STATE OF NEW JERSEY VS. RASHAWN BOND(10-03-0288, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-2317-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHAWN BOND,
Defendant-Appellant.
Argued September 26, 2017 - Decided October 18, 2017
Before Judges Carroll, Leone and Mawla.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 10-03-0288.
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Mr. Kirsch, of counsel and on the brief).
Milton S. Leibowitz, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Thomas K. Isenhour,
Acting Union County Prosecutor, attorney; Mr.
Leibowitz, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
A Union County grand jury returned Indictment No. 10-03-0288,
charging defendant Rashawn Bond and co-defendants Jamel Lewis,
Robert Harris, and Sharif Torres with first-degree kidnapping,
N.J.S.A. 2C:13-1(b) (count one); two counts of first-degree
robbery, N.J.S.A. 2C:15-1(a) (counts two and four); felony murder,
N.J.S.A. 2C:11-3(a)(3) (count three); second-degree possession of
a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five);
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)
(count six); and second-degree aggravated arson, N.J.S.A.
2C:19-1(a) (count seven).
Defendant filed a severance motion seeking to be tried
separately from his co-defendants. The trial court granted the
motion after hearing arguments from counsel and testimony from
defendant, who asserted an affirmative defense of duress.
Following a jury trial, defendant was convicted of first-degree
kidnapping (count one), second-degree robbery (count two),1 felony
murder (count three), and a lesser-included offense of
third-degree receiving stolen property. Defendant was found not
1
The judgment of conviction (JOC) mistakenly indicates that
defendant was convicted of first-degree robbery. However, the
jury did not find defendant used a weapon during the robbery, and
the trial judge properly recognized at sentencing that defendant
was convicted of second-degree robbery. Accordingly, a remand is
necessary for correction of the JOC.
2 A-2317-14T3
guilty on the remaining counts.
At sentencing on November 20, 2014, after merging the
convictions for receiving stolen property and robbery with the
felony murder conviction, the judge sentenced defendant to life
imprisonment, with an eighty-five percent period of parole
ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2, for the felony murder. The judge also imposed a
concurrent thirty-year prison term on the kidnapping conviction,
with an eighty-five percent period of parole ineligibility under
NERA.
On appeal, defendant raises through counsel the following
arguments:
POINT I
THE JURY INSTRUCTION ON DURESS DID NOT
PROPERLY EXPLAIN THE BURDEN OF PROOF, AND THE
INSTRUCTIONS, WHEN VIEWED AS A WHOLE, WERE,
AT BEST, CONTRADICTORY ON THE STATE'S DUTY TO
PROVE THE ABSENCE OF DURESS BEFORE A
CONVICTION COULD BE RETURNED ON ANY COUNT; THE
INSTRUCTION ON EACH INDIVIDUAL COUNT LISTED
ONLY A FINDING OF THE ELEMENTS OF THE CRIME
AT ISSUE, NOT THE ABSENCE OF DURESS, AS A
PREREQUISITE TO A CONVICTION. (Not Raised
Below)
POINT II
THE TRIAL COURT IMPROPERLY REFUSED TO ALLOW
DEFENSE COUNSEL TO REFERENCE PRIOR CONSISTENT
STATEMENTS OF DEFENDANT'S IN ORDER TO REBUT
THE STATE'S REPEATED CHARGE THAT DEFENDANT WAS
FABRICATING HIS TRIAL TESTIMONY.
3 A-2317-14T3
POINT III
THE TRIAL JUDGE IMPROPERLY REFUSED TO SANITIZE
DEFENDANT'S PRIOR CONVICTIONS FOR
WEAPONS-POSSESSION OFFENSES UNDER STATE V.
BRUNSON, THEREBY SUBJECTING HIM TO IMPEACHMENT
REGARDING THOSE OFFENSES WHEN HE TESTIFIED,
WHICH INCLUDED THE PROSECUTOR'S DECISION TO
INFORM THE JURY THAT THE WEAPON IN QUESTION
WAS A GUN.
POINT IV
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
POINT V
THE RECENT PUBLISHED APPELLATE DIVISION
DECISION IN STATE V. VICTOR GONZALEZ MANDATES
REVERSAL OF THE DEFENDANT'S CONVICTIONS FOR
THE SAME REASON AS IN THAT CASE: THE REPEATED
USE OF "AND/OR" LANGUAGE IN THE ACCOMPLICE-
LIABILITY JURY INSTRUCTION COULD HAVE EASILY
LED TO AN IMPROPER VERDICT FROM IMPROPER JURY
DELIBERATION.
