STATE OF NEW JERSEY VS. MYKAL L. DERRY STATE OF NEW JERSEY VS. MALIK DERRY (14-06-2067, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-1125-18
A-1643-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MYKAL L. DERRY, a/k/a
MYKAC DERRY, MYKEL
DERRY, and STEVENS
MYKEL,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MALIK DERRY, a/k/a
MALIK F. DERRY, and
MYKELL WATSON,
Defendant-Appellant.
Submitted December 9, 2020 – Decided May 3, 2021
Before Judges Alvarez, Sumners, and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 14-06-2067.
Joseph E. Krakora, Public Defender, attorney for
appellant Mykal L. Derry (Frank M. Gennaro,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Malik Derry (Stephen W. Kirsch, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Daniel Finkelstein, Deputy Attorney
General, of counsel and on the briefs).
PER CURIAM
Tried by a jury, defendants Malik and Mykal Derry were convicted of the
murder of Tyquinn James, N.J.S.A. 2C:11-3(a)(1) and (2), and conspiracy to
commit murder, N.J.S.A. 2C:5-2 and 2C:11-3. On September 26, 2018, the trial
judge sentenced each defendant on the crime of murder to a term of fifty years
of imprisonment subject to the No Early Release Act's (NERA) eighty-five-
percent parole-bar. See N.J.S.A. 2C:43-7.2(a). A concurrent fifty-year term of
imprisonment for the conspiracy conviction was also imposed, and the judge
ordered $24,520 to be paid in restitution by each defendant. Defendants appeal,
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and we affirm, except that we remand for the limited purpose of correcting the
judgments of conviction to reflect required mergers.
Prior to the New Jersey proceedings, defendants were tried and convicted
in federal court for the following crimes: conspiracy to distribute one or more
kilograms of heroin (21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 860);
discharging a firearm in furtherance of the conspiracy (18 U.S.C.
§ 924(c)(1)(A)(iii)); using a telephone to facilitate drug trafficking (21 U.S.C.
§ 843(b)); distribution of heroin (21 U.S.C. §§ 841(a)(1) and (b)(1)(C)) (Mykal
only); and operating a drug stash house (21 U.S.C. § 856) (Mykal only). United
States v. Derry, 738 Fed. Appx. 107, 110 (3d Cir.), cert. denied, 139 S. Ct. 390(2018). The federal judge sentenced defendants to an enhanced term of life
imprisonment because defendants caused James's death.
Pre-trial, defendants moved unsuccessfully to dismiss the indictment on
statutory and double jeopardy grounds, arguing that their federal convictions
and enhanced sentences were based on the same facts as this case. The judge
denied the motion because the federal prosecution did not include charges of
murder or conspiracy to commit murder.
Also prior to trial, Malik filed a motion to bar the use of Mykal's federal
testimony in which he admitted to killing James, claiming he did so because the
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two had a dispute over a girl, not because he was involved in a drug conspiracy.
Malik did not cross-examine Mykal at the federal trial, and he argued that
admitting the evidence (1) would violate his right to confront Mykal as a witness
and (2) did not fall within the N.J.R.E. 804(b)(1)(A) prior testimony hearsay
exception because he did not have a similar reason to cross-examine Mykal in
the federal trial. The court denied that application, finding Mykal's testimony
admissible under N.J.R.E. 804(b)(1)(A) on the basis that Malik had a
sufficiently similar motive to cross-examine at the federal trial, and that his right
to confront witnesses was not violated because his strategic decision not to
cross-examine Mykal was voluntary.
Malik also unsuccessfully challenged the admission under N.J.R.E.
803(b)(5) (statements made in furtherance of a conspiracy) of certain text
messages between himself and Mykal, claiming that they were not relevant to
that purpose. The court disagreed.
During trial, both defendants objected to Federal Bureau of Investigations
(FBI) Special Agent Christopher Kopp's testimony regarding the meaning of
slang terms used in conversations overheard during a federal wiretap of
defendants' phones. They argued that since the State had not offered Kopp as
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an expert witness, his opinion testimony was improper. The court found Kopp's
interpretations admissible as lay opinion testimony.
Mykal sought to call a witness, Romeo Ramone, to challenge Kopp's
credibility in general, however, at a hearing outside the jury's presence, Ramone
invoked his Fifth Amendment privilege against self-incrimination and offered
little information. The court therefore excluded his testimony as irrelevant to
any significant issue.
Prior to the judge's final charge, defendants moved for a mistrial on the
ground that a juror had engaged in outside research on the case and had
presumably shared the information with other jurors. After individually
questioning each juror, the judge removed the individual who conducted the
research and another who may have answered dishonestly. Finding that this
corrected the problem created by the misconduct, the court denied defendants'
motion for a mistrial.
The killing was captured by surveillance cameras located in front of two
retail establishments, a liquor store and a restaurant. At approximately 7:38 p.m.
on February 10, 2013, James was shot three times by a man wearing a mask,
hood, and coat.
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The medical examiner testified the manner of death was homicide by
multiple gunshot wounds. One bullet pierced James's forehead above the left
eyebrow, another entered the left earlobe, and a third pierced the mid-portion of
the back, travelling through the lung and liver.
The FBI had been conducting wiretaps of defendants' conversations from
October 2012 through March 2013. Kopp testified that during that time, he
listened to approximately 7000 calls, becoming familiar with the different
voices, and code or slang terms used. He was called in just before 8:00 p.m. on
the night of the murder to listen to defendants' phone calls. Because they are
consequential to the State's case and the legal challenges which follow, we
reproduce them at some length.
