL
PURPOSES PURSUANT TO MIRANDA V.
ARIZONA.
POINT II
DEFENDANT WAS DEPRIVED OF HIS SIXTH AND
FOURTEENTH AMENDMENT RIGHTS OF A FAIR
TRIAL AND DUE PROCESS FOR THAT THE
IDENTIFICATION OF DEFENDANT . . . AS THE
SHOOTER BY SHOOTING VICTIM JEROBOAM
FISHER WAS HIGHLY SUGGESTIVE AND AT
BEST TAINTED. THE IDENTIFICATION BY
JEROBOAM FISHER TO DETECTIVES DONL[O]N
AND FISHER SHOULD HAVE BEEN SUPPRESSED
FOR THAT THERE IS A STRONG INDICATION OF
SUGGESTIVENESS.
We previously granted the State's motion to settle the record, R. 2:5-5(a),
because of a discrepancy in the transcript of defendant's video-recorded first
statement to detectives from the Camden County Prosecutor's Office (CCPO)
4 A-5289-17
and Camden Metro Police on June 20, 2013, and remanded for the trial court to
accomplish that settlement. The trial court, without a hearing, "listened to and
viewed the corresponding portion of [the] video and audio recording of . . .
[d]efendant's statement"—during which defendant alleges he invoked his right
to remain silent—and entered an order setting forth its determination of what
defendant said in that contested portion of the interview. The court, however,
did not set forth its findings of fact that led to that determination, as required by
Rule 1:7-4(a), compelling us to, again, remand this matter.
The evening the three victims were shot, one fatally, CCPO Detective
Terry King obtained a description of one of the shooters from eyewitness J.V., 2
who also described the vehicle used in the shooting as a dark-colored Jeep.
Another detective retrieved surveillance video showing a dark-colored Jeep
leaving the area of the shootings. About six hours after the shootings, police
canvassing the area discovered a Jeep similar to the one described and seen on
the video footage. King learned defendant owned the Jeep and had reported it
stolen on the day police discovered it.
2
We use initials to protect the witness's identity.
5 A-5289-17
Four days later, King informed defendant "a concern had surfaced with
his vehicle" and that he needed to speak with him at the CCPO. King drove
defendant to the CCPO because defendant lacked transportation.
King administered Miranda warnings to defendant at the CCPO before he
and Camden Metro Police detective Shawn Donlon took defendant's first
statement during which defendant eventually admitted shooting at the three
victims after one had shot at him. He was arrested. The next day, defendant
was transported back to the prosecutor's office at his request and gave a second
statement. The majority of the second statement was not recorded due to a
"technical difficulty" that caused the recording device to stop while King was
Mirandizing defendant. Both statements were introduced at trial after the trial
court denied defendant's bid to suppress them.
In his suppression argument to the trial court, defendant averred he did
not validly waive his Miranda rights and that the statements were not voluntarily
given. For the first time, on appeal, he argues his first statement should have
been suppressed because he had invoked his right to remain silent.
The pertinent portion of the first statement was the subject of our prior
remand order. Defendant had repeatedly denied he was in the Jeep. He
maintained he was at his girlfriend's house at the time of the shooting, an alibi
6 A-5289-17
he maintained at trial through his girlfriend's testimony. Leading up to that
pertinent portion, the detectives continued their attempt to have defendant tell
them about the shooting:
[KING]: We're trying to give you an opportunity to tell
us what happened, and what your role was. Okay?
Because that does in fact make a difference. That
makes a difference whether you know, you shot ten
times, all that, that makes a difference. That's what
we're—here's an opportunity for you to say, look, this
is what happened. My man was in the—shot in the
back—bang it all, I banged all, it's my bang up,
whatever, it's my bang oh, I don't know. I wasn't out
there in that regard. But I do know what took place.
And you were in that car. You were in your truck.
Here's your opportunity, man.
[DONLON]: Rhumeir, were you defending yourself?
Is—is—tell us what happened?
[KING]: Did somebody shoot at you first? Did
somebody disrespect—what?
[DONLON]: Tell us what happened.
[KING]: Did they—did somebody provoke you? We
know about this war that's going on. We know what
side you're on. We know who your peoples are. And
we know who their peoples are. Was there something
you're trying—did they come at you? I don't know. Did
they see you on the block—you said—what was it over,
man? What happened? That's what we want to know,
what was it over?
7 A-5289-17
According to the certified transcript of the suppression motion hearing,
defendant responded: "I ain't saying nothing. —my shit. There ain't no way
that the system gonna justify nothing. So it don't even matter —[.]" A listening
aid prepared by the State—and provided to the court during the suppression
hearing and to the jury during trial, but not entered into evidence—reports
defendant's response as: "It was nothing. Just going my shit. And nobody ain't
nobody got the system going justify nothing so it don't even matter." The trial
court, pursuant to our remand order, "listened to and viewed the corresponding
portion of that video and audio recording of . . . [d]efendant's statement," and
determined defendant said: "[indiscernible] not saying nothing. Just doing my
shit."
Defendant argues he invoked his right to remain silent which the
detectives ignored when they continued to question defendant and ultimately
obtained his admission during the first statement that he participated in the
shootings as "pay[]back" because Perry had killed one of defendant's "boys";
defendant also told the detectives Perry "shot at me, so I shot back."
The State counters the listening-aid version went unchallenged at the trial
level; defendant waived his claim that he asserted his right to remain silent by
failing to raise that issue to the trial court; the certified version was "a fluke of
8 A-5289-17
transcription"; defendant's "undeniably mumbled and garbled remark was, at
best, unintelligible and far short of the objectively unequivocal invocation that
officers must scrupulously honor"; and "the full context of the record clearly
supports that defendant never, even ambiguously, invoked his right to remain
silent."
Defendant's averred invocation of his right to remain silent is "separate
and apart" from the issue raised to and considered by the trial court: defendant's
knowing, intelligent and voluntary waiver of his Miranda rights. State v.
Hartley, 103 N.J. 252, 260-61 (1986). We typically consider arguments raised
for the first time on appeal under the plain error standard, see R. 2:10-2, under
which "[a]ny error or omission shall be disregarded by [this court] unless it is
of such a nature as to have been clearly capable of producing an unjust result,"
ibid. In a jury trial, the possibility of such an unjust result must be "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. Macon, 57 N.J. 325, 336 (1971).
If defendant invoked his right to remain silent, the admission of one or
both statements at trial may have led to the possibility of an unjust result. That
right "is guaranteed by the Fifth Amendment to the United States Constitution"
and further protected under New Jersey's "common law, now embodied in
9 A-5289-17
statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503." State v. S.S.,
229 N.J. 360, 381-82 (2017) (citation omitted). "The requirement that an
asserted right be scrupulously honored has been carefully guarded in this state
in order to ensure that full opportunity to exercise the privilege is permitted."