In a pro se supplemental brief, defendant raises the following
arguments:
POINT I
PROSECUTORIAL MISCONDUCT
A. Knowing and Intentionally Withholding
Exculpatory Discovery Pursuant to Rule 3:13-3
in violation of Brady.
B. Prosecutor Breached Its Duty to Provide
Discovery Pursuant to Rule 3:13-3(c)(7)
Violation of Discovery Rule 3:13-3(b). (Not
raised below)
4 A-2317-14T3
C. Improperly Vouching for Its Key Witness'
Credibility During Summation. (Not raised
below)
D. The Prosecutor Improperly Attacked the
Defendant's Credibility During Cross-
Examination by Making Generic Accusations that
Defendant Tailored His Trial Testimony After
Being Present in the Courtroom and Hearing
Prior Trial Testimony of State's Ballistics
Expert Witness Michael Sandford In Violation
of State v. Daniels.
E. The Prosecutor Improperly Attacked
Defendant's Credibility During Cross-
Examination by Making Generic Accusations of
Tailoring His Testimony to Pre-Trial
Discovery.
F. Making Improper Suggestions and
Insinuations During Cross-Examination of
Defendant's Key-Witness.
G. Improperly Stated in Summation That All
of Defendant's Girlfriends Testified They Felt
Threatened and Intimidated by the Defendant.
POINT II
THE TRIAL COURT FAILED TO PROVIDE THE JURY
WITH CURATIVE INSTRUCTION PURSUANT TO N.J.R.E.
105 IN VIOLATION OF THE DANIELS RULE. (Not
raised below)
POINT III
CUMULATIVE ERROR DENIED DEFENDANT OF A FAIR
TRIAL. (Not raised below)
For the reasons that follow, we affirm defendant's
conviction. However, we remand for resentencing and correction
of the JOC.
5 A-2317-14T3
I.
A. The State's Case
On October 28, 2008, at 10:57 p.m., Elizabeth police found
the charred, lifeless body of Tanya Worthy in a white 2005 BMW
convertible that was engulfed in flames. Investigation revealed
Worthy died from three gunshot wounds that were inflicted prior
to the fire.
Raheem Jackson testified he was dating Worthy and lived with
her in Green Brook. On October 28, 2008, Worthy left home in the
BMW around 10:00 a.m. She told Jackson she was going to work and
then getting something to eat. Worthy called Jackson around 5:00
p.m. from a restaurant because she was going to bring him home
some food. At approximately 6:15 p.m., after she finished her
meal, Worthy placed a "to-go" order. Cell phone records
established that Worthy left the restaurant and drove to the Newark
home of defendant, who she was also dating. Worthy never returned
to the restaurant to pick up her order.
Cell phone records further revealed that: at approximately
7:30 p.m., Lewis, Harris, Torres, and Titus Lowery2 also arrived
at defendant's house; around 8:00 p.m., Lewis, Lowery, and Worthy
drove toward Green Brook, where Jackson and Worthy lived; after
2
According to the State, "Titus Lowery was an unindicted co-
conspirator who died before trial."
6 A-2317-14T3
defendant borrowed a car from another girlfriend, Jasmine Campbell
Sykes, he drove with Harris and Torres toward Green Brook; and at
approximately 8:40 p.m., Lewis, Lowery, and Worthy arrived at
Worthy and Jackson's home on Thomas Court in Green Brook.
Jackson heard his garage door open and observed Worthy's car
in the driveway. Jackson observed someone get out of the car
wearing a hoodie and a mask. The individual pointed a handgun at
Jackson and told him, "don't move." Jackson could not see the
person's face or tell what type of gun he held. Jackson
immediately closed the garage door and ran inside. Worthy's car
drove away, and Jackson summoned the police.
Cell phone records around that time placed Lewis and Lowery
near a PSE&G electrical transmission tower on Route 22 in Green
Brook, across the highway from Thomas Court. Defendant, Harris,
and Torres were approximately ten minutes from Thomas Court, in
Watchung; and Lewis and Harris were in constant communication with
each other. Lewis and Lowery drove down Route 21 to Routes 1 and
9, toward the New Jersey Turnpike.
At approximately 10:47 p.m. on October 28, 2008, the Elizabeth
police and fire departments were dispatched to Neck Lane in
Elizabeth, where they found Worthy's BMW convertible fully
engulfed in flames. Worthy's body was in the rear passenger seat,
face down, with three gunshot wounds.
7 A-2317-14T3
Mark Chai, a retired former fire investigator and fire
official for the City of Elizabeth, was called as an expert in
arson investigation. He testified he responded to Neck Lane at
approximately 10:58 p.m. on October 28, 2008, and participated in
the processing of the BMW. Chai concluded the fire originated in
the rear passenger seat and "it was set on purpose." The county
medical examiner determined Worthy died from the gunshot wounds,
and her body was burned after her death.
