State of New Jersey v. Michael Langston ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3437-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL LANGSTON,
a/k/a ROYCE WEAL,
MICHAEL LANGSTON, JR.,
ROYCE WEA JOHN DOE,
ROYCE AKA WEAL, and
ERIC SIMMONS,
Defendant-Appellant.
_________________________
Argued March 6, 2024 – Decided November 8, 2024
Before Judges Accurso, Vernoia and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 20-01-0050.
Nadine Kronis, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer Nicole Sellitti,
Public Defender, attorney; Nadine Kronis, of counsel
and on the briefs).
Regina M. Oberholzer, Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Attorney General, attorney; Regina M. Oberholzer, of
counsel and on the brief).
The opinion of the court was delivered by
VERNOIA, J.A.D.
Defendant Michael Langston appeals from his convictions for aggravated
assault and possessory weapons offenses and aggregate sixteen-year sentence.
He claims the court erred by allowing two witnesses to identify him at trial as
the perpetrator of the offenses, failing to properly instruct the jury on the
inherent unreliability of in-court identifications, depriving him of his right to
confront witnesses against him, and imposing an excessive and otherwise
incorrect sentence. Having considered the record, the parties' arguments, and
the applicable legal principles, we affirm defendant's convictions, vacate his
sentence, and remand for resentencing.
I.
The charges against defendant arise out of an October 14, 2019 incident
on State Street in the City of Camden. Although conflicting versions of what
occurred were presented at trial, there is no dispute there was a physical
altercation on the street during which Joe Carrillo was shot in the back. Carrillo
later reported the shooter had also pointed a handgun at his cousin, Hassan
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Payne. Defendant was at the scene of the altercation. When police arrived in
response to a report of a shooting, defendant was present, injured, required
medical attention, and was taken by police to the same hospital where Carrillo
had been transported for the gunshot wound.
Within three hours of the shooting, police had identified defendant as the
suspected shooter and conducted separate photo-array identification procedures
with Carrillo and Carrillo's girlfriend's son, Naim Jackson, who had also been
present during the incident. Carrillo's identification procedure took place at the
hospital. Jackson's identification procedure took place at the Camden Police
Department Administration building.
Different detectives, neither of whom had knowledge of the investigation
or defendant's identification as a suspect, conducted the procedures. During the
separate procedures, Carrillo and Jackson each selected defendant's photograph
from the arrays and identified him as the shooter. The documents associated
with the presentation of the arrays reflect the identification procedures had been
recorded, but the State was later unable to locate the recordings.
A grand jury returned an indictment against defendant charging him with:
second-degree aggravated assault of Carrillo, N.J.S.A. 2C:12-1(b)(1) (count
one); fourth-degree aggravated assault of Carrillo by pointing a handgun at him,
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N.J.S.A. 2C:12-1(b)(4) (count two); fourth-degree aggravated assault of Hassan
Payne by pointing a handgun at him, N.J.S.A. 2C:12-1(b)(4) (count three);
possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count
four); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count five);
unlawful possession of hollow-point bullets, N.J.S.A. 2C:39-3(f)(1) (count six);
third-degree receiving stolen property, a handgun, N.J.S.A. 2C:21-7(a); and
second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1).
Prior to trial, defendant moved to suppress Carrillo's and Jackson's out-
of-court identifications during the photo-array procedures on the day of the
shooting. The court conducted a Wade/Henderson 1 hearing on the motion.
Camden County Police Department Detective Brian Ford testified about his
administration of the photo-array to Jackson, Carrillo testified concerning the
photo-array identification procedure that had been administered to him; and
Camden County Police Department Detective Andrew Einstein testified about
his involvement in the investigation of the shooting, his assembly of the
photographs for inclusion in the separate photo arrays, and his interactions with
1
United States v. Wade, 388 U.S. 218 (1967); State v. Henderson, 208 N.J. 208(2011). A Wade-Henderson hearing is a pretrial hearing at which the court
assesses the reliability of eyewitness identification procedures to determine the
admissibility of a witness's identification of a defendant. See generally
Henderson, 208 N.J. at 288-96.
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the detectives who had conducted the photo-array identification procedures with
Carrillo and Jackson.
Carrillo testified he had seen the person—defendant—who had shot him
prior to the incident on numerous occasions. More particularly, he explained he
had seen defendant walking past his home "every other day" and previously had
said "hi or whatever" to defendant as he had passed by. Carrillo testified he had
seen defendant "over [thirty]" times prior to the incident.
The prosecutor asked Carrillo if he saw in the courtroom "the person who
[had] shot him . . . ?" Defendant did not object to the question. Carrillo
responded in the affirmative, and the prosecutor asked, without objection, if
Carrillo could point out the person and describe what the person was wearing.
Carrillo then made an in-court identification of defendant, pointing at defendant
and describing what he wore.
Following the presentation of the testimony and after hearing argument,
the court reserved decision and later rendered a detailed and thorough opinion
from the bench. After briefly describing the circumstances giving rise to the
shooting, the court noted defendant had satisfied the threshold for a hearing on
the admissibility of the out-of-court identifications because the State was unable
to locate the recordings of the photo-array identification procedures, see State
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v. Anthony, 237 N.J. 213, 228-29 (2019), and that defendant therefore bore the
burden of demonstrating a very substantial likelihood of irreparable
misidentification to bar admission of the identification under the standard
directed by our Supreme Court in Henderson, 208 N.J. at 289.
The court then summarized the testimony of the witnesses presented and
found each to be credible. The court found the State had established there had
been no flaws in the system variables pertinent to a determination of whether
the photo-array procedures had been suggestive. See id. at 289-90. The court
concluded the evidence demonstrated "two properly administered arrays" and
"absolutely no misconduct on the part of law enforcement." The court further
found the out-of-court identifications were the product of "[e]ight randomly
sequenced photos that were in two arrays that were administered by detectives
not involved in the investigation." The court further observed that Carrillo and
Jackson had not been told that defendant was included in the arrays "nor
influenced in their selection of the photos identifying defendant."
The court further addressed the estimator variables pertinent to a
determination of the reliability of an identification procedure under Henderson.
Id. at 291-92. The court made findings as to the estimator variables and
concluded "on both a qualitative and quantitative basis, the[] factors ultimately
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weigh heav[ily] in favor of [the] reliability" of the out-of-court identifications.
The court concluded that defendant therefore had failed to prove even a
"likelihood of irreparable misidentification, let alone a substantial likelihood of
one" that is required under Henderson. Id. at 289. The court denied defendant's
suppression motion and the matter proceeded to trial.
Carrillo testified at trial that on October 14, 2019, he had been sitting on
the porch of his State Street home with his fiancée and his cousin, Hasan Payne.
He had seen "[a] group of guys walking up the street," "starting trouble with
people." More particularly, Carrillo testified a group of "about five" guys had
approached his neighbor, whom he knew as "Boo-Boo," as if they were going to
"jump" him. Payne then followed the group up the street to prevent them from
"jump[ing]" Boo-Boo, and when Payne returned, the same group had followed
and then surrounded him.
According to Carrillo, during an ensuing physical altercation between the
members of the group, and him and Jackson, he observed a "guy pull a gun out"
from his hoodie and point it at Payne. Carrillo testified he believed Payne's "life
was in danger," so he "spinned" [sic], "took the bullet" in his back and
simultaneously "punched the [shooter] and knocked him out."
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When asked for clarification, Carrillo explained he had spun around and
had been shot in the back while punching and knocking out the shooter. He also
explained that after he had been shot, he "had two of [his] neighbors put" the
revolver that had been used to shoot him "in the flowerpot to give it to the
police." Carrillo also testified the shooter—defendant—remained unconscious
until police arrived at the scene and transported defendant to the same hospital
at which he was treated for the gunshot wound.