Hartley, 103 N.J. at 261. "[I]f after a suspect avails himself of the Constitution's
protections the police violate a right that has been invoked, that violation, by
definition, is of constitutional magnitude." Id. at 273. Any statement taken after
a suspect invokes his right "cannot be other than the product of compulsion,
subtle or otherwise." Ibid. (quoting Miranda, 384 U.S. at 474).
During an interrogation, if a person makes "a request, 'however
ambiguous,' to terminate questioning or to have counsel present[,] [it] must be
diligently honored." Id. at 263 (quoting State v. Kennedy, 97 N.J. 278, 288
(1984)). "Any words or conduct that reasonably appear to be inconsistent with
defendant's willingness to discuss his case . . . are tantamount to an invocation
of the privilege against self-incrimination." State v. Bey (Bey II), 112 N.J. 123,
136 (1988). If the police are unsure if a suspect invoked the right, they must
either "(1) terminate the interrogation or (2) ask only those questions necessary
to clarify whether the defendant intended to invoke his [or her] right to silence."
S.S., 229 N.J. at 383.
10 A-5289-17
Thus, a determination of the exact words used by defendant and an
analysis of those words in context is crucial to determining if the admission of
the statements engendered an unjust result. As we tell jurors: "The specific
words used and the ability to remember them are important to the correct
understanding of any oral communication because the presence, or absence, or
change of a single word may substantially change the true meaning of even the
shortest sentence." Model Jury Charges (Criminal), "Statements of Defendant"
(rev. June 14, 2010).
It appears both parties submitted evidence to the trial court after our
remand. In his merits brief, defendant related that the State submitted to the
trial court "a letter brief and a boxful of materials to consider when settling the
record." After defendant objected and requested an opportunity to respond, he
contends the trial court's law clerk "responded that the [court] would advise the
parties how to proceed." Defendant thereafter
submitted a letter brief to the trial [court], reiterating
his request to be heard and asking the [c]ourt to delay
making a decision until he could move to supplement .
. . the record. [T]he [l]aw [c]lerk again advised the
parties that [the trial court] would instruct them on how
to proceed on the merits.
The parties never received any further direction from
the [c]ourt.
11 A-5289-17
Defendant further asserts he submitted a letter brief and certifications from the
transcriber and her supervisor attesting to the accuracy of the transcript, to which
the State filed a response brief.
As we have noted, the trial court did not afford the parties an opportunity
to argue why one version of defendant's statement was more accurate than
another. And the trial court did not, as it had done throughout the course of this
case, make findings of fact or conclusions of law. See R. 1:7-4(a). We do not
know which, if any, of the parties' submissions it considered, or if it considered
the testimony of King or Sergeant Patricia Taulane, whom the State avers
testified as to the accuracy of the listening aid. Understanding the transcriber
was listening to a recording of a recording played in court, and both parties'
merits briefs point out transcription errors, 3 we do not know why the trial court
rejected the version defendant contends is correct. Understanding the listening
aid was unilaterally prepared by the State, and tacitly or expressly approved for
3
Defendant submits his "statement, 'Then I didn't do nothing[,]' does not appear
in the Miranda hearing transcript. However, [defendant] can be heard saying it
on the DVD at a [specified] time-stamp. . . ." The State contends the transcript
deviates from the listening aid in sections other than that where defendant
contends he invoked his right to remain silent, highlighting the omission of
defendant's statement: "I'm still getting locked up," and the mis-recording of
his statement: "I did that shit off my—I was—got shot at so."
12 A-5289-17
use during the trial, 4 we do not know why the court rejected the version the State
contends is correct.
Under the circumstances, we vacate the trial court's order settling the
record and remand the matter for oral argument on the settlement of the record
followed by a supplemental suppression hearing. The present record is
insufficient to allow us to decide this critical issue. We categorically reject the
State's argument that "[t]he very fact that the phrase has been the subject of so
much armchair debate further diminishes any sense that it was an invocation."
Our remand under Rule 2:5-5(a) was meant to settle a crucial aspect of the record
involving constitutional rights; it was not an "armchair debate."
Once the court determines the exact words uttered by defendant to the
detectives, it must determine whether defendant, by words or conduct, invoked
his right to remain silent. See S.S., 229 N.J. at 382. In determining that issue,
4
Neither party has directed us to any portion of the record showing the court
conducted a hearing to determine the accuracy of the listening aid, although the
State specified in its merits brief portions of King's testimony in which he stated
he reviewed the listening aid "in conjunction with" the recorded statement and
acknowledged the listening aid was "basically accurate." The State also averred
"Sergeant Taulane testified that the listening aid was accurate," but did not cite
to any portion of the record to support that claim. It is incumbent on the party
to support the facts material to the issues with references to the record; it is not
the court's duty to search the record to substantiate a party's contention. See R.
2:6-2(a)(5).
13 A-5289-17
the court must analyze "the totality of the circumstances, including
consideration of the suspect's words and conduct. The . . . statement [must be]
evaluated in the full context in which [it was] made." State v. Maltese, 222 N.J.
525, 545 (2015).
Our Supreme Court has determined that words like those defendant alleges
he used are sufficient to invoke the privilege against self-incrimination. See id.
at 386 (holding suspect invoked right to silence when he stated, "No, that's all I
got to say. That's it"); State v. Johnson, 120 N.J. 263, 281 (1990) ("[A] suspect
who has 'nothing else to say' . . . has asserted the right to remain silent . . . ."
(citations omitted)); State v. Bey (Bey I), 112 N.J. 45, 64 (1988) (holding
privilege invoked where suspect told police "he would have nothing to say").
But, as said, the context and defendant's conduct must also be considered.
The State claims defendant's "undeniably mumbled and garbled remark
was, at best, unintelligible and far short of the objectively unequivocal
invocation that officers must scrupulously honor." While we leave what
defendant said to the remand proceedings, that claim ignores the proper analysis.
It is axiomatic that "a request to terminate an interrogation must be
honored 'however ambiguous.'" Bey I, 112 N.J. at 64-65 (listing a number of
cases standing for that principle). "The suspect is not required to express a
14 A-5289-17
desire to terminate interrogation with the 'utmost of legal precision.'" Johnson,
120 N.J. at 281 (quoting Bey I, 112 N.J. at 65). Suspects "will often speak in
plain language using simple words, not in the parlance of a constitutional
scholar," and so as long as an officer "can reasonably understand the meaning
of a suspect's words, the suspect's request must be honored." S.S., 229 N.J. at
383. "[A]n equivocal indication of a desire to remain silent, like an unequivocal
indication, suffices to invoke Miranda's requirement that the interrogation
cease." Johnson, 120 N.J. at 281 (alteration in original) (quoting Christopher v.
Florida, 824 F.2d 836, 841 (11th Cir. 1987)). The Johnson Court harkened to
its prior decision describing
the standard for police conduct when faced with
ambiguous assertions of Miranda rights:
[W]here a suspect makes a statement which
arguably amounts to an assertion of his
Miranda rights and the interrogating agent
recognizes that the statement is susceptible
of that construction, his questioning with
regard to the crime he is investigating
should immediately cease and he should
then inquire of the suspect as to the correct
interpretation of the statement. Only if the
suspect makes clear that he is not invoking
his Miranda rights should substantive
questioning be resumed.