Lieutenant Michael Sandford, supervisor of the Ballistics Lab
of the Union County Police Department, testified as an expert in
ballistics. He explained that two projectiles were recovered from
the autopsy. Both were ".38 caliber class," which meant that
"both were fired from a weapon that had a caliber in the .38
caliber class, which could be anything from a .38 Short through a
9 millimeter Luger, 357 Magnum, .38 Smith & Wesson."
Cell phone records established that, after the fire was set,
Lewis and Lowery drove back to Newark. Shakeerah Scott testified
she had a daughter with Lewis and, on the night of Worthy's death,
Lewis called her for a ride; she picked him up along with two
other individuals in Newark and drove them to get Lewis's car.
Sykes testified that she expected defendant to borrow her car for
a couple of hours, so she began calling him around 11:00 p.m., but
he did not answer. Defendant called her back sometime after
8 A-2317-14T3
midnight from outside her house; he was alone and looked normal.
He handed her a black leather handbag and asked if she wanted it.
After defendant left, Sykes looked through the handbag and found
two business cards. One was Worthy's business card from DeVry
University where she worked.
In early December 2009, Detective Joe Vendas of the Union
County Prosecutor's Office, Homicide Task Force, spoke with Sykes
about Worthy. Vendas asked Sykes about the handbag, which in the
interim she had given to her cousin. Sometime later, defendant
told Sykes "if somebody comes to you, don't say nothing."
Defendant's brother, Terron Billups, testified pursuant to a
plea deal and a cooperation agreement. He stated that just prior
to Worthy's death, Lewis was spending time at defendant's house
"every day" or "every other day or so." He also saw Harris hanging
around defendant's house during that time. Both he and defendant
were "affected very deeply" by the October 2007 murder of their
brother, Abdul Billups.
Sean Williams also testified for the prosecution pursuant to
a plea deal. Williams was an experienced car thief, who testified
that during a birthday party three days before the murder, which
defendant did not attend, Lewis asked him to steal a car for a
"jux" (i.e., a robbery). Lewis was going to rob "one of Shawny's
[i.e., defendant's] bitches" for $200,000 and he needed a fast car
9 A-2317-14T3
for the job. Lewis told Williams that defendant was going to pay
Williams for the car. Lewis did not tell Williams who was going
to be involved in the robbery, or when or where it would take
place. According to Williams, he refused the job because he did
not want to take the risk since he had just been released from
prison and his girlfriend was pregnant.
Williams stated he knew, from growing up in Newark, that the
South Side Cartel was a subset of the Bloods gang and had a
reputation for violence. While he and Lewis were in the Union
County Jail, Lewis and other members of the South Side Cartel
threatened him about his statements and testimony in this case.
On February 8, 2012, he wrote a letter to Vendas, which read:
To Detective Joe Vendas From Sean L. Williams.
I am writing in regards to the recorded
statement I gave to you on December 24th, '09
regarding a Mr. Jamel Lewis and Rashawn Bond.
I'd like to inform you that any statement or
testimony that I gave to the Union County
Prosecutor's Office on December 24th, '09 is
false. Any statement I, Sean Williams, made
that is relative to the murder of Miss Tanya
Worthy against the defendants Jamel Lewis and
Rashawn Bond is false.
Williams claimed he wrote the letter at "a time when I was gettin'
threatened again."
Vendas testified he was present at defendant's house on
January 16, 2009, when defendant was arrested on federal drug
charges. While there, he seized defendant's cell phone, which was
10 A-2317-14T3
in plain view. That day, defendant received a phone call from
Torres's phone, although Vendas did not know what the call was
about.
Vendas interviewed defendant that same day. Defendant denied
any involvement in the murder of Worthy, and initially denied
knowing her. The interview was recorded and played for the jury.
Vendas admitted the State had no evidence that defendant was
in Worthy's BMW or at her home the evening she was murdered. While
there was evidence that defendant picked up Sykes's car in Hillside
at approximately 8:30 p.m. that evening, Vendas admitted it would
have been very difficult, if not impossible, to drive from her
house in Hillside to Green Brook in approximately twenty minutes.
He acknowledged that although Williams testified he had been
recruited by Lewis to steal a car for the robbery, the car that
was recovered from Hansbury and Elizabeth Avenues in Newark on the
night of the murder, which defendant had allegedly driven and
abandoned, was stolen "well before" Lewis spoke with Williams.
Also, although Sykes testified she picked up defendant and only
one other person, Vendas conceded that the cell phone records
demonstrated that both Harris and Torres were with defendant at
the time.