At trial, the State did not ask Carrillo about his prior identification of
defendant during the photo-array identification procedure that had been the
subject of the Wade/Henderson hearing. And he did not otherwise mention the
procedure or that prior identification of defendant. The prosecutor instead asked
Carrillo if he saw the person who had shot him "in the courtroom today?"
Carrillo replied in the affirmative and identified defendant by pointing at him.
Defendant did not object to the prosecutor's question or to Carrillo's in-court
identification.
Jackson testified at trial that he is the son of Carrillo's fiancée and lived
with his mother and two sisters, Carrillo, and Payne on State Street. He further
testified he had been present when the shooting occurred. Jackson explained
that a group had surrounded Payne, a fight ensued, and he and Carrillo had
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"stepped into it." He testified that a man wearing a blue hoodie shot Carrillo
and the shooter's face "was messed up" and bleeding after the fight. Jackson
testified he had seen the gun "[f]or a quick moment" and the shooter had held it
in his right hand. He also testified, "I saw him pull out the gun and shoot"
Carrillo.
When asked if he saw in the courtroom the person who had fired the shot,
Jackson without objection responded in the affirmative. Asked to point out the
person who had fired the shot, Jackson made an in-court identification of
defendant, again without objection.
On cross-examination, defense counsel asked Jackson what
"observations" he had made of the shooter's face. Jackson said he could not
remember. Defense counsel also asked Jackson about a statement he had
provided to Detective Einstein about the incident, suggesting Jackson had told
the detective he had not seen defendant's face at the time of the shooting.
Jackson replied that he did not recall saying that to the detective and testified he
"did see [defendant's] face" during the shooting. Detective Einstein was not
called to testify at trial and the purported statement referred to by defense
counsel during cross-examination was not admitted in evidence.
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Former Camden County Police Department Officer Robert Stires testified
that on October 14, 2019, he was dispatched to State Street and when he arrived
at the scene there was "commotion everywhere" and an "unidentified woman"
"flagged [him] down" saying "the gun's over here" while pointing to a flowerpot.
Officer Stires "took the firearm" back to his patrol car and "emptied out the
ammunition . . . and [a] spent shell casing." He then returned to the scene to see
if anyone had been injured. Seeing that an individual had been shot, he
transported the injured person, who other evidence established was Carrillo, to
the hospital.
The State also presented evidence that the police had collected defendant's
clothing after transporting him to the hospital. The right sleeve of a long-sleeved
shirt defendant had worn later tested positive for gunshot residue.
The State also presented evidence that the gun that had been recovered
from the flowerpot contained one discharged round of ammunition and other
live rounds of ammunition. In addition, the State presented evidence that the
surface of the gun, including its handle, barrel, and trigger had been swabbed
for DNA.
Forensic scientist Katheryne Meakim testified defendant was the source
of DNA that had been recovered from the gun. When asked for clarification
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about what she had meant in stating defendant was the "the source" of the DNA,
Meakim testified:
The source is our threshold of identity. When we're
willing to say it is the source, we feel the profile is rare
enough that we don't expect anyone else in the
population to have the same profile. Studies have been
done to determine that threshold. World population is
about [seven] billion, so the threshold is set at [seven]
trillion. So, statistically, we would need the population
of a thousand earths to be able to expect to see this DNA
profile to occur a second time.
Defendant called his son, Rayquan Morton, as a witness. Morton testified
he had asked his father to walk with him down State Street because defendant
had feared Morton would be jumped. Morton explained that as they walked past
Carrillo and others, a fight started. According to Morton, while "everybody was
fightin[g,]" "a baldheaded guy with glasses on" went into a house, returned to a
porch, and shot at him. He testified he saw another person "trying to shoot" and
had heard two shots fired by the bald man, one of which grazed him as he fled
the scene on foot. Morton testified that he was wearing a blue coat but could
not remember what his father had worn that day. Morton therefore
acknowledged that defendant was present at the scene and participated in the
fight during which Carrillo had been shot.
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The jury convicted defendant of second-degree aggravated assault on
Carillo (count one) but found defendant not guilty of fourth-degree aggravated
assault by pointing a handgun at Carrillo (count two). The jury found defendant
guilty of aggravated assault by pointing a handgun at Payne (count three),
possession of a weapon for an unlawful purpose (count four), unlawful
possession of a weapon (count five), and, following a separate trial, certain
persons not to possess a weapon (count eight). The jury found defendant not
guilty of unlawful possession of hollow-nose bullets (count six). At the State's
request the court had dismissed count seven, receiving stolen property, during
trial.
At sentencing, the court found aggravating factors three, the risk that
defendant will re-offend, N.J.S.A. 2C:44-1(a)(3); six, the extent and seriousness
of defendant's offense history, N.J.S.A. 2C:44-1(a)(6); and nine, the need to
deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The
court found mitigating factor eight, defendant's conduct was the result of
circumstances unlikely to reoccur, N.J.S.A. 2C:44-1(b)(8). The court denied the
State's motion to impose an extended term pursuant to N.J.S.A. 2C:44-3, even
though defendant otherwise qualified as a persistent offender under subsection
(a) of the statute.
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The court merged defendant's conviction for fourth-degree aggravated
assault by pointing a handgun at Payne (count three) with his conviction for
second-degree aggravated assault on Carrillo (count one) and imposed on count
one an eight-year sentence subject to the requirements of the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. The court also merged count five, charging
unlawful possession of a weapon, with count four, charging possession of a
weapon for an unlawful purpose, and imposed an eight-year sentence on count
four subject to the requirements of the Graves Act, N.J.S.A. 2C:43-6. The court
also imposed an eight-year sentence subject to the requirements of the Graves
Act on count eight, charging certain persons not to possess a weapon, to run
concurrent to the sentence imposed on count four. The court further directed
that the eight-year sentence on count one would be served consecutively to the
concurrent sentences imposed on counts four and eight.
In sum, the court imposed an aggregate sixteen-year sentence, half of
which is subject to the Graves Act and the other half of which is subject to
NERA. This appeal followed.
Defendant presents the following points for our consideration:
POINT I
ALTHOUGH THE KEY ISSUE AT TRIAL WAS
IDENTITY, THE TRIAL COURT IMPROPERLY
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PERMITTED CARRILLO'S AND JACKSON'S IN-
COURT IDENTIFICATIONS AND FAILED TO
INSTRUCT THE JURY ON THE INHERENT
UNRELIABILITY OF IN-COURT
IDENTIFICATIONS.
A. The Wade[-Henderson] Hearing[.]
B. Carrillo's in-court identification was inadmissible.
C. The State presented no evidence of Naim Jackson's
ability to observe the shooter at the Wade[-Henderson]
hearing, and his trial testimony revealed he did not
recall the shooter's face; therefore, Jackson's in-court
identification was not based on his memory of the
incident and was thus inadmissible.
D. The court's failure to give jurors the tools to assess
the reliability of the in-court identifications and to
specifically caution them regarding the inherent
suggestiveness of in-court identifications was plain
error.
E. In a weak case in which the only issue was identity,
the wrongful admission of the identifications and the
inadequate jury instructions were reversible error,
individually and cumulatively.
POINT II
[OFFICER] ARTHUR'S TESTIMONY THAT WHEN
HE ARRIVED ON THE SCENE, A "LARGE
CROWD" OF PEOPLE — NONE OF WHOM
TESTIFIED AT TRIAL — WERE BEATING THE
DEFENDANT AND SHOUTING THAT HE WAS
THE SHOOTER WAS A CLEAR VIOLATION OF
HIS CONFRONTATION CLAUSE RIGHTS,
REQUIRING REVERSAL.
