State of New Jersey v. James Crawford ( 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NOT FOR PUBLICATION WITHOUT THE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-0153-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES CRAWFORD,
Defendant-Appellant.
_______________________
Submitted September 16, 2024 – Decided November 1, 2024
Before Judges Gummer, Berdote Byrne, and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 19-02-0187.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Marcia Blum, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, and Amily Bolano Diaz, on the brief).
PER CURIAM
Defendant James Crawford appeals from an August 12, 2022 judgment of
conviction based on guilty verdicts for charges of murder and weapon offenses.
Defendant stood trial with co-defendant Alexander Harris, who is not involved
in this appeal.
Defendant argues the trial court erred in admitting certain hearsay
statements from a second co-defendant turned cooperating witness for the State,
Jahmir Thomas. In seeking reversal and a new trial, defendant claims the trial
court committed plain error when it failed to provide the jury with a tailored
limiting instruction regarding hearsay statements. He further argues that even
if his convictions are not reversed, this matter must be remanded to correct the
trial court's sentencing errors. The State opposes reversal of defendant's
convictions but agrees resentencing is warranted. For reasons that follow, we
affirm defendant's convictions but remand to the trial court to correct defendant's
sentence.
I.
We draw the facts leading to defendant's convictions from the trial record.
Thomas testified that in the early evening of September 4, 2018, defendant and
co-defendant Harris were traveling in Harris's white minivan in Jersey City.
Thomas had "[h]ung out with [Harris] a couple times" before. On that date,
Thomas was "[i]n Currie[s] Woods projects" when he saw Harris and defendant
pull up in the minivan.
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According to Thomas, as he entered the minivan, Harris was seated in the
driver seat and defendant was seated in the passenger seat. The trio drove north
in Jersey City until arriving at the intersection of Ocean and Lembeck Avenues,
where the victim, Eric Crocker, was on the stairs of a building located on the
northeast corner of Lembeck Avenue. Harris said, "There you go right there,"
pointing out the victim to others in the minivan. As the minivan traveled through
the intersection, Harris drove down an adjacent street and pulled over. Sensing
defendant did not want to shoot the victim, Harris said, "If you don't want to do
it, I'll do it." But defendant responded, "I'll do it." Thomas explained he knew
what Harris and defendant were discussing because they had a gun "[i]n the
middle of the [minivan’s] floor." At that point, Harris gave defendant the gun
from the floor of the minivan, a black hat, a black shirt, and gloves. Defendant
exited the minivan and walked toward the intersection of Lembeck and Ocean.
Harris and Thomas then drove to a nearby store.
There was testimony from several detectives regarding footage from
street-camera recordings of the intersections before, during, and after the
shooting. The footage showed an individual dressed in black exiting the minivan
at 5:51 p.m. and walking down Lembeck Avenue, approximately half a block
from the crime scene. According to Thomas, the individual seen exiting the
vehicle was defendant, dressed in all black, wearing the hat, gloves, and shirt
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Harris had given him. Thomas testified that after Harris returned to the minivan,
Thomas moved to the driver's seat and the pair drove away. At that point,
Thomas did not know whether the victim had been shot, but "[w]hen [they] got
closer [to the scene, they] saw all the chaos on Lembeck [Avenue]."
In the investigation that followed, police seized discarded items found
stashed under a nearby vehicle, including the black hat, a pair of gloves, and a
black shirt. No blood was found on any of the items; however, a New Jersey
State Police DNA analyst testified the lab found one person's DNA profile on
the shirt collar and one of the gloves. The analyst found more than one DNA
profile on the hat and compared it to a sample of defendant's DNA. The analyst
described the profile as "so rare that we can say . . . [defendant] is the source of
that profile." A medical examiner also testified for the State and confirmed the
victim was shot six times, perishing from fatal gunshot wounds.
In February 2019, defendant, Harris, and Thomas were indicted for
conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(1), and murder, N.J.S.A.
2C:11-3(a)(1) and (2) (counts one and two); possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count three); and unlawful
possession of a handgun (failure to have a permit), N.J.S.A. 2C:39-5(b)(1)
(count four).