Kopp testified that at 7:09 p.m., Malik called Mykal and said: "Come
around [the apartment complex] right now because this [n***a's] around here
too, you hear." Mykal asked: "Who?" and Malik responded: "Ol' boy. The
white boy." Again, Mykal asked: "Who?" and Malik said: "Umm, T.Y."
"T-Weeze." Mykal replied: "Where at?" and Malik answered: "Yeah. [location
of murder]." Mykal said: "All right. I'm going to try to pass through."
Kopp testified that the name mentioned in the conversation was an
apartment complex and that James's nicknames were T.Y. and T-Weez. When
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someone said they were going to "slide past" they meant that they were going to
go to or go by a certain location.
At 7:28 p.m., Mykal called Malik and said: "Yo, Lik. Yo." Malik
apparently answered the call but did not respond. Kopp testified that "Lik" was
Malik's nickname.
One minute later, Mykal called Malik again. Malik answered: "Yo, where
you at?" Mykal answered: "I'm in the parking lot. Where you at? In what
parking lot?" Malik replied: "Umm, [the location of the murder]." Mykal said:
"Stay right there because that [n***a] right in front of [location of the murder],
you hear?" Malik replied: "I know," and Mykal said: "All right. Go in back
of [location of the murder] parking lot." Malik said: "I'm right here, bro."
At 7:33 p.m., Mykal asked Malik: "Where you at, man?" Malik answered:
"I'm in the back of [location of the murder], bro, fuck." Mykal replied: "Come
over here, right where these trucks at right here in this other parking lot." Malik
said: "Oh, all right."
At 7:37 p.m., Mykal called Shaamel "Buck" Spencer, who Kopp said was
Mykal's close friend, and told Spencer to "[t]urn that scanner on." After an
indiscernible statement, Mykal said: "You already fuckin' know." Spencer
replied: "Oh, yeah." Mykal said: "Lik just splashed T.Y." and Spencer asked:
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"He did?" Mykal answered: "Yeah, that [n***a's] gone." Kopp testified that
when Mykal told Spencer to "turn that scanner on," he believed that Mykal was
asking Spencer to use a smart phone application "that was a scanner for police
radio communications."
At 7:41 p.m., Mykal called Kimberly Spellman, who was then pregnant
with his child. She lived four or five blocks away from the murder location.
Mykal asked her: "You good?" She said: "Let me use -- use the bathroom real
fast, all right?" He replied: "Then come back, get me." She said: "All right."
At 7:43 p.m., Mykal called Malik, and Malik said to him: "She said she
comin' right back." Mykal said: "I know. You good?" Malik replied: "Yeah.
I'm Gucci." "Why? Where you at? Nah, that's all right. I'll see you later."
Kopp testified that "Gucci" meant "good."
At 7:52 p.m., Spellman called Mykal, and Mykal asked her: "You out
there?" She replied: "Yeah."
At 7:55 p.m., Mykal sent Malik a text that said, "change up." Two minutes
later, Mykal texted Spencer: "Iz he man dwn?" Kopp testified that "man dwn"
referred to a man who had been shot. Spencer replied: "I'm tryin' a get my
scanner to work now." Mykal replied: "I think he is Lik, my [n***a]." Spencer
responded: "Caught dat ass slippin'." Kopp testified that here "slippin'" was
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used to refer to a shooting; "it would refer to the person who had been shot at
that they had . . . had been caught slipping." Mykal wrote: "Word. I lined 'em
n . . . the crazy part, bitch [n***a] was grillin' me before he got splashed." Kopp
testified that when someone set another person up to be the victim of a shooting,
the phrase "lined 'em up" was used to refer to the set up. Spencer replied: "ha,
ha, ha, ha."
At 8:09 p.m., Mykal called Malik and told Malik: "Not too much talkin',
bro. You hear (indiscernible word)." Malik said: "I know," and Mykal said:
"All right. I'll be there to get you in probably like an hour."
At 8:31 p.m., Spencer texted Mykal: "Man dwn."
At 8:46 p.m., Mykal called Malik. Mykal asked Malik where he was, and
Malik answered: "I'm in the trap." Mykal replied: "Hey, yo. I'll be over there,
you hear me?" Kopp said "the trap" referred to a residence five or six blocks
away from the murder location.
At 8:53 p.m., Terry "Mace" Davis, another of Mykal's friends, called
Mykal. Mykal asked Davis: "Y'all still in the hood?" Davis replied: "Yeah.
We got the room at the Taj." Mykal asked: "You at the room?" and Davis
replied: "Nah, we -- we in the hood, but we got the room at the Taj." Mykal
said: "Hey, I'm 'bout to come back around there. Who got the room, you know."
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Davis replied: "Yeah. We all put up though. You know, we all got the room."
Mykal responded: "All right. Yeah, we need somebody to spot, to squat at,
'bout come around." Davis said: "Yeah. You already know shit. That's why
we grabbed that. But I got my own -- what (indiscernible few words), umm, that
mother fuckin', 'bout what I think, whatever that shit called. I got -- I got my
own little shit --" Mykal asked: "When y'all goin' up there?" Davis said: " --
in Best Western. I got shit at the Best Western already you heard?" Mykal said
"I might come around, you hear that?" Davis said: "All right. Hit the phone
when you get by the door."