Vendas's handwritten notes of his "pre-interview" with
Williams, dated December 17, 2009, were produced to the defense
11 A-2317-14T3
during the trial. Vendas testified he forgot he took those notes.
He wrote down that Williams told him that "Broke," meaning Lewis,
was associated with the 793 Bloods gang, which had an affiliation
with the South Side Cartel. Williams also told him Lewis carried
a .357 revolver, which was consistent with the caliber of bullets
that killed Worthy; that "Broke and Dubird did Hinnant," i.e.,
that Lewis and Billups killed Jermaine Hinnant; and that somebody
named "Farad" killed defendant's brother Abdul Billups.
B. Defendant's Case
Defendant testified at trial. He did not dispute much of the
State's case; rather, he claimed he acted under duress.
According to defendant, his brother Abdul had been a member
of the South Side Cartel, a gang with a reputation for violence
and killing people "they think are snitches or cooperating against
them[.]" Lewis was defendant's cousin and belonged to the 793
gang, which was affiliated with the South Side Cartel. Abdul was
murdered in October 2007. About two weeks later, Lewis told
defendant "don't be mad at me, but your brother had to go, we
couldn't take no chances of taking us all down." Lewis also said
he murdered defendant's friend of thirty years, Jermaine Hinnant,
in February 2007, because Hinnant gave a statement to police about
Lewis.
Defendant did not associate with Lewis prior to Abdul's death,
12 A-2317-14T3
but afterwards Lewis frequently came to his house. Defendant did
not want Lewis around, but was scared to tell him to leave.
In September 2008, Lewis suggested they rob Worthy and her
drug-dealer boyfriend, Jackson, who Lewis suspected kept a large
amount of cash in his home. Defendant did not want to get involved,
but he did not refuse because "[t]hat's like committing suicide,
man. You know, you just don't tell a person like that."
Defendant pretended to call Worthy three or four times so
Lewis would leave him alone. However, Lewis persisted, and on
October 19 or 20, 2008, Lewis forced defendant to call Worthy from
his phone, "[b]ecause he thought I was bullshitting." Lewis pulled
out a .357 handgun, put it on his lap, and said "man, don't be
stupid like your brother, . . . don't make me kill you, call her."
Defendant called Worthy from Lewis's phone because "I was afraid
of him."
Lewis repeatedly told defendant they were not going to hurt
Worthy. Lewis's plan was to have Worthy come to defendant's house,
pretend he was robbing defendant, take Worthy to Green Brook, and
have defendant follow in a stolen car. He told defendant that his
friends Lowery, Harris, and Torres were also going be involved.
Lowery, Harris, and Torres called themselves "B-Block," and all
had reputations for violence.
Defendant testified he "just went along with it" because
13 A-2317-14T3
Lewis threatened to kill him if he did not participate. Also,
Lewis never asked him to pay Williams for a stolen car. Defendant
explained that Lewis was a car thief himself, and would not need
Williams to steal a car for them.
On October 27, 2008, defendant called Worthy several times
from Lewis's phone to see if she would come to his house, but she
was not available that day. At Lewis's request, defendant picked
up Lowery, Torres, and Harris in Philadelphia and drove back to
Newark.
The next day, Worthy began calling Lewis's phone, since
defendant had called her from that phone and told her it was his
new phone number. Lewis did not answer the calls and told Lowery
to have defendant call Worthy using Lowery's phone so Lowery could
monitor the conversation. Defendant called Worthy, and she agreed
to come to his home.
At approximately 5:00 p.m., Lewis went to defendant's house
and picked up Harris and Torres, but left Lowery to ensure
defendant did not contact Worthy, who arrived there around 6:45
p.m. At approximately 7:15 p.m., defendant and Worthy went outside
to Worthy's car. Lewis, Lowery, Harris, and Torres "came out from
the garage with two weapons" and forced them back into the house.
Harris and Torres took defendant into another room and pretended
to rob him. Lewis and Lowery initially took Worthy into
14 A-2317-14T3
defendant's bedroom, and shortly thereafter they left the house
with Worthy and drove off in her car toward Green Brook.
Defendant went into his bedroom, where he picked up Worthy's
"pocketbook and stuff." Defendant, Torres, and Harris then drove
"the stolen car" to Hansbury and Elizabeth Avenues in Newark,
where defendant left the car and called Sykes to pick them up.
After dropping Sykes off at her house and giving her Worthy's
pocketbook, defendant intentionally drove the opposite direction
on Route 22 because he did not want to participate in the robbery.