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POINT III
THE PROSECUTOR MISLED THE JURY BY
MISCHARACTERIZING COMPLEX DNA
EVIDENCE CENTRAL TO THE STATE'S CASE
AND MADE INFLAMMATORY STATEMENTS IN
SUMMATION, DEPRIVING [DEFENDANT] OF A
FAIR TRIAL.
A. [Defendant]'s convictions must be reversed because
the prosecutor unfairly bolstered the State's case by
severely mischaracterizing the DNA evidence.
B. The prosecutor's inflammatory valorization of the
police, the victim, and his own office deprived
[defendant] of a fair trial.
POINT IV
THE CUMULATIVE IMPACT OF THE ERRORS
ABOVE WARRANTS REVERSAL.
POINT V
REMAND FOR RESENTENCING IS REQUIRED.
A. The trial court erred by failing to merge aggravated
assault (Count 1) with possession of a weapon for an
unlawful purpose (Count 4) where the only unlawful
purpose charged was aggravated assault.
B. The court erred by imposing a consecutive sentence
for possessing the weapon used to commit aggravated
assault.
C. The court failed to properly identify and weigh the
aggravating and mitigating factors.
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Defendant raises the following additional points in his reply brief:
POINT I
DESPITE THE STATE'S CLAIM TO THE
CONTRARY, JOE CARRILLO'S IN-COURT AND
OUT-OF-COURT IDENTIFICATIONS WERE BOTH
CHALLENGED.
POINT II
THERE WAS A VERY HIGH RISK THAT THE TWO
UNRELIABLE IDENTIFICATION PROCEDURES
TAINTED CARRILLO'S IN-COURT
IDENTIFICATION, AND THAT IT LACKED ANY
INDEPENDENT BASIS IN CARRILLO'S MEMORY
OF THE INCIDENT.
A. Both the unreliable photo array and the show-up
identification procedure at the Wade[-Henderson]
hearing tainted Carrillo's in-court identification.
B. State v. Watson [2] and State v. Burney [3] make clear
that Carrillo's passing familiarity with [defendant] is
not an independent basis for Carrillo's in-court
identification, and neither Carrillo nor Jackson had an
adequate opportunity to view the shooter prior to the
shooting[.]
POINT III
THE STATE DID NOT MEET ITS BURDEN OF
DEMONSTRATING THAT THE ANONYMOUS
CROWD'S STATEMENT INCRIMINATING
2
State v. Watson, 254 N.J. 558 (2023).
3
State v. Burney, 255 N.J. 1 (2023).
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[DEFENDANT] WAS AN EXCITED UTTERANCE,
THE TESTIMONIAL STATEMENT VIOLATED
[DEFENDANT]'S CONFRONTATION CLAUSE
RIGHTS, AND THE TRIAL COURT'S FAILURE TO
STRIKE IT FROM THE RECORD REQUIRES
REVERSAL.
POINT IV
THE COURT APPROPRIATELY MERGED
[DEFENDANT]'S CONVICTIONS ON COUNTS
ONE AND THREE.
II.
Defendant argues that Carrillo's and Jackson's in-court identifications of
defendant were improperly admitted at trial. Defendant contends the court first
erred by determining at the Wade/Henderson hearing that Carrillo's and
Jackson's out-of-court identifications during their respective photo-array
procedures were admissible at trial. For the first time on appeal, he contends
the photo-array procedures had impermissibly tainted Carrillo's and Jackson's
in-court identifications of defendant at trial, Carrillo's in-court identification
during the Wade/Henderson hearing constituted an impermissible show-up
identification procedure that tainted his later in-court identification of defendant
at trial, Carrillo's and Jackson's in-court identifications of defendant at trial
constituted unduly suggestive identification procedures, and the court failed to
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adequately instruct the jury on how to assess the trustworthiness of the two in -
court identifications at trial.
As we have explained, although the court had determined following the
Wade/Henderson hearing that evidence concerning Carrillo's and Jackson's out-
of-court identifications of defendant during their respective photo-array
identification procedures was admissible at trial, the State did not present
evidence of those identifications at trial. Defendant nonetheless challenges the
court's ruling that those out-of-court identifications were admissible because he
otherwise argues they tainted Carrillo's and Jackson's in-court identifications
and, for that reason, the in-court identifications at trial had been improperly
admitted.
We consider on appeal a court's order admitting an out-of-court
identification in the same manner we "review a trial court's findings in any non-
jury case." State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016). Factual
findings are accorded deference because they "are substantially influenced by
[the trial court's] opportunity to hear and see the witnesses and to have the 'feel
of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J.
224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). A trial
court's determination that an identification procedure was reliable should not be
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disturbed as long as it is supported by sufficient credible evidence. State v.
Adams, 194 N.J. 186, 203 (2008); State v. Locurto, 157 N.J. 463, 470-71 (1999).
Our review of a court's legal conclusions and application of the facts to the law
is de novo. State v. Gamble, 218 N.J. 412, 425 (2014).
We are not persuaded by defendant's claim the court erred in the first
instance by determining at the Wade/Henderson hearing that Carrillo's and
Jackson's out-of-court identification of defendant during their respective photo-
array procedures were admissible. To obtain a pretrial hearing challenging an
out-of-court identification, a defendant "has the initial burden of showing some
evidence of suggestiveness that could lead to mistaken identification."
Henderson, 208 N.J. at 288. The court determined that burden had been satisfied
because the State was unable to locate the recordings of the photo-array
proceeding. See Anthony, 237 N.J. at 233-34 (holding a defendant is entitled to
a Wade/Henderson hearing if no electronic or contemporaneous, verbatim
recording of an identification procedure was made or provided).
At the hearing, the State was required "to offer proof to show that the
proffered eyewitness identification[s]" were "reliable—accounting for system
and estimator variables—subject to the" caveat that the court could have
"end[ed] the hearing at any time if it [had found] from the testimony that
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defendant's threshold allegation of suggestiveness [was] groundless."
Henderson, 208 N.J. at 289. To obtain an order barring admission of the out-of-
court identifications obtain during the photo-array procedures, defendant bore
the "ultimate burden" of "prov[ing] a very substantial likelihood of irreparable
misidentification." Ibid.In support of his assertion the court erred by determining Carrillo's and
Jackson's out-of-court identifications were admissible, defendant claims the
evidence showed Carrillo's identification during the photo-array procedure was
unreliable because he was in the hospital and in and out of consciousness at the
time. To be sure, there was testimony that Carrillo was in the hospital, had
received medications, and had at times lost consciousness after he was shot, but
Carrillo otherwise testified he was conscious when he viewed the photo-array,
had read and signed the photo-array procedure form he had been provided by
the police, and had selected defendant's photo and identified defendant as the
shooter.
The court considered the evidence presented, determined Carillo was
credible, and accepted his version of the manner in which he had been presented
with the photo array, had selected defendant's photograph, and had identified
defendant as the shooter. Although defendant points to evidence he contends
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undermines the court's findings, we are satisfied court's findings of fact are
amply supported by sufficient evidence the court deemed credible. We therefore
affirm the court's order denying defendant's motion to suppress Carrillo's out-
of-court identification.
We also affirm the court's denial of defendant's motion to suppress
Carrillo's out-of-court identification for two separate but equally dispositive
reasons. First, defendant fails to point to any evidence presented at the
Wade/Henderson hearing that is sufficient to satisfy his ultimate burden of
proving a "very substantial likelihood of irreparable misidentification." Ibid.That failure alone required the denial of his suppression motion. Ibid.Second, Carrillo's out-of-court identification of defendant during the
photo-array procedure, conducted within hours of the shooting, constituted a
"confirmatory" identification procedure that "is not considered suggestive."