At 9:03 p.m., Malik called Mykal, and Mykal said: "Yo, I'm comin' now,
bro." Mykal asked him where he was and if he was "in the crib." Malik replied:
"Uh, I'm in. Damn, they spinnin' this shit . . . they spinnin' the hood." Mykal
asked: "Who squally?" Malik replied: "Yeah. They just came to the crib."
Mykal asked: "What crib," and Malik replied: "The crib I told you I was at."
Mykal asked: "Why they come there?" and Malik replied: "I don't know
(indiscernible) . . . . Come on, bro, where you at?" Mykal said: "Yo, Lik" and
Malik said: "Come get me." Mykal again asked Malik where he was, and Malik
said: "In the second." Mykal said: "All right. Stay right there." Kopp said
that "spinnin" referred to someone who was driving around an area. Kopp
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testified "squally" meant police. "In the second" referred to the second village
of a city public housing project, and "one of the traps" was a specific address, a
drug house.
At 9:05 p.m., Mykal called Malik, and Malik asked him where he was.
Mykal replied: "I'm almost at the second." Malik told him to "pull up" at
"Kentucky and Drexel." Kopp testified that "Kentucky actually splits [the
original public housing project] in half and . . . Drexel Avenue splits the second
village in half." That location was approximately one block away: "It's just
across the courtyard."
At 9:11 p.m., Mykal called another friend, Kasan Hayes. During that
conversation, Davis took the phone from Hayes and spoke with Mykal. The
three of them talked about "the room" and who had keys to it. Davis said he had
the keys, and then Mykal said: "All right. 'Cause me and Lik we tryin' dip you
hear? Matter fact, I'm going to just come back. I'm gonna come back you hear?
I'm gonna drive for a minute and come back you hear, my [n***a]? Cause it's
hot around here." Kopp explained that "dip" meant leave and that a "hot area"
was one with a police presence.
At 10:44 p.m., Mykal texted yet another friend, Tyrone Ellis: "Yo, you
somewhere . . . where it's cable? Watch the news for me, bra."
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At 11:08 p.m., Spellman texted Mykal: "First homicide of da year, head
shot." Two minutes later Mykal responded: "He [presumably Malik] gud, he
acting like it's nothn'. CTFU." Kopp said CTFU was an abbreviation for
"crackin' the fuck up." At 11:21 p.m., Mykal texted her: "This [n***a] iz a true
Derry."
On cross-examination, Kopp acknowledged that "numerous attempts" to
take James's life had been made. None of those attempts involved Malik,
however. Before James was shot, he had been back and forth in front of the
businesses at the murder location for some time, and other people were in the
area.
On February 11, 2013, law enforcement searched Spellman's home,
locating a gun hidden in the drop ceiling. Law enforcement had seen Mykal and
Spellman enter the residence at various times between December and January.
They had not seen Malik enter the home, nor had they seen Mykal enter, on
February 10 or 11. They also had seen Mykal drive a white Chevy Malibu.
New Jersey State Police Detective Christopher Clayton, then assigned to
the Ballistics Unit, testified as the State's firearms expert. He examined the
handgun found in Spellman's home in the drop ceiling and test-fired the weapon.
After comparing discharged shells with the bullets recovered from James's body
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and the shell casings found at the scene, he determined they were fired from that
handgun. No fingerprints were found either on the gun or the bullets.
Defendants were arrested and their cell phones were seized.
Atlantic County Prosecutor's Office Sergeant Ian Joseph Finnimore
testified that Malik was "substantially taller" than Mykal. Malik was around six
feet three-to-five inches, and Mykal was less than six feet in height. The two
stood for the jury.
At the prior federal proceeding, defendants gave statements, which were
read into evidence. In Malik's statement, he said that Mykal had "nothing to do
with nothing" and that he wanted the court to "let [Mykal] go."
Mykal said in his federal statement that Malik "was in all those calls" that
Kopp listened to and that he had personal problems with James and Sedrick
"Sed" Lindo. He had planned to kill James and Lindo because they had shot at
him. He did not get the chance to kill Lindo because someone else killed him
first, but he shot and killed James. Mykal said he rode up to James on a bike
and shot him in the head with the gun found in the ceiling of Spellm an's home.
Mykal also said that just before the shooting, Malik had called and told
him where James could be found. Malik did not know that Mykal was going to
kill James, but Malik knew that he had a problem with James. Mykal explained
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Lindo and James had tried to kill him in front of his son, so he planned to kill
both of them. His problem with Lindo was over a woman named Tasha whom
they had been involved with in 2011.
Mykal claimed the voices on the call that Kopp listened to were his and
Malik's, and that he had the handgun with him when Malik called to tell him
where James was. Just before the shooting, he was driving a white rental car at
the Showboat casino. He parked the car, got the bike from Malik, and then rode
it to the location where he killed James. He lied to Spencer and said "Lik just
splashed T.Y." to make Malik "look tough." After the shooting, Mykal said he
went to the public housing project, and Spellman picked him up.
When he asked Spencer if James was "man dwn," Mykal was asking if
James was dead, and Spencer told him he had to use his scanner to try to find
out if police were investigating. Spellman then sent him a text saying it was the
first homicide of the year, his reply of "CTFU" meant "crackin the fuck up."