15 A-5289-17
[Id. at 283 (alteration in original) (quoting State v.
Wright, 97 N.J. 113, 120 n.4 (1984)) (citation
omitted).]
If there was a question as to what defendant said, it was incumbent upon
the detectives to ascertain what it was, especially if defendant said the phrase,
"ain't saying nothing," as set forth in the official transcript and the judge's
remand determination; we, of course, leave the determination of what defendant
said to the trial court after it conducts the record-settlement hearing. Suffice it
to say, an unintelligible record does not mean defendant was unintelligible in
real time.
After determining whether defendant invoked his right to remain silent,
the trial court on remand must also determine if any of defendant's first statement
made prior to or after defendant allegedly invoked his right to remain silent, and
any of defendant's second statement, is admissible. If a defendant invokes his
right to remain silent, but the police continue to question him without
interruption as if nothing had happened, the Court has made clear that "the right
is not scrupulously honored." S.S., 229 N.J. at 384 (quoting Johnson, 120 N.J.
at 282). "The failure of the interrogating detectives to have scrupulously
honored defendant's right to remain silent makes inescapable the conclusion that
16 A-5289-17
defendant's subsequent oral confession had been unconstitutionally compelled."
Johnson, 120 N.J. at 284.
A statement's admissibility "obtained after the person in custody has
decided to remain silent depends under Miranda on whether his right to cut off
questioning was scrupulously honored." Maltese, 222 N.J. at 547 (quoting
Michigan v. Mosley, 423 U.S. 96, 104 (1975)). Factors to consider when
determining whether the right has been scrupulously honored include: (1) how
much time passed after the defendant first asserted his right to remain silent; (2)
whether the defendant received new Miranda warnings before the police
resumed interrogation; and (3) whether a different police officer questioned the
defendant. See ibid. In Hartley, the Court announced a "'bright-line,' inflexible,
minimum requirement" police must follow before resuming a custodial
interrogation after a suspect invokes his right to remain silent: fresh Miranda
warnings must be administered or the defendant's statement "cannot be admitted
into evidence as part of the prosecution's case-in-chief." 103 N.J. at 267.
The trial court's determination of defendant's exact words may impact the
court's prior determination that defendant knowingly, intelligently and
voluntarily waived his Miranda rights. We neither state nor imply that the trial
court's comprehensive oral opinion on the motion to suppress was erroneous.
17 A-5289-17
Although a determination that defendant invoked his right to remain silent may
render moot some issues to be analyzed, the admissibility of any statement made
prior to any invocation still has to be determined, and defendant's exact words
may impact the analysis of defendant's waiver with regard to that—or any—
portion of his statement. See id. at 260 ("[T]he question of waiver is an inquiry
separate and apart from the . . . question [of] . . . whether the defendant's right
to remain silent has been properly respected in the first instance."). The words
used by defendant may or may not indicate his understanding of the rights
previously administered by King. The court should thus revisit that
determination after the record is settled.
The trial court must also determine on remand if the second statement is
inadmissible. Courts exclude "a second confession as the 'fruit of the poisonous
tree' when law-enforcement authorities obtained an initial confession in
violation of the defendant's common-law privilege against self-incrimination."
State v. Johnson, 118 N.J. 639, 652 (1990). If police violated defendant's right
against self-incrimination—rendering the first statement "unconstitutionally
compelled and, under state law, illegally obtained and hence inadmissible[—
]any 'separately-obtained' second statement must be approached with an eye to
determining whether it was the product of a constitutional violation, sometimes
18 A-5289-17
known as the 'fruit of the poisonous tree' doctrine." Hartley, 103 N.J. at 281-82.
A key concern is whether defendant made the statement because he felt "the cat
[was] already out of the bag" as a result of the first statement. Id. at 282.
Under the "fruit of the poisonous tree" doctrine, the admissibility of a
second incriminating statement depends on whether the State established that
the later statement was "not the product of the first" statement "or that the 'taint'
of the first statement was attenuated." Id. at 283. Put another way, "the critical
determination is whether the authorities have obtained the evidence by means
that are sufficiently independent to dissipate the taint of their illegal conduct."
Johnson, 118 N.J. at 653.
When determining whether a second confession is tainted by the first
confession, courts consider the following factors: "the time between
confessions, any intervening circumstances, whether there was a change in
place, whether [the] defendant received an adequate warning of his rights,
whether the defendant initiated the second confession, the effect of his having
previously made a confession, and the 'purpose and flagrancy of police
misconduct.'" Maltese, 222 N.J. at 548 (quoting Hartley, 103 N.J. at 283).
"Ultimately, the determination whether the evidence is the 'fruit' of the illegal
conduct is a factual matter for the court." Johnson, 118 N.J. at 653; see also
19 A-5289-17
Hartley, 103 at 283-84 ("[The factors to be considered] are ordinarily viewed as
questions of fact, to be determined by a trial court after a hearing. And
ordinarily a remand for the purpose of conducting such a hearing and making
findings of fact and conclusions of law would be in order.").
The record is sufficient for us to address the balance of defendant's claims,
to which there is no merit. 5
For the first time on appeal, defendant contends Fisher's trial testimony
and his hospital-bed, recorded statement to King 6 three days after the shooting,
which was played by the State at trial, contained impermissible hearsay that the
trial court should have excluded or cured with instructions. Even a cursory
review of the record scotches defendant's argument.
5
We review defendant's arguments involving trial testimony to which no
objection was made for plain error, but in so doing, we do not apprise the weight
of the evidence against defendant because that evidence—particularly
defendant's statements—is not settled. See State v. Singh, 245 N.J. 1, 13-14
(2021) ("To determine whether an alleged error rises to the level of plain error,
it 'must be evaluated "in light of the overall strength of the State's case."'"
(quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018) (citation omitted)));
see also State v. W.B., 205 N.J. 588, 614 (2011) (A guilty verdict following "a
fair trial, based on strong evidence proving guilt beyond a reasonable doubt,
should not be reversed because of a technical or evidentiary error that cannot
have truly prejudiced the defendant or affected the end result.").
6
Donlon was also present.
20 A-5289-17
When the assistant prosecutor asked Fisher on direct examination "who
was doing the shooting," Fisher began to cry and responded: "I can't do this,
man." When the question was repeated, Fisher said he had a child on the way
and couldn't "go through this right now, man." When the court directed Fisher
to answer the question, he said: "I don't know. I didn't look him in his eye."
The assistant prosecutor continued direct examination by asking Fisher if
he told King in the hospital-bed statement who shot him. The following
colloquy ensued:
[FISHER]: I mean, at the end of the day, I did tell him
a name, but—
[PROSECUTOR]: What was the name that you told
him?
[FISHER]: The name I told him, I'm just going off of
what somebody said. I didn't see the person.
[PROSECUTOR]: What was the name that you told
Detective [King] ?