State v. Pressley, 232 N.J. 587, 592 (2018). "A confirmatory identification
occurs when a witness identifies someone he or she knows from before but
cannot identify by name." Id. at 592-93. The Court has explained that the person
identified "may be a neighbor or someone known only by a street name," id. at
593, and that is precisely what occurred here. Carrillo testified he had seen
defendant more than thirty-times in their neighborhood and had said "hi" to him
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on prior occasions. Thus, the court correctly denied defendant's suppression
motion for the independent reason that the photo-array procedure involved a
confirmatory identification of defendant, id. at 592-93, and defendant otherwise
therefore could not, and did not, establish the "very likely likelihood of
irreparable misidentification" required to support the requested suppression of
Carrillo's out-of-court identification during the photo-array procedure.
Henderson, 208 N.J. at 289.
Defendant similarly argues the court erred by denying his motion to
suppress Jackson's out-of-court identification during the photo-array procedure.
The court relied on Detective Ford's testimony describing the manner in which
he had administered the photo-array procedure, addressed the Henderson factors
based on the totality of the circumstances presented, and found no evidence of
suggestiveness in the identification process.4 Again, we defer to the court's
4
We reject defendant's claim the court "conflated" the estimator variables in its
analysis of his motion to suppress Jackson's out-of-court identification at the
Wade/Henderson hearing by a failing to make a separate findings concerning
those factors for purposes of considering defendant's requests to suppress
Carrillo's and Jackson's out-of-court identifications. Based on the circumstances
presented, and because the unrefuted evidence established that Carrillo and
Jackson were present at the identical time, in the same place, and while involved
in the same physical altercation during which defendant allegedly pointed the
gun at Payne and shot Carrillo, we find no error in the court's findings, all of
which are supported by substantial credible evidence, of the estimator factors
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findings of fact supporting its determination there was no evidence of
suggestiveness because those findings are supported by sufficient evidence the
court found credible. Moreover, defendant again fails to point to any evidence
presented during the Wade/Henderson hearing satisfying his burden of
establishing the "very substantial likelihood of irreparable misidentification"
that is required for suppression of an out-of-court identification under
Henderson. Ibid. We therefore affirm the court's order denying defendant's
motion to suppress Jackson's out-of-court identification of defendant.
Defendant contends the evidence at trial established there is a very
substantial likelihood of irreparable misidentification in Jackson's out-of-court
identification during the photo-array procedure, and in-court identification at
trial, because there was evidence at trial establishing Jackson did not see
defendant when he pointed the gun at Payne and shot Carrillo. Defendant argues
that in a statement Jackson had provided police following the shooting, he said
he had seen the gun but had not seen the face of the shooter. Defendant therefore
contends Jackson's statement to the police establishes his out-of-court
that applied equally to Carrillo and Jackson. Under those circumstances, the
mere fact that the court addressed, assessed, and found the estimator factors that
were common to Carrillo's and Jackson's separate identifications does not make
the court findings incorrect.
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identification during the photo-array procedure and his in-court identification at
trial must have been the product of improper suggestiveness sufficient to
demonstrate a very substantial likelihood of irreparable misidentification.
Defendant's argument finds no support in any competent evidence.
Jackson's purported statement to the police—which defendant claims establishes
Jackson had told the police he never saw the shooter's face—was never admitted
in evidence at the Wade/Henderson hearing or at trial. Thus, there is no evidence
Jackson ever made the statement about not seeing the shooters face upon which
defendant's argument solely relies.
During cross-examination, defense counsel referred to the purported
statement, and asked Jackson if he had said "no" to the police when asked if he
had seen the shooter's face "at all." Defendant's response was "I don't recall
that. I did see his face." No record of the Jackson's putative prior statement was
introduced in evidence, and the purported facts woven into defense counsel's
question do not constitute evidence. There is no admission by Jackson that he
had previously informed the police he did not see the shooter's face, and the only
competent evidence concerning whether Jackson had seen the shooter's face was
his affirmative testimony that he had. Thus, defendant's claim the trial evidence
established Jackson said he had never seen the shooter's face and, for that reason,
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24
his out-of-court and in-court identification of defendant was the product of "a
substantial likelihood of irreparable misidentification" finds no evidential
support in the record.
Defendant also argues that: Carrillo's in-court identification of defendant
at the Wade/Henderson hearing constituted an unduly suggestive identification
procedure and the procedure tainted Carrillo's subsequent in-court identification
of defendant at trial; Carrillo's in-court identification of defendant at trial
constituted a separate unduly suggestive identification procedure; and Jackson 's
in-court identification of defendant at trial separately constituted an unduly
suggestive identification procedure that had further been tainted by his
participation in what defendant claims was Jackson's participation in the unduly
suggestive prior photo-array identification procedure. We are not persuaded.
In the first instance, although defendant's initial motion to suppress
Carrillo's and Jackson's out-of-court identifications during their separate photo-
array procedures also sought suppression of Carrillo's and Jackson's anticipated
in-court identifications of defendant, the requested suppression of the
anticipated in-court identifications in that motion was based solely on the claim
that the out-of-court photo-array identification procedures were unduly
suggestive. As we have explained, we reject that argument for same reason as
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25
the motion court—at the Wade/Henderson hearing defendant failed to carry his
burden of establishing "a very substantial likelihood of irreparable
misidentification," Henderson, 208 N.J. at 289, during the photo-array
identification procedures and, as a result, based on the arguments defendant had
presented to the trial court, there were no grounds permitting or requiring the
suppression of both the out-of-court photo-array identifications and the
anticipated in-court—at trial—identifications.
On appeal, defendant presents different arguments based on different
circumstances he never presented to the trial court. He contends the in-court
identifications were improperly admitted at trial not only because the court erred
by denying the prior suppression motion, but also because the process by which
Carrillo made the in-court identification at the Wade/Henderson hearing
constituted a distinct impermissibly suggestive identification procedure that also
tainted Carrillo's subsequent in-court identification at trial. Defendant also
argues for the first time that the process—the State's requests that they identify
in court the person who had shot Carrillo—by which Carrillo and Jackson made
their identifications at trial also constituted purported impermissibly suggestive
identification procedures that should not have been permitted at trial.
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26
Defendant did not object during the Wade/Henderson hearing to the
State's request that Carrillo identify the person who had shot him. Defendant
did not argue that in making the request, the State had engaged in an
impermissibly suggestive identification procedure that would taint all future
identifications by Carrillo of the individual who had fired a bullet into his back.
Defendant also did not object at trial to the State asking Carrillo and
Jackson if they saw the shooter in the courtroom and requesting they identify
the shooter if they saw the person in the courtroom. Defendant further did not
object to Carrillo's and Jackson's responses to the State's inquiries and requests
by identifying defendant as the shooter. Defendant did not move before the trial
court to exclude the identifications based on any claim—like the one he makes
now for the first time on appeal—that asking the witnesses to identify the
shooter in the courtroom during trial constituted an impermissibly suggestive
identification procedure. 5
5
We observe that Carrillo's and Jackson's in-court identifications of defendant
at trial did not constitute "first-time identifications" of defendant. Watson, 254
N.J. at 587-89. As noted, Carrillo and Jackson had separately identified
defendant within a few hours of the shooting during their respective photo-array
identification procedures, and Carrillo had also identified defendant without
objection during the Wade/Henderson hearing. We also note that Carrillo's
identification of defendant constituted a "confirmatory identification" because
he knew defendant from seeing him in their neighborhood, greeting him on
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27
Although we may consider allegations of error not brought to the trial
judge's attention, we need not do so. Generally, we will not consider such issues,
even if of constitutional dimension, unless they go to the jurisdiction of the trial
court or concern matters of substantial public interest. State v. Vicenty, 237
N.J. 122, 135 (2019); State v. Galicia, 210 N.J. 364, 383 (2012); State v.