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In March 2022, defendant and Harris were tried together, represented by
separate counsel. Thomas agreed to testify for the State. Prior to Thomas's
testimony before the jury, the trial court conducted a Rule 104(c) hearing to
determine the admissibility of the statements made amongst defendant, Harris,
and Thomas. During the hearing, defendant's trial counsel cross-examined
Thomas about the statements but did not argue for their exclusion.
Following the hearing, the trial court found the statements to have been
made voluntarily and reliably in furtherance of a conspiracy for which there was
independent evidence produced by the State. The court found:
There has been ample evidence brought by the State to
date showing[,] . . . in conjunction with the statements
made by . . . Thomas . . . in furtherance of a conspiracy.
The . . . statements were made, specifically first, "[H]e
right there" . . . [and also] "The one with the dreads,"
was stated[,] [referring to the victim]. This was while
they were in the minivan[,] according to the witness
who testified under oath today.
The witness then testified . . . the minivan was pulled
over. Another statement made was, "Do you still want
to do it?" That was from . . . Harris to [defendant],
according to . . . Thomas. And another statement, "If
you don't want to do it, I'll do it." And then [defendant]
eventually stated, "I'll do it," according to the
witness, . . . Thomas.
....
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[Defense counsel] will have the opportunity to cross-
examine the witness with regard to the statements. So,
for all these reasons [and] under the reasons for
bringing a 104(c) hearing under [N.J.R.E.] 803(b),
[and] under State v. Phelps[, 96 N.J. 500 (1984),] and
its progeny, . . . the statements will be allowed [and]
admitted.
After all counsel rested, the court held a jury charge conference. Counsel
agreed to omit that portion of the model jury charge pertaining to "statements of
defendant" where the court would normally "remind . . . or tell the jury . . . what
the statements were." Instead, it was agreed the court would leave the jury to
determine, as part of its fact-finding function, what statements, if any, defendant
actually had made.
The jury returned guilty verdicts on the charges of murder (count two),
possession of a weapon for an unlawful purpose (count three), and unlawful
possession of a weapon (count four). The jury hung on the conspiracy to commit
murder charge (count one), and the State dismissed that charge as to defendant.
Concerning co-defendant Harris, the jury hung on the conspiracy and murder
charges and acquitted him on both gun charges.
In August 2022, the trial court sentenced defendant to a thirty-year term
of imprisonment with thirty years of parole ineligibility for murder (count two),
subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Although the court
merged counts three and four with count two, it imposed a sentence of seven
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years for possession of a weapon for an unlawful purpose and a sentence of five
years for the unlawful possession of a weapon, both to run concurrently with
count two.
II.
On appeal, defendant raises the following arguments:
I THE JURY SHOULD HAVE BEEN INSTRUCTED
THAT IT COULD NOT CONSIDER THE CO[-]
CONSPIRATOR'S TESTIMONY CONCERNING
STATEMENTS PURPORTEDLY MADE IN THE
COURSE OF THE ALLEGED CONSPIRACY TO
COMMIT MURDER UNLESS IT FOUND
INDEPENDENT EVIDENCE OF THE ALLEGED
CONSPIRACY.
II THE CONVICTION FOR POSSESSION OF A
WEAPON FOR AN UNLAWFUL PURPOSE UNDER
COUNT [THREE] WAS PROPERLY MERGED
WITH THE CONVICTION FOR MURDER;
ACCORDINGLY, THE SENTENCE IMPOSED ON
COUNT [THREE] MUST BE VACATED.
III THE CONVICTION FOR POSSESSION OF A
WEAPON WITHOUT A PERMIT UNDER COUNT
[FOUR] WAS ERRONEOUSLY MERGED WITH
THE CONVICTION FOR MURDER AND SHOULD
BE VACATED, LEAVING DEFENDANT TO SERVE
THE LAWFUL SENTENCE IMPOSED ON COUNT
[FOUR].
We review the trial court's evidentiary rulings with deference. State v.
Hyman, 451 N.J. Super. 429, 441 (App. Div. 2017). Specifically, a trial court's
decision to exclude or admit evidence under the hearsay rules is reviewed for an
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abuse of discretion. Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.