[FISHER]: What was the name I said?
[PROSECUTOR]: That's the question, sir.
[FISHER]: I said somebody named Reck. 7
7
"Reck" or "Wreck" was a name by which Fisher said he knew defendant.
21 A-5289-17
The assistant prosecutor then showed Fisher the photograph of defendant that
had been used during an identification procedure, leading to this discourse:
[FISHER]: That's the person I said. That's my name,
right? That's what you asked me.
[PROSECUTOR]: Is that your signature on the bottom
of that piece of paper?
[FISHER]: I'm not sure if that's my signature.
[PROSECUTOR]: Well, it's a signature and it's your
name, is that correct?
[FISHER]: Correct.
[PROSECUTOR]: And did you write your name on
that picture?
[FISHER]: Yes I did.
[PROSECUTOR]: On June 18th of 2013, there's a date
there as well?
[FISHER]: Yes.
[PROSECUTOR]: And what does it say at the top of
that photograph?
[FISHER]: The name that I told you, when you just
asked me.
[PROSECUTOR]: Does it say Reck?
[FISHER]: Yeah.
22 A-5289-17
[PROSECUTOR]: And you signed that—did you sign
that photograph because that is the man that you know
as Reck?
[FISHER]: I signed the paper.
[PROSECUTOR]: Did you sign that—the paper
indicating that that is who you know as Reck?
[FISHER]: I personally don't know him, so I can't say
I know him.
[PROSECUTOR]: That you recognize—
[FISHER]: This is what I . . . was just seeing. This is
what I was told, so yes that's him.
[PROSECUTOR]: Is this the person that you recognize
as Reck? Not that you know him personally. I'm not
asking if you know him personally.
[FISHER]: I'm telling you just the name, this is the
name that I got, this is the name that I told [King]. This
is my signature, and this is the date I put.
[PROSECUTOR]: And are you signing that saying that
is the name that you know as Reck?
[FISHER]: I can't—
[PROSECUTOR]: Wasn't that your reason for signing
and dating that picture?
[FISHER]: No. This was—like I said, it came to me
already.
[PROSECUTOR]: That's not what I'm asking you, sir.
23 A-5289-17
[FISHER]: I'm telling you. I'm trying to give you my
answer. This is—when they came to me already, I just
signed my name here.
[PROSECUTOR]: But you gave the name Reck to
Detective [King]?
[FISHER]: Yeah. I said that's what I heard, yeah.
That's what I gave him. All he did was Reck.
[PROSECUTOR]: And did Detective [King] then show
you the photograph?
[FISHER]: Already, yeah, from Reck before he started
asking me questions he had this photo up. Yes.
[PROSECUTOR]: And did he ask you is this the man
that you know as Reck? Is this who you know as Reck,
the person in this picture?
[FISHER]: I told him that I don't know. That's why I
told him check these names out.
When Fisher's direct examination resumed two weeks later, the assistant
prosecutor again questioned defendant about the statement he gave to King:
[PROSECUTOR]: During your statement to Detective
[King], did you tell him—
[FISHER]: Yes.
[PROSECUTOR]: —what you did on June 15th—
[FISHER]: Yes.
[PROSECUTOR]: —2013?
24 A-5289-17
[FISHER]: Yes.
[PROSECUTOR]: And about what you and Brian and
Carlos did that day?
[FISHER]: Yes.
[PROSECUTOR]: And did you give a description of
what happened out there with regard to seeing the Jeep?
[FISHER]: Yes.
[PROSECUTOR]: More than once?
[FISHER]: Yes.
[PROSECUTOR]: And did you give a description of
the shooting and how it went down?
[FISHER]: Yes.
[PROSECUTOR]: And did anyone promise you
anything in exchange for your statement that day? Did
anyone threaten you or coerce you?
[FISHER]: Nobody threatened me. I just was told the
name of who shot me.
[PROSECUTOR]: Say that last part again.
[FISHER]: I said nobody threatened me or forced me.
I was just told the name of who shot me while I was in
the hospital and I told [King].
[PROSECUTOR]: And what was the name that you
told [King]?
[FISHER]: The name?
25 A-5289-17
[PROSECUTOR]: The name—
[FISHER]: That I told [King]?
[PROSECUTOR]: Yes.
[FISHER]: It was Reck.
[PROSECUTOR]: Reck?
[FISHER]: Yes.
[PROSECUTOR]: Do you know how to spell that?
[FISHER]: I had spelled it W-R-E-C-K.
[PROSECUTOR]: Okay. And prior to June 15th of
2013, did you know a person who is called Reck?
[FISHER]: No, I didn't. But Carlos did.
Defense counsel objected and the trial court instructed the jury to "disregard the
indication from the witness that Carlos Perry knew or advised him of the identity
of the shooter as Reck." Fisher then confirmed his stance that prior to the
shooting he did not know of anyone called Reck.
The assistant prosecutor then questioned Fisher about his identification of
defendant's photograph. Defendant confirmed he signed the bottom of the photo
and wrote "Wreck" and another name he had previously identified as the name
26 A-5289-17
defendant used when he was Fisher's Facebook friend, "Shootin Shxt." 8 When
asked why he wrote the names, Fisher replied, "Because that's . . . what was told
to me. Like—this is how I knew his name and everything." When asked why
he wrote "shooting, S-H-X-T," this exchange followed:
[FISHER]: To—like when I told [King] the name and
he asked me did I know him, and I told him no, but you
can look him up through this. That's his Facebook
name. That's what I wrote that for. And he said can
you write it down. I wrote it down for him.
[PROSECUTOR]: If you didn't know him, how did you
know what his Facebook name was?
[FISHER]: Because when I was in the hospital—Carlos
got shot in his leg, so he got released early. He came
to visit me and explained to me everything, the
situation, why it happened.
Defense counsel again voiced a hearsay objection. After a sidebar conference,
the judge instructed the jury:
All right, members of the jury, I'm . . . allowing for the
objection, the statement from this witness where he said
Carlos explained what happened. But then after that the
witness said something to the effect of, and he
explained why it happened. And I'm going to ask you
not to consider that at all in your deliberations. That . .
. is hearsay which would be offered for its truth. It's
8
The transcript of Fisher's statement provided in defendant's appendix spells
the name written by Fisher as "Shootin shit." We do not see the photograph
listed in the index to defendant's appendix, so we do not know the reason for the
discrepancy.
27 A-5289-17
barred and you're not to consider it at all in your . . .
deliberations. The witness—this witness saying,
Carlos explained why it happened.
The assistant prosecutor was not eliciting hearsay testimony from Fisher.
She was trying to elicit what Fisher had previously told King: during the
shooting, he saw defendant's face; he had seen defendant numerous times during
the year prior to the shooting and knew defendant as a Facebook friend and from
parties at which defendant was known for his dancing. Fisher also identified
"Reck" as the shooter, detailing defendant's movements prior to the shooting and
verified his statement by signing a photograph of defendant. When asked how
sure he was that the photograph was that of Reck, Fisher told King, "That's him."