Robinson, 200 N.J. 1, 20-22 (2009); State v. Arthur, 184 N.J. 307, 327 (2005);
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Defendant's newly minted arguments do not go to the jurisdiction of the
trial court or concern matters of substantial public interest. And defendant's
failure to raise before the trial court his new claims that Carrillo's in-court
identification of defendant at the Wade/Henderson hearing tainted his later in-
court identification of defendant and the identifications of defendant made by
Carrillo and Jackson at trial were the product of an unduly suggestive in-court
identification procedures, deprived the trial court "of an opportunity to take
occasion, and seeing him more than thirty-times prior to the shooting.
Moreover, although identification of defendant was a central issue at trial, the
State's proof defendant was the shooter was not dependent on Carrillo 's and
Jackson's in-court identifications. The State's evidence otherwise established
defendant's DNA was found on the gun used during the shooting, a long-sleeve
shirt taken from defendant following the shooting had gun-shot residue on its
right sleeve, and the evidence otherwise established the shooter had held the gun
in his right hand. Additionally, defendant was found by the police at the scene
suffering from injuries.
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28
curative action," see State v. Frost, 158 N.J. 76, 84 (1999), and to develop the
record necessary to allow it to address those claims, see, e.g., State v.
Washington, 256 N.J. 136, 166 (2024) (explaining "defendants may seek a
pretrial hearing to determine whether a witness's identification evidence will be
admitted at trial"); Watson, 254 N.J. at 588 (explaining "if a hearing is needed
to determine admissibility" of a first-time in-court identification of a defendant,
the hearing "should be conducted and resolved before the start of trial"). We
are therefore without the necessary record on which defendant's new claims may
be properly considered for the first time on appeal. For those reason, we decline
to address the merits of defendant's arguments that are raised for the first time
here.6 Vincenty, 237 N.J. at 135; Robinson, 200 N.J. at 20-22.
We also reject defendant's claim the court erred by failing to instruct the
jury on the alleged inherent suggestiveness of in-court identifications.
6
Although unnecessary to our decision not to address the merits of defendant's
newly asserted claims, we are not persuaded admission of the in-court
identifications at trial were clearly capable of producing an unjust result. R.
2:10-2. For the reasons already expressed, Carrillo's and Jackson's in-court
identifications of defendant at trial did not constitute "first-time identifications,"
see generally Watson, 254 N.J. at 583-89, Carrillo's identification of defendant
constituted a "confirmatory identification," see Pressley, 232 N.J. at 592-93,
and defendant's identification as the shooter was otherwise separately
established through the DNA and gun-shot-residue evidence and defendant's
undisputed presence at the scene of the shooting.
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29
Defendant did not object at trial to the court's jury instructions or request that
the court include the charge he now contends the court should have provided.
We therefore review defendant's arguments under the plain error standard. State
v. Cooper, 256 N.J. 593, 607 (2024).
"Regarding a jury instruction, 'plain error requires demonstration of
'"legal impropriety in the charge prejudicially affecting the substantial rights of
the defendant and sufficiently grievous to justify notice by the reviewing court
and to convince the court that of itself the error possessed a clear capacity to
bring about an unjust result."'" State v. Montalvo, 229 N.J. 300, 321 (2017)
(quoting State v. Chapland, 187 N.J. 275, 289 (2006)). We find no such error
here.
Although "[a] trial court has an 'independent duty to . . . ensure that the
jurors receive accurate instructions on the law as it pertains to the facts and
issues of each case, irrespective of the particular language suggested by either
party," Cooper, 256 N.J. at 608 (quoting State v. Reddish, 181 N.J. 553, 613
(2004)), defendant ignores that he did not argue before the trial court or jury that
Carrillo's in-court identification during the Wade/Henderson hearing tainted his
in-court identification at trial or that Carrillo's and Jackson's in-court
identifications at trial were the product of purported unduly-suggestive trial
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30
procedures. Thus, defendant offered no basis at trial to support or require a jury
instruction on the alleged taint created by Carrillo's in-court identification
during the Wade/Henderson hearing or the alleged suggestiveness of the in-court
trial identifications. The court therefore had no reason based on the record
before it to instruct the jury in the manner defendant now claims the court should
have.
We also reject defendant's challenge to the jury instructions because his
failure to object at trial supports a presumption "that the charge was not error
and was unlikely to prejudice . . . defendant's case." Montalvo, 229 N.J. at 320(quoting State v. Singleton, 211 N.J. 157, 182 (2012)). We also find no evidence
the court's instruction on identification, provided in strict accordance with
Henderson's requirements as set forth in the model jury charge, Model Jury
Charges (Criminal), "Identification: In-Court Identification Only" (Rev. July
19, 2012), was insufficient or inadequate to properly advise the jury as to the
manner in which it should assess the identification evidence presented based on
the issues surrounding identification presented by the parties during the trial.
We further note the State did not present any evidence at trial that Carrillo
and Jackson had previously identified defendant in the out-of-court photo-array
procedures or that Carrillo had identified defendant during the Wade/Henderson
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31
hearing. Defendant also did not present any evidence concerning those
identifications, mention them during cross-examination of the State's witness,
or make arguments based on them during summation. Of course, to have done
so would have resulted in the presentation of evidence that Carrillo and Jackson
had separately identified defendant as the shooter within a short-time of the
incident, and that evidence would have further supported the State's case.
Because there was no evidence presented at trial concerning Carrillo's and
Jackson's prior identifications of defendant as the shooter, defendant's argument
that the court erred by failing to instruct the jury about the purported taint those
identifications allegedly had on the in-court trial identifications is undermined
by the record. Most simply stated, the trial record lacked any evidence
supporting that instruction because there was no evidence presented concerning
those prior identifications.
Carrillo's and Jackson's in-court trial identifications were the only
identifications of defendant before the jury, and the court instructed the jury
without objection as to the manner in which those identifications should be
considered. Because defendant had not argued that those identifications resulted
from unduly suggestive identification procedures, and because there was no
evidence concerning the prior identifications made by Carrillo and Jackson, the
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32
court was without any basis in the record to stray from the model jury instruction
on in-court identifications for the purpose of addressing issues never raised by
the parties. See generally State v. Cotto, 471 N.J. Super. 489, 543 (App. Div.
2022) ("[A] jury charge is presumed to be proper when it tracks the model charge
because the process to adopt model jury charges is 'comprehensive and
thorough.'" (quoting State v. R.B., 183 N.J. 308, 325 (2005))). We therefore
reject defendant's claim he is entitled to reversal of his convictions based on any
alleged error in the court's instruction to the jury on identification.
III.
Defendant also argues that his convictions must be reversed because his
right to confront witnesses against him was violated at trial during testimony
presented by Camden County Metro Police Department Officer Christopher
Arther. Officer Arthur testified that he had responded to the report of a fire near
the incident in which Carrillo was shot and then responded to the nearby scene
of the shooting. He testified that when he arrived at the scene of the shooting,
he observed a "large crowd" fighting that included a group of individuals
"beating on a male who was bleeding profusely . . . people were pointing to
him . . . saying that he had shot someone."
A-3437-21
33
Defense counsel immediately objected to the testimony. And the court
stated, "All right. The objection is sustained." The court then addressed counsel
at sidebar and instructed the officer not to refer to defendant as a suspect and
not to refer to Carrillo as the victim. The officer later identified defendant as
the individual he had seen bleeding and explained he had transported defendant
to the hospital for treatment of his injuries.
Defendant argues his rights to a fair trial, to confront witnesses against
him, and to due process were violated because the judge allowed the testimony
about the statements—that defendant had shot someone—that Officer Arthur
had attributed to the individuals near the profusely bleeding defendant, and the
court had not provided a curative instruction concerning the testimony.