369, 383-84 (2010). An abuse of discretion is found only when the court has
made "a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988).
The court's evidentiary decision should be sustained unless it resulted in a
"manifest denial of justice." State v. Perry, 225 N.J. 222, 233 (2016) (quoting
State v. Marrero, 148 N.J. 469, 484 (1997)).
Further, it is well established that "[w]hen a defendant does not object to
an alleged error at trial, such error is reviewed under the plain error standard."
State v. Singh, 245 N.J. 1, 13 (2021). The plain error standard requires a
determination of: "(1) whether there was error; and (2) whether that error was
'clearly capable of producing an unjust result,' R. 2:10-2; that is, whether there
is 'a reasonable doubt . . . as to whether the error led the jury to a result it
otherwise might not have reached[.]'" State v. Dunbrack, 245 N.J. 531, 544
(2021) (quoting State v. Funderburg, 225 N.J. 66, 79 (2016)). "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.'" State v. Clark, 251 N.J. 266,
287 (2022) (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)).
Finally, "[a]ppellate courts review sentencing determinations in
accordance with a deferential standard." State v. Fuentes, 217 N.J. 57, 70
(2014). We review the legality of a sentence de novo, "affording no special
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deference to the court['s] interpretation of the relevant statutes." State v. Nance,
228 N.J. 378, 393 (2017). We may correct an illegal sentence "at any time before
it is completed." State v. Murray, 162 N.J. 240, 247 (2000); see also R. 3:21-
10(b). If a defendant's sentence is illegal, it must be remanded for resentencing.
See State v. Romero, 191 N.J. 59, 80-81 (2007).
Statements in Furtherance of a Conspiracy
Defendant argues that in its final charge, the court should have instructed
the jury that unless it found independent evidence of a conspiracy, it should not
consider the co-conspirator's testimony concerning statements purportedly made
in furtherance of that alleged conspiracy. By extension, he argues that because
the jury did not convict him of conspiracy, admission of Thomas's testimony
violated his right to a fair trial.
In assessing these arguments, we consider our pertinent legal principles.
"Where two or more persons are alleged to have conspired to commit a crime,
any statement made by one during the course of and in furtherance of the
conspiracy is admissible in evidence against any other member of the
conspiracy." State v. Harris, 298 N.J. Super. 478, 487 (App. Div. 1997).
"Participation in a conspiracy confers upon co-conspirators the authority to act
in one another's behalf to achieve the goals of the unlawful scheme. Since
conspirators are substantively liable for the acts of their co-conspirators, they
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are equally responsible for statements by their confederates to further the
unlawful plan." Ibid."Hearsay" is "a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted." State v. Buda, 195 N.J. 278, 293 (2008); N.J.R.E. 801(c).
Hearsay is inadmissible unless it falls within one or more of the exceptions
enumerated in the evidence rules. State v. Branch, 182 N.J. 338, 348 (2005). A
statement is not excluded by the hearsay rule if it was "made at the time the
[party] and the declarant were participating in a plan to commit a crime . . . and
. . . made [it] in furtherance of that plan." N.J.R.E. 803(b)(5).
To admit a statement of a co-conspirator in evidence, the State must prove
that “[f]irst, the statement [was] made in furtherance of the conspiracy. Second,
the statement [was] made during the course of the conspiracy. Lastly, [there] is
evidence, independent of the hearsay, of the existence of the conspiracy and
defendant's relationship to it." State v. Taccetta, 301 N.J. Super. 227, 251 (App.
Div. 1997); see also Harris, 298 N.J. Super. at 488. "A statement is considered
to have been made 'in furtherance of the conspiracy' if the statement 'serves a
current purpose such as to promote cohesiveness, provide reassurance to a co-
conspirator or prompt one . . . to respond in a way that furthers the goal of the
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conspiracy.'" State v. Canfield, 470 N.J. Super. 234, 333 (App. Div. 2022)
(quoting State v. James, 346 N.J. Super. 441, 457-58 (App. Div. 2002)).