Mykal said he had lied to Spellman and led her to believe that Malik did the
shooting. He was referring to Malik when he said "He gud, he acting like nothn."
Mykal also told Ambrin Qureshi that Malik was the shooter, and that
Malik was going to take the rap for the crime. Mykal said Spellman did not
know he put the gun in the drop ceiling of her home.
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We discuss additional facts developed during the trial in the relevant
section of the opinion, and combine defendants' points for purposes of our
discussion. Malik raises the following on appeal:
POINT I
THE JUDGE IMPROPERLY DENIED
DEFENDANT'S REQUEST TO DISMISS THE
MURDER AND CONSPIRACY CHARGES
PURSUANT TO N.J.S.A. 2C:1-3F; DEFENDANT
WAS FULLY AND COMPLETELY PUNISHED VIA
A FEDERAL PROSECUTION THAT RESULTED IN
A LIFE SENTENCE FOR COMMITTING MURDER
IN THE FURTHERANCE OF A FEDERAL DRUG
CRIME, AND NEW JERSEY HAD NO LEGITIMATE
PENAL INTEREST IN A STATE PROSECUTION
FOR THAT SAME MURDER.
POINT II
THE JUDGE VIOLATED DEFENDANT'S
CONSTITUTIONAL RIGHTS TO
CONFRONTATION AS WELL AS N.J.R.E.
804(B)(1)(A) WHEN, OVER OBJECTION, HE
ADMITTED TESTIMONY OF THE CODEFENDANT
FROM A FEDERAL CASE IN WHICH THE
DEFENDANT'S COUNSEL DID NOT CROSS-
EXAMINE THE CODEFENDANT BECAUSE HE
DID NOT HAVE THE SAME MOTIVE TO CROSS-
EXAMINE HIM AT THAT TRIAL AS HE WOULD
HAVE HAD IN THIS TRIAL.
POINT III
OVER OBJECTION, THE JUDGE IMPROPERLY
ADMITTED AGAINST THE DEFENDANT ALL OF
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THE TEXT MESSAGES AND RECORDINGS OF
PHONE CALLS INVOLVING THE CODEFENDANT
UNDER THE THEORY THAT THEY ALL WERE
MADE "IN FURTHERANCE OF" A CONSPIRACY
UNDER N.J.R.E. 803(B)(5), WHEN, IN FACT, THE
RULE AND THE CASE LAW PLAINLY EXCLUDE
STATEMENTS MADE MERELY "ABOUT" A
CONSPIRACY, RATHER THAN "IN
FURTHERANCE OF" IT.
POINT IV
OVER OBJECTION, THE STATE IMPROPERLY
CALLED A LAY OPINION WITNESS TO TESTIFY
TO THE MEANING OF SLANG TERMS USED BY
THE DEFENDANT AND OTHERS IN
INTERCEPTED PHONE CALLS AND TEXTS,
WHEN THE CASE LAW AND N.J.R.E. 701 ARE
CLEAR THAT ONLY EXPERT TESTIMONY IS
APPROPRIATE TO INTERPRET SLANG UNLESS
THE WITNESS IS A PARTICIPANT IN THE
CONVERSATION, WHICH THIS WITNESS WAS
NOT.
POINT V
THE MATTER SHOULD BE REMANDED FOR A
RESTITUTION HEARING; NO FINDING WAS
MADE OF DEFENDANT'S ABILITY TO PAY THE
LARGE RESTITUTION ORDER.
Mykal asserts the following:
POINT ONE:
DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT PURSUANT TO N.J.S.A. 2C:1-3f
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AND N.J.S.A. 2C:1-11 WAS WRONGFULLY
DENIED.
POINT TWO:
SPECIAL AGENT KOPP OFFERED INADMISSIBLE
LAY OPINION INTERPRETING INTERCEPTED
CONVERSATIONS.
POINT THREE:
THE TRIAL COURT UNDULY PREJUDICED
DEFENDANT BY EXCLUDING THE TESTIMONY
OF DEFENSE WITNESS ROMEO RAMONE.
POINT FOUR:
THE TRIAL COURT WRONGFULLY DENIED
DEFENDANT'S MOTION FOR A MISTRIAL DUE
TO JURY MISCONDUCT.
POINT FIVE:
THE SENTENCE OF [FIFTY] YEARS SUBJECT TO
THE NO EARLY RELEASE ACT WAS EXCESSIVE.
I.
Defendants contend that, in light of their federal convictions and
sentences, the court erred in denying their motions to dismiss the indictment.
They argue that the underlying facts in both prosecutions were the same, and the
enhanced federal sentence of life imprisonment punished them for causing
James's death.
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Two statutes address the dismissal of an indictment based on a prior
prosecution, namely, N.J.S.A. 2C:1-3(f) and N.J.S.A. 2C:1-11. N.J.S.A.
2C:13(f) relates to dismissal of New Jersey prosecutions where a defendant has
been prosecuted in "another jurisdiction," including another state, while
N.J.S.A. 2C:1-11 requires dismissal where a defendant has been prosecuted for
the same conduct by the federal government. State v. Gruber, 362 N.J. Super.
519, 528 (App. Div. 2003) (discussing State v. Goodman, 92 N.J. 43, 51-53
(1983)); see also Cannel, New Jersey Criminal Code Annotated, cmt. 6 on
N.J.S.A. 2C:1-3 (2020).