The officer's fleeting comment about the statements he attributed to the
unidentified individuals constituted inadmissible hearsay. We are unpersuaded
by the State's claim the statements attributed to the individuals constituted
admissible excited utterances under N.J.R.E. 803(c)(2). To establish the
admissibility of an excited utterance, the proponent of the evidence must
establish: "1) '[a] statement relating to a startling event or condition'; 2) 'made
while the declarant was under the stress of excitement caused by the event or
condition'; and 3) 'without opportunity to deliberate or fabricate.'" State ex rel.
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34
J.A., 195 N.J. 324, 340 (2008) (alteration in original) (quoting N.J.R.E.
803(c)(2)).
The record did not support the admission of Officer Arthur's testimony
about the statement attributed to the individuals standing near the bleeding
defendant. The statements declared defendant had shot someone but the record
is bereft of evidence that any of the unidentified individuals had witnessed the
shooting or that their statements had been made in "under the stress of" the
shooting. There is also no evidence demonstrating the declarants lacked an
opportunity to "deliberate" prior to making the statements or "fabricate" the
statements because, again, the record is devoid of any information concerning
what, if anything, the declarants had seen or when they arrived at the location
of the shooting. In sum, there is no foundation in the record supporting a finding
the statements the officer attributed to the individuals constituted excited
utterances permitting their admission under N.J.R.E. 803(c)(3) as excited
utterances that defendant "had shot someone."
We agree with defendant's contention Officer Arthur's testimony about the
statements, if admitted in evidence, would have violated his rights to confront
witnesses against him. The United States Constitution and the New Jersey
Constitution guarantee defendants the right to confront witnesses and to cross -
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35
examine accusers. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; State v.
Branch, 182 N.J. 338, 348 (2005). The Confrontation Clause reflects "a
preference for the in-court testimony of a witness, whose veracity can be tested
by the rigors of cross-examination." J.A., 195 N.J. at 342. "Although the Sixth
Amendment does not interdict all hearsay, it does prohibit the use of out -of-
court testimonial hearsay, untested by cross-examination, as a substitute for in-
court testimony." Ibid. (emphasis in original).
In Crawford, the Supreme Court held that the Confrontation Clause bars
from a criminal trial all "testimonial statements of a witness who did not appear
at trial unless [the witness] was unavailable to testify, and the defendant had a
prior opportunity for cross-examination." 541 U.S. at 53-54. "The threshold
issue is . . . whether the proffered statement is 'testimonial.'" State v. Wilson,
227 N.J. 534, 545 (2017). The Court left "for another day any effort to spell out
a comprehensive definition of 'testimonial,'" to trigger Confrontation Clause
scrutiny, but held "it applie[d] at a minimum . . . to police interrogations."
Crawford, 541 U.S. at 68.
Our Supreme Court has explained that "a declarant's narrative to a law
enforcement officer about a crime, which once completed has ended any
'imminent danger' to the declarant or some other identifiable person, is
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36
testimonial." J.A., 195 N.J. at 348 (quoting Davis v. Washington, 547 U.S. 813,
827-28 (2006)). That is precisely the situation here. As explained by Officer
Arthur, the statements about which he testified were offered by individuals
following the commission of a crime—the shooting—and there is no evidence
the declarants were in imminent danger when they made them. For that reason
alone, the purported statements were testimonial and, if admitted in evidence,
would have violated defendant's confrontation rights. Ibid.We reject defendant's argument that Officer Arthur's fleeting reference to
the statements provides ground for reversal. The court promptly sustained the
objection to the statements and, as such, correctly denied admission of the
testimony about them in evidence. The court had informed the jury at the outset
of the trial that if it sustained an objection to a question or testimony, that meant
the court had ruled in favor of the attorney making the objection and the
excluded evidence "is not evidence and must not be considered by [the jury] in
[its] deliberations." We "must assume that the jury followed the instructions
delivered by the trial court," State v. Marshall, 173 N.J. 343, 355 (2002), and
discern no basis in the record supporting a contrary conclusion here.
Defendant contends the court erred by failing to provide a curative
instruction, but he chose not to request one. "When no request for a limiting or
A-3437-21
37
curative instruction is made, defendant must show that the failure to give such
an instruction sua sponte constitutes an error 'clearly capable of producing an
unjust result.'" State v. Mays, 321 N.J. Super. 552, 619 (App. Div. 1999)
(quoting State v. Lofton, 287 N.J. Super. 76, 97 (App. Div. 1996)). Where, as
here, defense counsel objected to the testimony but did not request a curative
instruction, we may infer counsel "made a strategic decision not to draw more
attention to [the] isolated, fleeting comment" and "[w]e owe some degree of
deference to counsel's strategic or tactical decision[]" to not make the request.
Id. at 633.
Based on the circumstances presented, we are persuaded the fleeting
testimony the court excluded by sustaining counsel's objection is not clearly
capable of producing an unjust result and infer that defense counsel made a
strategic decision not to request a curative instruction to avoid highlighting the
objectionable testimony. Moreover, we again note the evidence establishing
defendant's guilt was otherwise substantial. Carrillo and Jackson identified
defendant. There was gunshot residue found on defendant's sleeve. Defendant's
DNA was found on the gun, and defendant was found by the police at the scene
immediately following the shooting. Officer Arthur's brief testimony, which the
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38
court properly excluded, was therefore not clearly capable of producing an
unjust even in the absence of a curative instruction.
IV.
Defendant further argues the prosecutor engaged in misconduct during
opening and closing statements by mischaracterizing the evidence and by
otherwise valorizing Carrillo by calling him a hero and his actions heroic. He
claims the prosecutor's conduct deprived him of a fair trial and requires reversal
of his convictions.
Defendant did not object to any of the prosecutor's comments about which
he now complains. We therefore review the comments under the plain error
standard. See State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001).
"Prosecutors are afforded considerable leeway in closing arguments as long as
their comments are reasonably related to the scope of the evidence presented."
Frost, 158 N.J. at 82. However, a prosecutor "must refrain from improper
methods that result in a wrongful conviction." State v. Smith, 167 N.J. 158, 177
(2001).
Prosecutorial misconduct is grounds for reversal only if the conduct was
so egregious that it deprived the defendant of a fair trial. Id. at 181. To deprive
a defendant of a fair trial, the prosecutor's conduct "must have been 'clearly and
A-3437-21
39
unmistakably improper,' and must have substantially prejudiced defendant's
fundamental right to have a jury fairly evaluate the merits of his defense." Id.
at 182 (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)).
We evaluate the challenged remarks in the context of the respective
opening statement and summation as a whole, State v. Atwater, 400 N.J. Super.
319, 335 (App. Div. 2008), and the entire record, State v. Bey, 129 N.J. 557,
620 (1992). That is because "[n]ot every instance of misconduct in a
prosecutor's summation will require a reversal of a conviction. There must be a
palpable impact." State v. Swint, 328 N.J. Super. 236, 261 (App. Div. 2000).
And, where there is no objection to a prosecutor's remarks or comments, "it is a
sign 'that defense counsel did not believe the remarks were prejudicial ' when
they were made." Pressley, 232 N.J. at 594 (quoting State v. Echols, 199 N.J.
344, 360 (2009)).
Defendant claims the prosecutor engaged in misconduct by misstating the
evidence concerning the DNA that had been recovered from the gun. During
summation, the prosecutor stated that a detective had testified "he swabbed the
trigger" of the gun when he had recovered the revolver. Defendant contends the
statement was misleading because the detective had testified he swabbed the
entire gun for DNA. The State contends the detective testified he had swabbed
A-3437-21
40
the trigger as one part of the swabbing of the gun he had done and therefore the
prosecutor's statement was accurate and proper.