Fisher had told King, "I'll remember that face though, that's him."
At trial, Fisher recanted his prior statements and identification of
defendant as the shooter. And defendant made great use of that recantation by
the only State's witness who identified defendant at trial. Defendant did not
object. See Macon, 57 N.J. at 341 ("[F]ailure to object may suggest the error
was of no moment in the actual setting of the trial."). Indeed, his counsel elicited
from Fisher during cross-examination he was "given a name" and that name was
Reck; Fisher did not say who gave him the name.
28 A-5289-17
Fisher's recantation caused the State to move to have his hospital-bed
statement admitted as substantive evidence under N.J.R.E. 803(a)(1). In a ruling
not challenged by defendant, the trial court, in a comprehensive oral opinion,
analyzed the State's proffer under the pertinent factors set forth in State v. Gross 9
and admitted the statement. Although defendant agreed that gang references
should be redacted, he did not object to the portions of the statement he now
claims were inadmissible hearsay:
In his recorded statement, Fisher told detectives that,
seconds before the shooting began . . . Burnett looked
at the Jeep and said, "yeah . . . that Reck[]"; and that he
had heard that Reck and . . . Perry may been (sic)
involved in "a beef in Parkside," but that he and . . .
Burnett "didn't have anything to do with it."
The full context of those statements must be analyzed. King asked Fisher if
Perry or Burnett 10 said anything as the Jeep approached them. The following
ensued:
[FISHER]: Well B said, he said yeah um, that's Reck.
[KING]: Ok.
[FISHER]: (inaudible)
9
121 N.J. 1 (1990).
10
In the statement, Perry is referred to as Sadik, Taneek or Deek and Burnett as
B or B-Noise.
29 A-5289-17
[KING]: So, I'm asking, I'm asking what so does B, and
Taneek know, know um Reck also?
[FISHER]: No, B know him.
[KING]: Ok, but
[FISHER]: No.
[KING]: but Deek cause he,
[FISHER]: but just like we don't know him, know him,
like
[KING]: But,
[FISHER]: go (inaudible)
[KING]: But he know him, ok.
The entire colloquy about the "beef in Parkside" was:
[KING]: I know. Did you have a problem with him
before this?
[FISHER]: Huh?
[KING]: Did any, did you have a problem with him
before this?
[FISHER]: I don't know, I don't know if it's they got
something going on but I know that me and the other
boy.
[KING]: didn't have anything to do with it.
[FISHER]: No.
30 A-5289-17
[KING]: Or,
[FISHER]: (inaudible) won't do anything.
[KING]: Or do, do you know about if like if it's a beef
or something going on between? Anywhere?
[FISHER]: I heard like a beef in Parkside and
(inaudible) but I don't know.
Defendant did not object during or after the tape was played for the jury.
During summation, defense counsel argued by the time Fisher gave his
hospital-bed statement, "the streets were talking," and Fisher obtained "a lot
more information [about the shooting] tha[n] he had on the day of the incident."
Counsel pointedly told the jury "[s]omebody gave him the name Reck" and that
Fisher testified in court he did not know defendant, "that he just, he made that—
the stuff in the statement was untrue. He didn't know [defendant]."
Defendant not only acquiesced to the now-claimed error, he invited it.
Generally, under the invited-error doctrine, such choices cannot be appealed.
State v. A.R., 213 N.J. 542, 561 (2013). "[I]f a party has 'invited' the error, he
[or she] is barred from raising an objection for the first time on appeal." Ibid.The doctrine bars trial errors that defendant "induced, encouraged or acquiesced
in or consented to" as grounds for reversal. State v. Harper, 128 N.J. Super.
270, 277 (App. Div. 1974); see also State v. Munafo, 222 N.J. 480, 487 (2015).
31 A-5289-17
"The invited-error doctrine is intended to 'prevent defendants from manipulating
the system' and will apply 'when a defendant in some way has led the court into
error' while pursuing a tactical advantage that does not work as planned." State
v. Williams, 219 N.J. 89, 100 (2014) (quoting A.R., 213 N.J. at 561-62).
Moreover, we do not discern that the admission of the hearsay statements,
individually or cumulatively, was plain error "clearly capable of producing an
unjust result," R. 2:10-2; see also State v. Whitaker, 200 N.J. 444, 465 (2009),
particularly when that hearsay played a central role in the defense. "Trial errors
which were induced, encouraged or acquiesced in or consented to by defense
counsel ordinarily are not a basis for reversal on appeal." Harper, 128 N.J.
Super. at 277; see also A.R., 213 N.J. at 561. The Court recently "cautioned that
'rerun[ning] a trial when the error could easily have been cured on request[]
would reward the litigant who suffers an error for tactical advantage either in
the trial or on appeal.'" Singh, 245 N.J. at 13 (alterations in original) (quoting
State v. Santamaria, 236 N.J. 309, 404 (2019)). Again, the State did not seek to
elicit what others told Fisher; that evidence undermined its case, specifically
Fisher's identification of defendant from his hospital bed. We also note the court
twice struck Fisher's testimony about what Perry said. Further, although in his
statement Fisher said Burnett identified Reck in the Jeep and that Burnett knew
32 A-5289-17
him, he qualified the identification by saying "but just like we don't know him,
know him, like"; and Fisher never implicated defendant in the "Parkside beef."
The jury was given an opportunity to assess Fisher's hospital-bed
statement and his trial testimony and determine which version was credible. The
trial court cogently instructed the jury, mentioning Fisher by name, on prior
inconsistent statements, recanting witness statements including those giving
statements under police interrogation, and pending criminal charges. The jury
was fully apprised on how to assess Fisher's credibility. The court also
instructed the jury on Fisher's identification of defendant.
Under the circumstances, absent defendant's objection and tactical use of
the hearsay to aid his defense, the admission of the hearsay statements was not
"sufficient to raise a reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached." Macon, 57 N.J. at 335-36 ("No
matter how a test may be stated, the question whether an error is reason for
reversal depends finally upon some degree of possibility that it led to an unjust
verdict."); see also State v. Melvin, 65 N.J. 1, 18-19 (1974). Likewise,
defendant's failure to request a curative instruction regarding Fisher's testimony
about what Perry told him—other than those given by the trial court—supports
that he planned to use the evidence to his advantage or he viewed any error "was
33 A-5289-17
actually of no moment." State v. Yough, 208 N.J. 385, 400-01 (2011) (quoting
Macon, 57 N.J. at 333).
We also apply the plain error standard to defendant's argument, raised for
the first time on appeal, that King violated N.J.R.E. 701 and invaded the jury's
province by narrating "grainy [video] footage culled from the surveillance
camera located across the street from the incident," twice depicting a Jeep, and
opining it was the same Jeep, registered to defendant, police later recovered near
the crime scene, depriving him of his rights to due process and a fair trial.