In relevant part, N.J.S.A. 2C:1-3(f) provides:
[T]he court may dismiss, hold in abeyance for up to six
months, or, with the permission of the defendant, place
on the inactive list a criminal prosecution under the law
of this State where it appears that such action is in the
interests of justice because the defendant is being
prosecuted for an offense based on the same conduct in
another jurisdiction and this State's interest will be
adequately served by a prosecution in the other
jurisdiction.
[N.J.S.A. 2C:1-3(f).]
In relevant part, N.J.S.A. 2C:1-11 provides:
When conduct constitutes an offense within the
concurrent jurisdiction of this State and of the United
States, a prosecution in the District Court of the United
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States is a bar to a subsequent prosecution in this State
under the following circumstances:
a. The first prosecution resulted in . . . a
conviction . . . and the subsequent prosecution is based
on the same conduct, unless (1) the offense of which
the defendant was formerly convicted . . . and the
offense for which he is subsequently prosecuted each
requires proof of a fact not required by the other and
the law defining each of such offenses is intended to
prevent a substantially different harm or evil or (2) the
offense for which the defendant is subsequently
prosecuted is intended to prevent a substantially more
serious harm or evil than the offense of which he was
formerly convicted . . . .
[N.J.S.A. 2C:1-11.]
We review a trial court's application of a statute under the de novo standard of
review, and a court's discretionary decision under N.J.S.A. 2C:1-3(f) for abuse
of discretion. Gruber, 362 N.J. Super. at 527.
In this case, defendants relied on both statutes in support of their motions
to dismiss the indictment. The trial court denied the motions on the ground that
defendants were not prosecuted for murder in federal court, as they only
received an enhanced penalty. He opined that the distinction was dispositive.
Defendants continue to take the position that the court should have
exercised its discretion and granted the motion to dismiss because the federal
prosecution and life sentence fully served the State's interest. Their federal
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convictions and sentences are final, as the Third Circuit affirmed both, and the
Supreme Court denied certiorari. Derry, 738 Fed. Appx. 107, cert. denied, 139
S. Ct. 390 (2018). Mykal also argues that the court should have dismissed the
indictment under N.J.S.A. 2C:1-11 because the state prosecution was based on
the same conduct as the federal prosecution.
The argument that relies on N.J.S.A. 2C:1-3(f) must fail. Defendants were
not prosecuted for the killing. Thus, they would suffer no unfairness from
"multiple prosecutions." Gruber, 362 N.J. Super. at 528.
The judge also properly denied the motion filed under N.J.S.A. 2C:1-11
because the crimes for which defendants were prosecuted in federal court did
not include murder and conspiracy to commit murder. Conviction of the crimes
in federal court did not require proof of an intentional killing.
That the federal conviction resulted in an enhanced penalty based on
James's death does not bar this prosecution. See State v. Walters, 279 N.J.
Super. 626, 631 (App. Div. 1995) ("Prosecutions resulting in convictions in
which sentencing is enhanced in the federal courts simply do not bar subsequent
prosecution of the alleged offense in this State" under N.J.S.A. 2C:1-11).
Simply stated, the crimes for which defendants were prosecuted in federal court
included neither murder, "a substantially more serious harm or evil," nor
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conspiracy to commit murder. They did not require proof of an intentional
killing. See N.J.S.A. 2C:1-11.
II.
Malik contends the court erred in admitting Mykal's federal trial testimony
against him. He asserts the testimony denied him the right to confront witnesses
and should have been excluded under N.J.R.E. 804(b)(1)(A) (prior testimony of
an unavailable witness) because he did not cross-examine Mykal at the federal
trial, where his motive to do so was not similar to his motive in this case.
Mykal was unavailable to testify at the state trial because of his privilege
against self-incrimination. Malik, however, had the opportunity to cross-
examine Mykal at the federal trial.
Even if the court admitted the testimony in error, the error was harmless
in light of the significant evidence of guilt otherwise introduced. Moreover,
because Malik could have cross-examined Mykal at the federal trial, the
admission of the testimony did not violate his right to confront witnesses.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution afford an accused in a criminal
case the right "to be confronted with the witnesses against him." U.S. Const.
amend. VI; N.J. Const. art. I, ¶ 10. The Confrontation Clause prohibits the use
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of out-of-court testimonial statements when the defendant did not have the
opportunity to cross-examine the witness on the statement. State in the Interest
of J.A., 195 N.J. 324, 351 (2008) (discussing Crawford v. Washington, 541 U.S.
36, 51-52 (2004)). Thus, to establish a Confrontation Clause violation, a
defendant must show that he or she was denied the opportunity to cross-examine
a witness who provided a testimonial statement. State v. Nyhammer, 197 N.J.
383, 414 (2009).
The Confrontation Clause does not preclude all forms of hearsay from
being used as evidence at trial. State in the Interest of J.A., 195 N.J. at 342.
"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. Branch, 182 N.J. 338, 357 (2005) (quoting N.J.R.E. 801(c)).
"Hearsay is not admissible except as provided by [the Rules of Evidence] or by
other law." N.J.R.E. 802.
N.J.R.E. 804(b)(1)(A) provides an exception to the hearsay rule for prior
testimony of an unavailable witness:
Subject to Rule 807 [discretion of court to exclude
evidence under certain exceptions], the following are
not excluded by the hearsay rule if the declarant is
unavailable as a witness.
(1) Testimony in Prior Proceedings.