Before admitting a co-conspirator's statement, a "trial court must make a
preliminary determination of whether there is independent proof of the
conspiracy." State v. Savage, 172 N.J. 374, 403 (2002); see also N.J.R.E.
104(a)(1) ("The [trial] court shall decide any preliminary question about whether
a witness is qualified, a privilege exists, or evidence is admissible. In so
deciding, the court is not bound by evidence rules, except those on privilege and
[N.J.R.E.] 403."). The independent evidence can take various forms and "must
be substantial enough to engender a strong belief in the existence of the
conspiracy and of the defendant's participation." Phelps, 96 N.J. at 511. "[T]he
appropriate test [is] whether the prosecution has demonstrated by a fair
preponderance of evidence that the conspiracy existed and that the defendant
participated in it." Id. at 518.
The Phelps Court emphasized "the trial court alone determines whether
the conditions precedent to admission of co[-]conspirator hearsay have been
satisfied. These conditions . . . focus on the reliability of the hearsay and not its
relevance." Id. at 513-14. "Having the trial court rather than the jury evaluate
reliability before admitting or rejecting evidence recognizes the judge's skill and
experience." Id. at 515. "It is too much to expect jurors to be able to disregard
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evidence they have already properly heard upon their determination at some later
time that conditions precedent to admissibility have not been fulfilled." Id. at
516; see also id. at 515 n.3 (rejecting the argument that having the court decide
admissibility of a co-conspirator's statement interferes with the jury's fact-
finding function and explaining that "[t]he trial court's decision concerning
whether evidence is admissible does not decide the guilt or innocence of the
defendant," which remains "the jury's task.")
Importantly, the Phelps Court also rejected the contention that a co-
conspirator's hearsay statements may be considered by the jury only in
determining the conspiracy charge. Id. at 516. The Court explained, "the
evidence may be relevant on substantive issues other than conspiracy" and
"[o]nce the statement is admitted, it may properly be considered by the jury on
all matters with respect to which the statement is relevant." Ibid.
Here, the trial court followed the precepts of case law and the Rules of
Evidence. First, it held a Rule 104(c) hearing, making preliminary
determinations about the admissibility of hearsay evidence in accordance with
N.J.R.E. 803(b)(5). The court reasonably found the statements had strong
indicia of reliability and that there was "ample evidence brought by the State"
showing "that the statement[s] w[ere] made . . . during the course of a
conspiracy" and in furtherance of a conspiracy. It also found there to be reliable
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independent evidence of the conspiracy in the form of video, law enforcement
testimony, and physical evidence. In admitting statements by defendant and
Harris, the trial court properly applied the Supreme Court's holdings in Phelps
and Cagno. State v. Cagno, 211 N.J. 488 (2012). We see no error of judgment
or abuse of discretion.
The jury's inability to reach a verdict as to the conspiracy does not nullify
the trial court's decision to admit statements in furtherance of a conspiracy. As
the Court in Phelps observed, a co-conspirator's hearsay statements "may be
relevant on substantive issues other than conspiracy," such as the murder charge
in this case. See Phelps, 96 N.J. at 516 (citing State v. Louf, 64 N.J. 172, 176
(1973); State v. Yormark, 117 N.J. Super. 315, 336 (App. Div. 1971)).
Defendant next argues that the trial court committed reversible error by
failing to administer a tailored instruction that would have allowed the jury to
effectively reject the judge's findings (made out of the jury's presence) as to
independent evidence of a conspiracy. In other words, defendant argues it was
ultimately for the jury -- not the trial court -- to determine if there was
independent evidence of a conspiracy. In support of this position, defendant
relies on a dissenting opinion by Justice Handler in Phelps. The dissenting
Justice was concerned that "[i]f the judge alone resolves the preliminary
questions of the admissibility of the alleged co-conspirator's testimony, there is
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the possibility that the defendant has been deprived of trial by jury on a critical
question of fact." Id. at 528 (Handler, J., dissenting) (internal quotations
omitted). In the dissenting Justice's view, "remov[ing] from the jury the issue
of independent proof of the conspiracy relegates to the judge instead the task of
resolving the central issue of guilt – a result inconsistent with the long-protected
jury role." Id. at 534 (Handler, J. dissenting); see State v. Simon, 79 N.J. 191,
199 (1979) ("In the trial of a criminal cause, the ultimate responsibility for
determining guilt or innocence reposes solely in the jury and cannot be
preempted or dislodged by the court."). To ensure that the jury made the
essential finding of fact, the dissent concluded "that the jury, in its final
determination of the ultimate guilt or innocence of the defendant, should have
been instructed to disregard the hearsay conversations if it found that …
independent proof of a conspiracy was lacking." Phelps, 96 N.J. at 524
(Handler, J., dissenting).