Defendant avers King's "opinion testimony was on an ultimate issue to be
determined by the jury, to wit, whether [defendant] was involved in the
homicide," and "was improper because the narration was not based on . . . King's
contemporaneous perception of the actual event; it was based on his subjective,
post-hoc review of the surveillance video."
Defendant did not object to King's trial testimony. We thus will reverse
only if the testimony was "clearly capable of producing an unjust result." R.
2:10-2. "An evidentiary error will not be found 'harmless' if there is a reasonable
doubt as to whether the error contributed to the verdict." State v. J.R., 227 N.J.
393, 417 (2017). Moreover, the "prospect that the error gave rise to an unjust
result 'must be real [and] sufficient to raise a reasonable doubt as to whether [it]
34 A-5289-17
led the jury to a verdict it otherwise might not have reached.'" Ibid. (alterations
in original) (quoting State v. Lazo, 209 N.J. 9, 26 (2012)).
We first note defendant argues that King narrated the surveillance video.
The video, however, was not played during his testimony. In the only portion
of the record cited by defendant in support of this argument, the assistant
prosecutor asked King his purpose in having the recovered Jeep police towed;
King responded: "Once we looked at the surveillance videos and matched
them—compared them to the actual vehicle competent [sic] that this was the
actual vehicle used in the shooting, I applied for a search warrant."
The admissible testimony leading up to that statement offers context.
King had testified that he viewed the surveillance video and obtained a
description from an eyewitness of the vehicle used in the shooting. Referencing
a map of the crime-scene area, King described police efforts to canvass the area
that resulted in finding "the vehicle fitting the description parked near [the crime
scene], that matched the description of the vehicle that was seen in the video."
King described the recovered vehicle as a "dark-colored box, older-model Jeep
Cherokee," he found was registered to defendant. He explained he had crime-
scene detectives photograph the Jeep "[j]ust for identification purposes, in terms
35 A-5289-17
of comparing it to the video surveillance . . . ." He then testified why he had the
Jeep towed. He also testified defendant had reported the Jeep stolen.
The Court's recent review of the applicable law explained the difference
between lay opinion and "fact testimony." Singh, 245 N.J. at 14-16. Lay
opinion under N.J.R.E. 701 "can be admitted only 'if it falls within the narrow
bounds of testimony that is based on the perception of the witness and that will
assist the jury in performing its function.'" Id. at 14 (quoting State v. McLean,
205 N.J. 438, 456 (2011)). The first of the rule's prongs "requires the witness's
opinion testimony to be based on the witness's 'perception,' which [']rests on the
acquisition of knowledge through use of one's sense of touch, taste, sight, smell
or hearing.'" Ibid. (quoting McLean, 205 N.J. at 457). "The second requirement
of N.J.R.E. 701 is that lay-witness opinion testimony be 'limited to testimony
that will assist the trier of fact either by helping to explain the witness's
testimony or by shedding light on the determination of a disputed factual issue.'"
Id. at 15 (quoting McLean, 205 N.J. at 458). The Court reiterated "'[f]act
testimony has always consisted of a description of what the officer did and saw,'"
and that "'an officer is permitted to set forth what he or she perceived through
one or more of the senses.'" Ibid. (quoting McLean, 245 N.J. at 460).
36 A-5289-17
Applying those tenets, the Court ruled a detective's testimony that the
sneakers worn by the perpetrator of a robbery depicted in surveillance footage
were similar to sneakers worn by the defendant when he was arrested, see id. at
8, "was proper lay opinion testimony under N.J.R.E. 701," id. at 17-18. Like
defendant, the defendant in Singh argued the detective's "statement as to the
similarity between the two was improper because the sneakers were admitted
into evidence, and the jury was capable, having seen the surveillance video, of
comparing the sneakers in evidence to those on the video" and "admitting [the
detective's] testimony as lay opinion testimony was therefore improper because
the detective was in no better position to evaluate the similarity between the
sneakers than the jury." Id. at 19. The Court disagreed, holding N.J.R.E. 701
does not require the lay witness to offer something that
the jury does not possess. Nor does it prohibit
testimony when the evidence in question has been
admitted, as it was here. . . . We decline to write such
an additional requirement into that rule of evidence.
[Ibid.]
The Court noted the detective had seen the sneakers the defendant was
wearing when he was arrested. Id. at 20. Because the detective had also seen
on the video surveillance footage what defendant was wearing, "his lay witness
opinion as to the similarities between the sneakers from the surveillance footage
37 A-5289-17
and the sneakers he saw that night was rationally based on his perception." Id.
at 19-20. The Court also recognized the detective's testimony was helpful to the
jury; based on his "first-hand knowledge of what the sneakers looked like" when
the defendant was arrested, he "permissibly testified" the sneakers looked alike.
Id. at 20.
The Court rejected the same arguments defendant now makes:
Simply because the jury may have been able to evaluate
whether the sneakers were similar to those in the video
does not mean that [the detective's] testimony was
unhelpful. Nor does it mean that [the detective's]
testimony usurped the jury's role in comparing the
sneakers. Indeed, the jury was free to discredit [the
detective's] testimony and find that the sneakers in
evidence were dissimilar to those on the surveillance
video.
[Ibid.]
Notably, King first testified the recovered vehicle "fit" or "matched" the
description of the Jeep—an older, dark-colored model with a box shape—not
that the recovered Jeep was that seen in the video. He had the vehicle
photographed so that it could be compared to the surveillance video; he did not
summarily conclude it was the same vehicle.
Nevertheless, like the detective in Singh who saw both the surveillance
footage and the defendant's sneakers, King viewed the surveillance footage and
38 A-5289-17
the recovered Jeep. His testimony was based on his perceptions and aided the
jury—particularly since, as defendant contends, the video was "grainy"—thus
satisfying both of N.J.R.E. 701's prongs.
As in Singh, the jury had the surveillance video and stills taken from that
footage and could compare them with the recovered Jeep. It was left to the jury
to decide if they were the same or similar. Again, the surveillance video was
not played when King described what he had seen; he was not narrating what
was depicted in the footage. Moreover, King did not testify as to the ultimate
issue: that defendant had shot the victims. See ibid. In fact, King never testified
defendant was in the Jeep when the shooting occurred or that defendant fired the
shots. It was left to the jury to link the Jeep to the shooting, defendant to the
Jeep at the time of the shooting and defendant to the actual shooting. The jury
also considered that the recovered Jeep was found in close proximity to the crime
scene—a fact used by defendant in arguing in summation that if defendant had
shot the victims, he would not have parked the Jeep so close to the crime scene,
suggesting "whoever brought that Jeep back to that area didn't care whether or
not it was located by the police because they didn't have a tie-in to that Jeep"—
and that defendant had reported the Jeep stolen. The ultimate issue was left to
the jury.
39 A-5289-17
As such, we do not conclude King's brief testimony: "Once we looked at
the surveillance videos and matched them—compared them to the actual vehicle
competent [sic] that this was the actual vehicle used in the shooting, I applied
for a search warrant," resulted in plain error. To be sure, his jumbled statement
"competent that this was the actual vehicle used in the shooting" can be taken as
suggestive of defendant's guilt. But viewed in the context of his entire testimony
it was not "clearly capable of producing an unjust result." R. 2:10-2.