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(A) Testimony that: (i) was given by a witness at
a prior trial of the same or a different matter, or in a
hearing or deposition taken in compliance with law in
the same or another proceeding; and (ii) is now offered
against a party who had an opportunity and similar
motive in the prior trial, hearing or deposition to
develop the testimony by examination or cross-
examination.
[N.J.R.E. 804(b)(1)(A).]
Where a witness asserts the privilege against self-incrimination, the court may
find him or her unavailable for purposes of N.J.R.E. 804(b)(1)(A). State v.
McInerney, 450 N.J. Super. 509, 512 (App. Div. 2017).
We review an evidentiary hearsay ruling under the abuse of discretion
standard, affording no deference to questions of law. Ibid. Under the abuse of
discretion standard, the trial court's ruling will not be disturbed unless it "was
so wide of the mark that a manifest denial of justice resulted." State v. Perry,
225 N.J. 222, 233 (2016) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
Where admission of evidence under a hearsay exception results in a
Confrontation Clause violation, however, the evidence must be excluded.
Branch, 182 N.J. at 369-70.
At trial, Malik argued that Mykal's federal trial testimony was
inadmissible because he had no motive to cross-examine him at the federal trial
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and did not do so. Because the charges differ in the State trial, he contends his
motive to cross-examine is also different. Malik asserts that Mykal's testimony
was highly prejudicial because he admitted to shooting James and conspiring
with Malik to do so.
The trial judge found Mykal's testimony admissible, reasoning that while
the federal and state cases were different, they bore similarities, and Malik had
the opportunity to cross-examine Mykal. That Malik chose not to do so did not
alter the fact that he had the option to cross-examine.
Malik points out that in the federal case, defendants were charged with
discharging a weapon in furtherance of a drug conspiracy, and that discharging
the weapon to settle a dispute over a girl, as his brother claimed, was a defense
to the charge. In the state prosecution, however, Mykal's testimony served as
an admission, implicating Malik in the conspiracy to kill James. Thus, Malik's
motivation to cross-examine Mykal was different. That the motive was different
does not nullify the fact that the option existed. See Nyhammer, 197 N.J. at 414(explaining that a confrontation clause challenge requires a showing that the
defendant was denied the opportunity to cross-examine a witness who provided
a testimonial statement).
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Were we to accept, which we do not, that the court abused its discretion
in concluding that the motive was similar and admitting the statement, the error
would be harmless. The evidence against defendants was overwhelming.
Defendants' recorded phone conversations and text messages demonstrate that
they planned the murder after locating James, and then took orchestrated steps
to avoid detection. Police also found the gun used to kill James at Mykal's
girlfriend's home. Admission of Mykal's testimony was not "clearly capable of
producing an unjust result." See R. 2:10-2.
III.
During the 104 hearing, Ramone refused to answer most questions,
asserting his Fifth Amendment privilege against self-incrimination. He denied
that he had ever attempted to kill James, and refused to answer questions
regarding whether James had been sexually involved with the woman Mykal
claimed was the reason for his conflict with James.
Contrary to Mykal's arguments on appeal, Ramone's very limited
testimony would not have established third-party guilt, nor would it have
impeached Kopp's and Atlantic County Prosecutor's Office Detective Michael
Graham's credibility because Ramone said he acted as their informant. The
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judge agreed with the State, refusing to allow Ramone to testify because he had
no relevant information to offer with respect to the issues before the jury.
Mykal's position that Ramone's testimony was relevant to the officers'
credibility, and denied him the ability to present a complete defense, does not
warrant discussion in a written opinion. R. 2:11-3(e)(2). To the minimal extent
his testimony may have impacted Kopp's credibility in general, the probative
value was outweighed by the risk the testimony would confuse or mislead the
jury. See N.J.R.E. 403(a).
IV.
Malik contends that the court erred in admitting, pursuant to N.J.R.E.
803(b)(5) (statements made in furtherance of a conspiracy), a number of the text
messages sent just after the shooting, reasoning that the conspiracy was
complete by that point. (Mab29-Mab33; Malik's point III). The texts proved the
conspiracy to commit murder, however, because they included discussions
regarding flight in order to avoid detection.
N.J.R.E. 803(b) sets forth hearsay exceptions for certain statements made
by a party-opponent. Section (5) includes "a statement made at the time the
party-opponent and the declarant were participating in a plan to commit a crime
or civil wrong and the statement was made in furtherance of that plan." N.J.R.E.
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803(b)(5). Where a defendant objects to testimony under this rule, the State
must show the statement was "made in furtherance of the conspiracy" and
"during the course of the conspiracy." State v. Savage, 172 N.J. 374, 402 (2002)
(quoting State v. Phelps, 96 N.J. 500, 509-10 (1984)). Statements made in
furtherance of flight fall within the N.J.R.E. 803(b)(5) exception. Id. at 403.
Malik contends that the following text messages were inadmissible under
this exception because they were not made in furtherance of the conspiracy to
avoid detection, but were merely "about" the shooting:
1. Mykal's text to Spencer that "Lik just splashed
T.Y."