We find nothing improper about the prosecutor's statement that the
detective testified he had swabbed the trigger of gun. The detective testified he
had swabbed the trigger, even though he also testified he had swabbed other
parts of the gun—the entire gun—as well. The prosecutor did not, however,
state the detective had swabbed only the trigger or that DNA from the trigger
had matched defendant's DNA. And, as the court otherwise had instructed the
jurors, it was their recollection of the testimony on which they were required to
base their decision and not the evidence as argued by counsel.
Defendant similarly argues the prosecutor engaged in misconduct during
summation by stating the State's DNA expert had testified there was a one-in-
seven-trillion probability that the DNA recovered from the gun could be from
someone other than defendant. We reject defendant's argument because the
expert testified that the "World population is about [seven] billion, so that
threshold is set at [seven] trillion. So statistically, we would need a population
of a thousand earths to be able to expect to see this DNA profile to occur a
second time." Thus, the prosecutor's statement that the evidence established a
one-in-seven-trillion chance the recovered DNA came from someone other than
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41
defendant did not constitute misconduct—the prosecutor's statement accurately
reflected the expert's testimony.
Defendant argues the prosecutor misstated the expert's testimony
concerning the one-in-seven-trillion probability by erroneously misapplying
what defendant refers to as "random match probability." We reject the claim
because the DNA expert did not testify concerning random match probability,
the record is devoid of any evidence concerning it or supporting defendant 's
contention, and the prosecutor's statements concerning the probability the DNA
found on the gun could have come from someone other than defendant
constituted fair comment based on the expert's unrefuted testimony.
Defendant also contends the prosecutor misrepresented the DNA evidence
during summation by stating that if the recovered DNA had come from someone
related to defendant, the person would have to have been defendant's biological
twin. Defendant claims the purported misrepresentation impaired the jury's
ability to properly consider defendant's son, Rayquan Morton, as a possible
contributor to the DNA found on the gun.
The argument fails because, contrary to defendant's contention, the DNA
expert testified that "[n]o two people will have the exact same DNA, except for
identical twins" and that the DNA recovered from the gun was defendant's. It
A-3437-21
42
was not misconduct for the prosecutor to rely on that testimony in making his
arguments in summation to the jury.
We agree with defendant that during his opening statement the prosecutor
inappropriately identified Carrillo as a hero and as having acted heroically in
stepping in front of defendant as he pointed the gun at Payne and by citing
Carrillo's and Jackson's bravery during summation. The comments were
inappropriate because they highlighted the victim's and witness's virtues and
were inconsistent with the prosecutor's duty to confine arguments and comments
before the jury to the evidence.
In any event, the challenged comments were fleeting and did not play a
significant role in the prosecutor's comments during his opening or summation.
The prosecutor's opening and closing remarks were otherwise properly focused
on the evidence establishing defendant's guilt. Although we find those few
comments were inappropriate, considering the context in which the statements
were made and the entire trial record, we are convinced defendant has failed to
demonstrate they were sufficiently prejudicial to have been clearly capable of
producing an unjust result. See Smith, 167 N.J. at 181-82. The comments were
not "so egregious that [they] deprived defendant of a fair trial," State v.
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43
Wakefield, 190 N.J. 397, 446 (2007) (quoting Smith, 167 N.J. at 181), and they
therefore do not permit or require reversal of defendant's convictions.
V.
Defendant also challenges his sentence. He argues the court erred by
failing to merge his conviction for possession of a weapon for an unlawful
purpose (count five) with his conviction for aggravated assault (count one),
imposing a consecutive sentence on his possessory-weapons-offense
convictions, and failing to properly find and weigh the aggravating and
mitigating factors under N.J.S.A. 2C:44-1.
We apply a deferential standard to our review to the trial court's
imposition of sentence, State v. Fuentes, 217 N.J. 57, 70 (2014), and are mindful
we "should not 'substitute [our] judgment for those our sentencing courts,'" State
v. Cuff, 239 N.J. 321, 347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)).
We therefore will
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.
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
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44
We first address issues related to the court's merger of the offenses for
which the jury convicted defendant. Defendant argues the court erred by failing
to merge his conviction for possession of a weapon for an unlawful purpose
(count four) with his conviction for aggravated assault of Carrillo (count one).
We find, and the State concedes, the court erred by failing to merge count four
and count one because it is well-settled that "[w]hen the only unlawful purpose
in possessing [a weapon] is to use it to commit the substantive offense," the
possessory-weapons charge must merge with the substantive offense. State v.
Tate, 216 N.J. 300, 312 (2013) (alteration in original) (quoting State v. Diaz,
144 N.J. 628, 636, 638-39 (1996)); see also State v. Abril, 444 N.J. Super. 553,
563-64 (App. Div. 2016).
That is the case here. As the State recognizes, the evidence established
defendant's only unlawful purpose in possessing the handgun was to use it to
shoot Carrillo and otherwise point it at Payne. Tate, 216 N.J. at 313; Abril, 444
N.J. Super. at 563-65; see also State v. Smith, 322 N.J. Super. 385, 400 (App.
Div. 1999) (remanding for entry of a "corrected judgement" addressing the
court's error in merging an unlawful-possession-of-a-weapon conviction with an
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45
armed robbery conviction). 7 And, as noted, the court had otherwise merged the
aggravated-assault-by-pointing-the-handgun-at-Payne conviction under count
three with the aggravated-assault-of-Carrillo conviction under count one.
Based on the merger decisions made by the sentencing court, as corrected
in part in this decision, defendant should have been sentenced solely on count
one, aggravated assault on Carrillo, and count eight, certain persons not to
possess a weapon. The court should not have sentenced defendant on count four,
possession of a weapon for an unlawful purpose.
Defendant also challenges the court's weighing of the statutory
aggravating and mitigating factors, see N.J.S.A. 2C:44-1(a) and (b), in its
sentencing analysis. As noted, we will "affirm a sentence unless . . . the
7
The State argues on appeal that the court also erred by merging defendant 's
convictions on count three, aggravated assault on Payne, with defendant 's
conviction on count one, aggravated assault on Carillo, and by merging count
five, unlawful possession of a handgun, with count four, possession of a
weapons for an unlawful purpose. We do not address those contentions because
they are not properly before us; the State opted not to cross-appeal from
defendant's judgment of conviction. State v. Elkwisni, 190 N.J. 169, 175 (2007).
We do not, however, preclude the State from raising the issues directly with the
trial court on the resentencing that, as we explain, we otherwise order. The court
on remand shall address such arguments, if presented on remand, in accordance
with the applicable law and rules. Our decision permitting the State to make
those arguments on remand shall not be construed as expressing on opinion on
the merits of any such arguments presented.
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46
aggravating and mitigating factors found by the sentencing court were not based
on competent and credible evidence in the record." Fuentes, 217 N.J. at 70(quoting Roth, 95 N.J. at 364-65).
Defendant's claim the court's analysis of the aggravating and mitigating
factors was comprised of a mere statement that it had assessed the factors is
belied by the record. The court's discussion of defendant's extensive prior record
supported its finding of aggravating factors three, the risk of reoffending,
N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior criminal record,
N.J.S.A. 2C:44-1(a)(6); and nine, the need for deterrence, seriousness of the
offenses and need to deter, N.J.S.A. 2C:44-1(a)(9). More particularly, the court
explained
defendant has had prior contact with the court system.
As a juvenile he had one adjudication and one violation
of probation. As an adult, he's a multi-state offender,
with one conviction in the First Judicial Court in
Philadelphia. And in New Jersey the defendant has had
six Municipal Court convictions, nine Superior Court
convictions, including two for CDS . . . possession,
distribution on or near school property. One for
disarming a law enforcement officer; one for
possession of CDS; two for aggravated assault; one for
terroristic threats; two for resisting arrest; and one for
possession with distribution within 500 feet of certain
public property.