In a pro se supplemental brief, defendant argues, again for the first time
on appeal, that his identification by Fisher from a single photograph shown by
King was unduly suggestive, particularly when Fisher did not identify defendant
three days prior when shown eight photographs at a separate identification
procedure.
Defendant's argument ignores the fact that prior to being shown the single
photograph of defendant, Fisher told King he knew "Reck" and explained to
King how he knew him from his in-person and Facebook encounters during the
year prior to the shootings. Defendant concedes in his merits brief that Fisher
told the detectives "that he knew Wreck/Reck for about a year or so, and had
seen him several times during that period. He also informed these investigators
40 A-5289-17
that shortly after he was shot, and while still in the hospital, he had noticed that
Wreck/Reck[']s [F]acebook profile had changed to 'Shootin Shxt.'"
Identification was not an issue in the case until Fisher recanted his
statement to King at trial. To that point, Fisher's identification was
confirmatory. As the Court explained,
[a] confirmatory identification occurs when a witness
identifies someone he or she knows from before but
cannot identify by name. See, e.g., National Research
Council, Identifying the Culprit: Assessing Eyewitness
Identification 28 (2014) ("Confirmatory Photograph:
Police will, on occasion, display a single photograph to
a witness in an effort to confirm the identity of a
perpetrator. Police typically limit this method to
situations in which the perpetrator is previously known
to or acquainted with the witness."); Sides v.
Senkowski, 281 F. Supp. 2d 649, 654 (W.D.N.Y. 2003)
("parties knew each other previously"). For example,
the person may be a neighbor or someone known only
by a street name. See Identifying the Culprit, at 22.
[State v. Pressley, 232 N.J. 587, 592-93 (2018).]
Such identifications are "not considered suggestive." Id. at 592.
Defendant did not request a pretrial hearing to challenge Fisher's
identification and did not object to its admission at trial. The admission of
Fisher's identification was not plain error under the standard we have here oft-
repeated. The jury was apprised of both Fisher's identification and his
recantation, and it was instructed on how to assess that identification.
41 A-5289-17
Although defendant claims Fisher did not select his photograph from the
eight he was shown, the record does not support that averment. The CCPO
supplemental report prepared by the detective who conducted that procedure,
appended to defendant's pro se brief, does not identify whose photographs were
shown to Fisher. Indeed, in his brief, defendant states "the record does not
reflect . . . King showing the photographic display. Please extract from the
record." And the State asserts defendant's photograph was not among those
shown to Fisher. It points to King's trial testimony that two fingerprint matches
other than defendant's were lifted from the Jeep, prompting King to order two
photo arrays generated that included those two persons. Those displays were
shown to Fisher; he was unable to identify anyone in either array as being
involved in the shooting. Nothing in the record, however, shows that defendant's
photograph was included in any array shown to Fisher.
Because the issue was not raised to the trial court, the record is not
sufficiently developed to allow review of defendant's argument. As such we
decline to consider it. State v. Robinson, 200 N.J. 1, 20 (2009). The same holds
true for defendant's cryptic argument "that there was never an orgin [sic] as to
where these detectives had produced photograph from . . . ."
42 A-5289-17
In his amended pro se letter brief, defendant argues the trial court "failed
to adhere to the procedure for imposing a discretionary consecutive term,"
improperly weighed the aggravating and mitigating factors and imposed an
excessive sentence.
After mergers, the trial court sentenced defendant to forty-five years,
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the first-
degree murder of Burnett (count one), concurrent to a seven-year sentence with
forty-two months of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-
6(c), for second-degree unlawful possession of a firearm (count five), and a
fifteen-year sentence, subject to NERA, for first-degree conspiracy to commit
murder (count six), but imposed a consecutive fifteen-year sentence, subject to
NERA, for the first-degree attempted murder of Fisher (count two).
We "review sentencing determinations in accordance with a deferential
standard. [In our review, we] must not substitute [our] judgment for that of the
sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). Our duty is to
assure that the aggravating and mitigating factors found by the court are
supported by "competent credible evidence in the record." State v. Roth, 95 N.J.
334, 364 (1984). As directed by the Court, we must (1) "require that an exercise
of discretion be based upon findings of fact that are grounded in competent,
43 A-5289-17
reasonably credible evidence"; (2) "require that the factfinder apply correct legal
principles in exercising its discretion"; and (3) modify sentences only "when the
application of the facts to the law is such a clear error of judgment that it shocks
the judicial conscience." Id. at 363-64. Applying a deferential standard of
review to the court's sentencing determination, we find no error in the court's
identification and balance of the "aggravating and mitigating factors that are
supported by competent credible evidence in the record." State v. O'Donnell,
117 N.J. 210, 215 (1989); see also State v. Grate, 220 N.J. 317, 337 (2015).
The court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the
"nature and circumstances of the offense" and defendant's role therein, including
whether the crime was "committed in an especially heinous, cruel or depraved
manner"); three, N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will reoffend);
and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterrence), and determined, "on
a qualitative as well as quantitative basis," they "clearly, convincingly and
substantially outweigh[ed]" mitigating factors three, N.J.S.A. 2C:44-1(b)(3)
("defendant acted under strong provocation"); five, N.J.S.A. 2C:44-1(b)(5) (the
victim induced or facilitated the commission of the crime); and seven, N.J.S.A.
2C:44-1(b)(7) ("defendant has no history of prior delinquency or criminal
activity or has led a law-abiding life for a substantial period of time" leading up
44 A-5289-17
to the present crime). The trial court fully complied with Rule 3:21-4(g)
pointing to specific facts supporting its determination of the aggravating and
mitigating factors.
The court based aggravating factor one on the evidence that this was "a
planned and premeditated attack on three defenseless victims carried out by the
defendant and accomplices" with a specific target—Perry—and that "at least
[seventeen] shots were fired . . . on a busy street in Camden at approximately
6:38 p.m." on a mid-June day. The court also considered that Burnett—who was
not the intended target—was struck three times and killed, and Fisher and Perry
were each struck once.
In finding aggravating factor three, the trial court followed our Supreme
Court's guidance that "[a] court's findings assessing . . . the predictive
assessment of chances of recidivism . . . involve determinations that go beyond
the simple finding of a criminal history and include an evaluation and judgment
about the individual in light of his or her history." State v. Thomas, 188 N.J.
137, 153 (2006). The trial court noted defendant's statement that his actions
were impelled by his belief that Perry had killed his friend and had shot at
defendant. The court also considered that defendant had "implied that he was
justified in taking this action as a payback, and he was not concerned about the
45 A-5289-17
fact that the two people standing near . . . Perry, the target, were also struck by
bullets and that one died," and that defendant was "not remorseful." The court
further explained "[t]he extremely violent nature of the defendant's actions here,
including the callous involvement of bystanders in the shooting attack, support
the proposition that there is a high risk that the defendant will re-offend in a
similar way."