2. Spencer's text to Mykal asking "Iz he man dwn?"
3. Spencer's text: "Caught dat ass slippin'"
4. Mykal's text to Spencer: "Word. I lined 'em n
. . . the crazy part, bitch [n***a] was grillin' me before
he got splashed"
5. Spencer's reply of "ha, ha, ha, ha"
6. Spencer's text to Mykal: "Man dwn"
7. Spellman's text to Mykal: "First homicide of da
year, head shot"
8. Mykal's reply that he was "ctfu" and that Malik
was "a true Derry"
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The court found the statements in furtherance of the conspiracy and
therefore admissible under N.J.R.E. 803(b)(5). The court did not elaborate , but
accepted the prosecutor's argument that the statements were made in an effort to
avoid detection.
The statements clearly implicate both defendants, who are
co-conspirators. In the texts, Mykal informs Spencer that Malik had just shot
and killed James, thus explaining his request that Spencer listen to his police
scanner to keep him informed of police activity. Mykal later contacted Spencer
to find a ride for Malik. These eight messages were not distinct and separate
from the conversations more explicitly about avoiding detection. They were
included in the ongoing effort to flee from the authorities. See State v. Soto,
340 N.J. Super. 47, 62 (App. Div. 2001) ("A statement is considered to have
been made in the course of a conspiracy even when the [underlying] crimes [of
the conspiracy] have been completed, as long as all of the conspiracy's
objectives and goals have not yet been met."). Thus, the judge did not abuse his
discretion in admitting the statements. See Phelps, 96 N.J. at 510 ("Since
coconspirators are substantively liable for the acts of their coconspirators in
furtherance of the common plan, so too should they be responsible for statements
uttered by coconspirators to further that plan.").
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V.
Defendants contend that the judge erred in relying on N.J.R.E. 701
(opinion testimony of a lay witness) when he allowed Kopp to testify regarding
the definitions of slang terms used in defendants' recorded telephone calls and
seized text messages. The rule states: "If a witness is not testifying as an expert,
the witness' testimony in the form of opinions or inferences may be admitted if
it: (a) is rationally based on the witness' perception; and (b) will assist in
understanding the witness' testimony or determining a fact in issue." N.J.R.E.
701. Although we agree with defendants, ultimately the error is harmless
because Kopp would have qualified as an expert.
A law enforcement officer ordinarily may not offer lay opinion testimony
on the meaning of slang terms unless he was an actual participant in the
conversation, and based his understanding of the terms on personal perception.
State v. Hyman, 451 N.J. Super. 429, 450 (App. Div. 2017) (discussing State v.
McLean, 205 N.J. 438, 458-59 (2011) and State v. Johnson, 309 N.J. Super. 237,
244 (App. Div. 1998)). When based on the officer's "training and experience
and knowledge of [an] investigation," the opinion is more accurately
characterized as an expert opinion. Hyman, 451 N.J. at 448-49 (quoting
McLean, 205 N.J. at 456 and explaining that an officer's opinion does "not
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become a lay opinion because [the officer] heard the wiretaps with his own ears,
any more than a non-treating physician's diagnosis becomes a lay opinion
because the physician's own hands were used to conduct an independent medical
examination.").
N.J.R.E. 702 provides: "If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise."
To be admissible under this rule,
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror;
(2) the subject of the testimony must be at a state of
the art such that an expert's testimony could be
sufficiently reliable; and
(3) the witness must have sufficient expertise to
explain the intended testimony.
[State v. Harvey, 151 N.J. 117, 169 (1997).]
Where the court erroneously admits as lay opinion testimony, as opposed
to expert testimony, an officer's interpretation of the meaning of slang, the error
will be harmless if the officer would have qualified as an expert and the
inadmissible lay opinion testimony was unlikely to affect the outcome. Hyman,
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451 N.J. Super. at 458 (quoting State v. J.R., 227 N.J. 393, 417 (2017) for the
proposition: "Convictions after a fair trial, based on strong evidence provin g
guilt beyond a reasonable doubt, should not be reversed because of a technical
or evidentiary error that cannot have truly prejudiced the defendant or affected
the end result.").
Kopp testified to his understanding of the meaning of the parties' slang in
the wiretap conversations, based on his training, experience and knowledge of
the underlying investigation, not his participation in the conversations. Thus,
his opinion should have been offered as expert opinion testimony. Hyman, 451
N.J. Super. at 448-49. The admission was harmless error, however, because
Kopp's experience and training would have qualified him as an expert. See id.
at 458.
Kopp had been an FBI agent for twelve years and had served as a police
officer in Arizona for five-and-one-half years prior to that. With respect to this
wiretap, which lasted from October 2012, until late March 2013, and included
approximately 7000 calls, Kopp testified he had developed familiarity with the
individuals' voices, and the slang or code terms they used. Throughout his
testimony interpreting the slang, he testified that his understanding of the terms
used was based on his experience. Kopp would have qualified as an expert
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31
witness. The court's error in admitting his testimony as lay opinion was
therefore harmless.
VI.
Mykal contends the court erred in denying his motion for a mistrial based
on jury misconduct. "A mistrial should only be granted 'to prevent an obvious
failure of justice.'" State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v.
Harvey, 151 N.J. 117, 205 (1997)). In deciding the motion, "trial courts must
consider the unique circumstances of the case." Ibid. If there is "an appropriate
alternative course of action," the court should deny the motion. Ibid. (quoting
State v. Allah, 170 N.J. 269, 281 (2002)). The decision to grant or deny a
mistrial is within the trial court's discretion and will not be disturbed on appeal
"absent an abuse of discretion that results in a manifest injustice." Ibid. (quoting
State v. Jackson, 211 N.J. 394, 407 (2012)).