The standard of review for a missing jury instruction, when, as here, a
defendant did not object at trial, is whether there was plain error "clearly capable
of producing an unjust result." R. 2:10-2. In review of the record, we perceive
nothing in the facts and circumstances that goes beyond the standard model jury
charge that would require special instructions. See generally, State v. Angoy,
329 N.J. Super. 79, 85 (App. Div. 2000) (when finding "the facts of the case and
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the claims of the State and the defense [are] quite clear[,]" the failure to tailor
the charge is not prejudicial error). Moreover, we note that the authority
defendant offers for such instruction rests on dissenting views, not the majority
holding in Phelps. We are satisfied that the charge as given provided the jury
with "sufficient guidance" and did not create any "risk that the [ ] ultimate
determination of guilt or innocence [was] based on speculation,
misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567 - 68 (1991).
Sentence Imposed
Defendant argues the trial court erred in sentencing defendant on counts
three and four, the weapons offenses. He asks this court to vacate the sentence
for the possession of a weapon for an unlawful purpose as that conviction was
properly merged with the murder conviction. He also asks us to reverse the
merger of the unlawful possession of a weapon charge with the murder charge.
The State agrees.
In State v. Diaz, our Supreme Court held "[w]hen the only unlawful
purpose in possessing the [weapon] is to use it to commit the substantive offense,
merger is required." 144 N.J. 628, 636 (1996). "When the jury is explicitly
instructed that the unlawful purpose was to use the gun against the victim of the
substantive offense . . . merger is required notwithstanding that the evidence was
sufficient to support a separate unlawful purpose." Id. at 641. This principle
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was reaffirmed in Tate, where the court merged the convictions because the
defendant "had no broader unlawful purpose for possessing the weapon." State
v. Tate, 216 N.J. 300, 313 (2013).
"[T]he failure to merge convictions results in an illegal sentence for which
there is no procedural time limit for correction" because merger implicates a
defendant's substantive state constitutional right against double jeopardy.
Romero, 191 N.J. at 80. Thus, "a reviewing court is not free to ignore an illegal
sentence," State v. Moore, 377 N.J. Super. 445, 450 (App. Div. 2005), and
should correct it, State v. Tavares, 286 N.J. Super. 610, 617 (App. Div. 1996).
Here, the court properly merged the possession of a weapon for an
unlawful purpose charge with the murder charge. Therefore, the court should
not have imposed a separate sentence on that weapon charge. Further, the court
erred in merging the unlawful possession of a handgun without a permit charge
with the murder charge because that weapon charge required proof of a separate
element. Thus, the sentence imposed for that weapon charge remains.
In sum, we affirm the murder conviction and the sentence the court
imposed for that conviction. We affirm the convictions on the weapons charges.
Because the trial court erred in imposing a sentence based on the possession of
a weapon for an unlawful purpose conviction, after it properly merged that
conviction with the murder conviction, we vacate the sentence imposed on the
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possession of a weapon for an unlawful purpose conviction. Although the court
erred in merging the unlawful possession of a handgun without a permit
conviction with the murder conviction, the sentence of five years with a
mandatory parole disqualifier of three and one-half years running concurrent
with the sentence for murder imposed by the court is lawful, and we affirm that
sentence. We remand and direct the trial court to amend the judgment of
conviction accordingly.
Affirmed in part, vacated in part, and remanded for correction of the
judgment of conviction. We do not retain jurisdiction.
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