The evidence supporting the high risk found by the court prompted it to
also find there was a "correspondingly great" need to deter him and "other
people inclined to engage in the same manner of street violence." Thus the trial
court followed the Court's directive that a determination of factor nine involves
not only "a 'qualitative assessment' of the risk of recidivism, but 'also involve[s]
determinations that go beyond the simple finding of a criminal history and
include an evaluation and judgment about the individual in light of his or her
history.'" Fuentes, 217 N.J. at 78 (alteration in original) (quoting Thomas, 188
N.J. at 153). The trial court pointed to specific facts supporting its conclusion
that there was a need to deter both defendant and the general public from
engaging in future criminal behavior. See id. at 78-79; see also State in the
Interest of C.A.H. & B.A.R., 89 N.J. 326, 337 (1982) (determining that
"demands for deterrence are strengthened in direct proportion to the gravity and
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harmfulness of the offense and the deliberateness of the offender"); State v.
Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991) (recognizing a defendant's
lack of remorse as one of the many reasons supporting aggravating factor nine).
The court admeasured "heavy weight" to aggravating factor one and "high
weight" to three and nine "together." The court declined to find aggravating
factor six, N.J.S.A. 2C:44-1(a)(6) (the extent of "defendant's prior criminal
record and the seriousness" of his convicted offenses).
In finding mitigating factors three and five, the trial court gave "defendant
the benefit of the doubt that he received some credible information" that Perry
had killed his friend and shot at him. The court accorded "low weight" to those
factors in that those "incidents apparently had occurred months in the past" and
"could not reasonably be expected to have had a significant effect on the
defendant at the time of the defendant's offense in the present case." The court
also found mitigating factor seven but gave it "low weight" noting defendant's
single 2012 juvenile adjudication and defendant's age—eighteen years old—at
the time of the crimes. The court also considered defendant's age but gave it
"low weight, considering in the end he was an adult" when he shot at and killed
or injured the victims.
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We discern no abuse in the court's finding of the applicable sentencing
factors and its weighing of those factors; the court well explained its reasoning
and based its findings on competent record evidence.
We likewise find no abuse in the trial court's decision to impose a
consecutive sentence for the attempted murder of Fisher.
In State v. Yarbough, 100 N.J. 627, 643-44 (1985), superseded by statute
in part, N.J.S.A. 2C:44-5(a), as recognized in State v. Cuff, 239 N.J. 321 (2019),
our Supreme Court established factors that a sentencing court must consider
when deciding whether to impose consecutive sentences:
(1) there can be no free crimes in a system for which
the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;
(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of
violence or threats of violence;
(c) the crimes were committed at different
times or separate places, rather than being
committed so closely in time and place as
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to indicate a single period of aberrant
behavior;
(d) any of the crimes involved multiple
victims;
(e) the convictions for which the sentences
are to be imposed are numerous
(4) there should be no double counting of aggravating
factors;
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense[.]
See also State v. Torres, __ N.J. __, __ (2021) (slip op. at 32, 34) (instructing
trial courts "performing the Yarbough fairness assessment must be mindful that
aggravating and mitigating factors and Yarbough factors, as well as the stated
purposes of sentencing in N.J.S.A. 2C:1-2(b), in their totality, inform the
sentence's fairness" which "cannot be divorced from consideration of the person
on whom it is imposed. . . . Assessing the overall fairness of a sentence requires
a real-time assessment of the consequences of the aggregate sentences
imposed").
The court carefully reviewed each of the Yarbough factors and recognized
they, particularly factor three's subparts, should be applied qualitatively, not just
quantitatively, and consecutive sentences may be imposed even though a
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majority of the subparts support concurrent sentences. State v. Carey, 168 N.J.
413, 427-28 (2001).
The court found the crimes "were not predominantly independent of one
another because all of the offenses relate to a single shooting episode lasting
less than one minute, approximately" and they were not "committed at different
times or separate places"; confirmed it was "taking care" to avoid double-
counting the aggravating factors; and was "mindful" to "avoid double[-]counting
where the basis for convictions is the existence of multiple victims." It also
considered the murder and two attempted murders involved separate acts of
violence resulting in three victims being shot, and defendant faced sentencing
on six convictions with sentences imposed on four counts after mergers that
included the attempted murder of the third victim, Perry. The court also set forth
the weight it gave to each of the factors.
The trial court acted within its discretion in imposing the consecutive
sentence. Notably, the court was "mindful of the real time consequences of the
aggregate sentence," imposing just one consecutive sentence notwithstanding
that there were three victims and multiple counts, and imposed midrange
sentences for each of the consecutive sentences. See State v. Abdullah, 184 N.J.
497, 515 (2005) (instructing trial courts to consider the fairness of the overall
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sentence). We see no reason to disturb the trial court's sentence which properly
evaluated the Yarbough factors. See State v. Miller, 205 N.J. 109, 129 (2011).
The court's thoughtful sentencing analysis, based on competent, credible
evidence, resulted in an aggregate sixty-year sentence for a murder and two
attempted murders.
In the final analysis, we will not second-guess or intervene in a trial
judge's sentencing decision if the sentence was imposed in accordance with the
sentencing laws and guidelines. State v. Jabbour, 118 N.J. 1, 5-6 (1990). The
judge imposed an entirely appropriate sentence well within the bounds of
accepted legal principles. The sentence does not shock the judicial conscience.
See O'Donnell, 117 N.J. at 215-16.
Lastly, we are unpersuaded by defendant's Rule 2:6-11(d) argument that
the enactment of N.J.S.A. 2C:44-1(b)(14) requires reversal because "[t]he trial
[court's] concession that he would give 'low–low' consideration, if any, to
[defendant's] age was inconsistent with the statute."
When defendant was sentenced in May 2018, a defendant's age was not
an independent mitigating factor. The additional mitigating factor implemented
by the Legislature provides a trial court may consider that a "defendant was
under [twenty-six] years of age at the time of the commission of the offense."
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N.J.S.A. 2C:44-1(b)(14). The Legislature did not address whether the
amendment adding mitigating factor fourteen should be given retroactive
application, but it provided an effective date of October 19, 2020. The effective
date evidences the Legislature's intent that the law should be applied
prospectively. See State v. J.V., 242 N.J. 432, 435 (2020); Pisack v. B & C
Towing, Inc., 240 N.J. 360, 370-71 (2020).
We further note the trial court found defendant's youth as a mitigating
factor. Thus, we reject defendant's contention that the Legislature's enactment
of the new statute, N.J.S.A. 2C:44-1(b)(14), requires reversal.
To the extent not here addressed, we determine defendant's remaining
sentencing arguments to be without sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed in part; the trial court's order settling the record is vacated and
the matter is remanded for a hearing to address that issue and for the trial court's
reconsideration, based on the results of that hearing, of its decision with regard
to defendant's motion to suppress his statements. We do not retain jurisdiction.
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