In this case, the juror misconduct issue arose after summations but before
the court instructed the jury. Juror number four notified the court that juror
number seven had said that she had researched the case on the internet. Juror
number four believed that juror number one may have overheard the
conversation.
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The court then called each juror to sidebar and asked whether: anyone
had approached them about the case or discussed the case with them; they had
done any research of the case on their own; and anything had happened to cause
them concern. All jurors except number four answered "no" to the questions.
Defense counsel noted for the record that juror number one had "lowered his
eyes" when the court asked about research.
Juror number four explained to the court that while she and the other jurors
were sitting in the jury assembly room, juror number seven had told her that she
had researched "the trial of the defendants and the attorneys." Juror number four
said: "I was just so taken back, I just picked up my phone and started texting
my girlfriend and daughter to the point where she could feel my
uncomfortableness." Juror number seven then said, "I probably should have
never said that" and stood up and walked away.
The conversation made juror number four feel "so conflicted" in light of
the oath she had taken as a juror that she discussed the incident with her family
that night. She did not discuss the case with her family; she only discussed the
juror who had said she had done research. She also did not know what juror
number seven's research had revealed, since she quickly ended the conversation.
Juror number one had been sitting next to juror number seven at the time, but
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juror number four did not know whether juror number one had overheard the
conversation. Juror number four said the incident did not affect her ability to
render a fair verdict based on the evidence.
The court denied defendants' motion to remove jurors number one, four,
and seven. The judge, however, excused jurors number one and seven, finding
juror number four credible. The judge further found juror number four had
displayed good faith in reporting the incident and there was no basis upon which
to excuse her. In his opinion, she maintained her ability to remain impartial and
decide the case based on the facts presented at trial.
The court did not abuse its discretion in declining to remove juror number
four or declare a mistrial. Nothing in the record suggests the entire jury panel
was tainted by juror number seven's conduct. The judge chose an "appropriate
alternative course of action." See Smith, 224 N.J. at 281.
VII.
The judge did not impose an extended term, as the State requested, upon
Mykal because no benefit would be gained given his federal sentence, nor would
there be a basis to impose a consecutive term to that life sentence. Mykal
contends on appeal that his aggregate sentence of fifty years imprisonment is
manifestly excessive.
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In weighing the aggravating and mitigating factors, a trial court must
conduct a qualitative, not quantitative, analysis. State v. Kruse, 105 N.J. 354,
363 (1987). Where an element of the offense is encompassed within an
aggravating factor, the court may not "double-count" that element by finding the
aggravating factor. State v. Fuentes, 217 N.J. 57, 74-75 (2014); State v.
Kromphold, 162 N.J. 345, 353 (2000). The court must state the reasons for the
sentence, including its findings on the aggravating and mitigating factors.
N.J.S.A. 2C:43-2(e); R. 3:21-4(g). A sentence should only be disturbed when
the trial court failed to follow the sentencing guidelines, when the aggravating
and mitigating factors are not supported by the evidence, or when application of
the guidelines renders a sentence clearly unreasonable. State v. Roth, 95 N.J.
334, 364-65 (1984). The facts and law must show "such a clear error of
judgment that it shocks the judicial conscience." Id. at 364.
In sentencing Mykal, the judge found aggravating factors three, six, and
nine based on Mykal's fifteen prior arrests between 1998 and 2013, and seven
convictions, five of which were for state indictable offenses, and one of which
was for a federal crime. Mykal had served four prior prison terms. Thus, the
judge imposed the fifty-year term of imprisonment and ordered Mykal to pay
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$24,520 in restitution, recognizing that while he had no current income, the debt
should be repaid if he were ever to "hit the lottery or come into an inheritance."
Mykal's argument that the sentence is excessive because the federal
sentence adequately punished him for the underlying crime lacks merit. Since
he was properly convicted in the two separate courts for two different crimes, it
would not follow that the federal sentence satisfied the penal objectives of our
murder statute. The court's findings on aggravating factors were supported by
the record. The term imposed was within the range. See N.J.S.A. 2C:11-3(b)(5).
We note, however, that the judge separately sentenced Mykal on the
conspiracy count. Since the only goal of the conspiracy was the murder, merger
is appropriate. See State v. Grunow, 102 N.J. 133, 147 (1986); State v.
Hardison, 99 N.J. 379, 386-91 (1985). The same error should be corrected as to
Malik.
Malik also contends that the court erred in requiring him to pay restitution
without conducting a hearing at which his ability to pay could be determined
and without spelling out any rationale for the imposition. Restitution, which the
judge found should be "joint and several" between the two defendants, was to
be paid to the Victim Violent Crimes Compensation Office and not to the
victim's family directly because payments had already been advanced to them.
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Restitution is within the court's discretion and will not be reversed on
appeal unless the reviewing court finds an abuse of discretion. State v. Harris,
70 N.J. 586, 599 (1976); State v. Martinez, 392 N.J. Super. 307, 318-19 (App.
Div. 2007). As the judge acknowledged, neither defendant would have the
ability to pay restitution unless they unexpectedly came into money. Under the
circumstances, given that defendants are serving life sentences, and are
compensating the Board as required by statute, no remand hearing is necessary.
See N.J.S.A. 2C:44-2(b)(2).
Affirmed, except remanded to correct the judgment to reflect that the
conspiracy convictions merge with the substantive crime of murder.
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