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Defendant also argues the court should have found mitigating factor nine ,
that defendant's character and attitude make it unlikely that he will reoffend,
N.J.S.A. 2C:44-1(b)(9). The court considered and properly rejected that factor,
finding it undermined by substantial credible evidence establishing defendant 's
significant criminal history, which includes his prior commission of violent
crimes.
Defendant also argues the court had inconsistently found both aggravating
factor nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), and mitigating
factor eight, the circumstances leading to the charge are unlikely to reoccur,
N.J.S.A. 2C:44-1(b)(8). Defendant claims that under similar circumstances the
Court in Fuentes ordered a remand for resentencing because the trial court had
failed to explain its reasoning for finding mitigating factor eight and aggravating
factor nine. 217 N.J. at 80-81.
Contrary to defendant's contention, the Court in Fuentes explained that
"[b]ecause N.J.S.A. 2C:44-1's statutory language does not suggest, and [the
Court had] never held, that aggravating factor nine and mitigating factor eight
are inherently incompatible," it "did not adopt such an inflexible rule." Id. at
79. As the Court explained, "even if the record demonstrates that the offense at
issue arose in circumstances unlikely to recur, thus supporting a finding as to
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mitigating factor eight, a defendant could nonetheless pose a risk of recidivism,
requiring specific deterrence within the meaning of N.J.S.A. 2C:44-1(a)(9)." Id.
at 80. That is the precise determination the sentencing court made here , and we
find no error in the court's conclusion because it is supported by substantial
credible evidence.
We therefore find no basis in the record to question or disturb the court
detailed, thoughtful, and well-supported findings of the aggravating and
mitigating factors. Our review of the record similarly reveals no grounds to
disturb the court's weighing of the factors in its determination of defendant's
sentence. We reject defendant's claims to the contrary.
As we have explained, the court sentenced defendant to concurrent eight-
year custodial terms on counts four and eight and a consecutive eight-year term
on count one.8 Defendant argues the court erred by imposing consecutive
sentences on the possessory weapons offenses and the aggravated assault for
which he was convicted because "the offenses were part and parcel of the same
incident." He also contends the court erred by imposing the consecutive
8
As noted, we have vacated the court's sentence on court four because the court
should have merged that count with count one.
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sentences, claiming the court misapplied the principles governing the imposition
of consecutive sentences established in State v. Yarbough, 100 N.J. 627 (1985).
In Yarbough, the Court "identified a series of factors for sentencing courts
to consider as a guide in determining whether to make sentences run
concurrently or consecutively." State v. Torres, 246 N.J. 246, 264 (2021). The
Court has explained that a proper analysis under Yarbough "does not rely on
ticking off the . . . factors." Id. at 270. "[A] sentencing court's decision whether
to impose consecutive sentences should retain focus on 'the fairness of the
overall sentence.'" Id. at 270 (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
In support of its imposition of the consecutive sentences, the court
generally addressed the Yarbough factors.9 The court found that the possessory-
9
The Yarbough factors include:
(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;
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weapons offenses for which defendant was convicted under counts four and
eight "stand separately and alone" from the aggravated assault under count one
and "would have merited a conviction even if the aggravated assault had not
occurred." That finding adds little substance to the analysis of whether to
impose a consecutive sentence because a court may consider imposing a
consecutive sentence only where a defendant has been convicted of more than
(c) the crimes were committed at different times or
separate places, rather than being committed so closely
in time and place as 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; [and]
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense[.]
[Yarbough, 100 N.J. at 643-45.]
The Yarbough factors as first explained by the Court included a sixth factor—
"there should be an overall outer limit on the cumulation of consecutive
sentences for multiple offenses not to exceed the sum of the longest terms
(including an extended term, if eligible) that could be imposed for the two most
serious offenses"—that was "disapproved by the Legislature[,]" when in 1993 it
"amended N.J.S.A. 2C:44-5(a) to clarify that '[t]here shall be no overall outer
limit on the cumulation of consecutive sentences for multiple offenses.'" Torres,
246 N.J. at 265 (alteration in original) (citation omitted).
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one separate offense, and the commission of separate crimes alone does not
warrant the imposition of consecutive sentences. See id. at 266 (explaining our
Criminal "Code does not contain a presumption in favor of either concurrent or
consecutive sentences"). If it were otherwise, it would be unnecessary to
consider the Yarbough factors and the overall fairness of a sentence in
determining whether to impose a consecutive sentence. See generally id. at 262-
68.
The court also based its decision to impose consecutive sentences on its
finding that defendant's "possession of the gun preceded the shooting, and while
somewhat overlapping," his possession of the gun was "materially separate in
time and location" from the shooting. Based on those findings, the court
determined defendant's sentence on the aggravated assault under count one
should run consecutive to the concurrent sentences it had imposed on the
possessory-weapons offenses under counts four and eight because "the gun
charges involved unique periods and locations of illegal behavior" and therefore
"did not constitute a single period of aberrant behavior." The court further
reasoned that "[b]ecause of the distinct nature of the crimes," imposition of
consecutive sentences would "uphold the principle that there . . . should be no
free crimes."
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In our view, those findings are in part based on the same error that caused
the court's incorrect failure to merge count four with count one. Again, as the
State concedes, it was necessary to merge count four with count one because the
evidence established defendant possessed the handgun solely for the unlawful
purpose of pointing it at Payne and shooting Carrillo. As such, the commission
of the possession-of-a-weapon-for-an-unlawful-offense under count four
occurred at the identical location as, and simultaneous with, the commission of
the aggravated assaults for which he was convicted. The commission of the
crime for which defendant was convicted under count four was therefore clearly
part of the same period of aberrant behavior. The court's contrary finding finds
no support in the record.
We recognize defendant was also convicted of certain persons not to
possess a weapon under count eight, and that is an offense distinct from the
possession-of-a-weapon-for-an-unlawful-purpose offense under count four. But
the court did not offer reasons for the imposition of a consecutive sentence on
count eight different from those on which it relied in imposing a consecutive
sentence on court four. And, as we have explained, those reasons are not
supported by the record. Moreover, the court's finding that consecutive
sentences are appropriate because the offenses occurred at different times and
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at different locations is simply inaccurate—the evidence showed defendant
possessed the handgun at only a single instant in time and at a single location —
and that is when he pointed the gun at Payne and fired it at Carrillo .
There may be grounds in the record to support the imposition of a
consecutive sentence on defendant's certain-persons conviction but for the
reasons we have explained, the court's findings supporting its consecutive-
sentence determination are incorrect, contradicted by the record, and inadequate
to support its imposition of a consecutive term.
It is also unclear if the court deemed a consecutive sentence was warranted
because it sentenced defendant on two weapons offenses, instead of the only
offense—count eight—for which it should have sentenced defendant based on a
proper application of merger principles, or if the court's determination of the
overall fairness of the sentence was affected by its erroneous understanding it
was required to impose sentence on three separate convictions—the two
weapons offenses and single aggravated assault following merger—when, due
to merger, it was required to sentence defendant on only two separate offenses—
counts four and eight.
For those reasons, we deem it appropriate to vacate defendant's sentences
to allow the court to consider anew its imposition of its sentences on counts one
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and eight, as well as whether the sentences should be consecutive, in the absence
of its mistaken understanding that it was also required to sentence defendant on
count four. In remanding the matter for resentencing on counts one and eight,
we do not offer any opinion on the terms of the sentences that should be imposed
or whether consecutive or concurrent sentences should be imposed. That
decision shall be made by the remand court in accordance with all applicable
legal principles based on the record presented and the arguments of counsel. See
generally State v. Randolph, 201 N.J. 330 (2012).
To the extent we have not expressly addressed any of defendant's
arguments, including his contention that purported cumulative errors require
reversal of his convictions and sentence, we have determined they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We affirm defendant's convictions, vacate his sentence, and remand for
resentencing. We do not retain jurisdiction.
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