Meanwhile, Lewis kept calling Harris from Green Brook to find out
where they were. Harris had one of Worthy's cell phones, which
he discarded while they drove on Route 78.
Shortly after 8:49 p.m., Lewis called Harris and said, "fuck
it, it's over with, everythin' over with, fuck it." Defendant
turned the car around and headed back toward Newark to meet Lewis.
When they met on Route 78, Lewis was driving Worthy's car, and he
instructed defendant to follow him. Lewis then stopped at a gas
station and purchased a five-gallon can of gasoline. Defendant
was able to see Lowery in the car but could not see Worthy.
Lewis drove to an area near the Budweiser brewery, where he
set Worthy's car on fire. Lewis and Lowery then got into Sykes's
car. While defendant was driving, Lewis put a .357 handgun to the
back of his head and said, "I should blow your fucking head off,
15 A-2317-14T3
where the fucking car at, where the stolen car, where the car at,
you fucked up everything, why the fuck you ain't follow me out
here." Defendant stated he felt nervous and scared.
Defendant drove back to Newark to retrieve the stolen car,
which was not there because the police had already picked it up.
Lewis became angry and yelled at defendant that he should have
killed him. Lewis also stated, "I did all this shit for nothin',
I had to kill some fucking body for nothin', I didn't get nothin'
out of it." It was at this point that defendant realized Lewis
had killed Worthy. Harris and Torres stayed at defendant's home
that evening, and the next day defendant drove them back to
Philadelphia.
Defendant did not report Lewis to the police for the murder
of Worthy because he feared recrimination from Lewis and the South
Side Cartel. He admitted he lied to Vendas during his January 16,
2009 interview for the same reason.
Newark Police Officer Derrick Clemons testified he responded
to Hansbury Avenue on a report of a stolen car shortly after 11:00
p.m. on October 28, 2008. He observed the front windshield was
cracked and there was some ignition and steering column damage,
"which is pretty common with a vehicle being stolen," and the keys
were in the ignition. The vehicle was stolen in New York City
sometime between September 30, 2008, and October 2, 2008, and the
16 A-2317-14T3
theft was reported on October 3, 2008.
II.
We first address defendant's arguments, raised for the first
time on appeal, that the jury instructions on duress and accomplice
liability were improper. We begin by noting that when a defendant
fails to object to a jury charge at trial, we review for plain
error, and "disregard any alleged error 'unless it is of such a
nature as to have been clearly capable of producing an unjust
result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting
R. 2:10-2). Plain error, in the context of a jury charge, is
"[l]egal 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. Camacho, 218 N.J. 533, 554 (2014)
(alteration in original) (quoting State v. Adams, 194 N.J. 186,
207 (2008)).
Of course, in reviewing any claim of error relating to a jury
charge, "[t]he charge must be read as a whole in determining
whether there was any error[,]" State v. Torres, 183 N.J. 554, 564
(2005), and the effect of any error must be considered "in light
'of the overall strength of the State's case.'" State v. Walker,
203 N.J. 73, 90 (quoting State v. Chapland, 187 N.J. 275, 289
17 A-2317-14T3
(2006)). However, a defendant's attorney's failure to object to
jury instructions not only "gives rise to a presumption that he
did not view [the charge] as prejudicial to his client's case[,]"
State v. McGraw, 129 N.J. 68, 80 (1992), but is also "considered
a waiver to object to the instruction on appeal." State v.
Maloney, 216 N.J. 91, 104 (2013).
A.
In Point I of his counselled brief, defendant contends the
court committed plain error in its jury instruction on duress. He
argues that the court's failures to "properly explain the burden
of proof with respect to duress, and to properly integrate the
concept of duress into the individual instructions on each of the
crimes charged, both individually and collectively denied [him]
the thorough and complete jury instructions, and jury
deliberations, to which he was entitled."
N.J.S.A. 2C:2-9, "Duress," provides in relevant part:
(a). . . . it is an affirmative defense that
the actor engaged in the conduct charged to
constitute an offense because he was coerced
to do so by the use of, or a threat to use,
unlawful force against his person or the
person of another, which a person of
reasonable firmness in his situation would
have been unable to resist.
Although a defendant initially must produce some evidence tending
to establish the affirmative defense of duress, the State must
18 A-2317-14T3
disprove the defense beyond a reasonable doubt. State v. B.H.,
183 N.J. 171, 187-88 (2005); State v. Romano, 355 N.J. Super. 21,
35-36 (App. Div. 2002).
The trial judge charged the jury on the affirmative defense
of duress in accordance with Model Jury Charge (Criminal), "Duress
(N.J.S.A. 2C:2-9)" (May 5, 1982). In relevant part, the charge
provided:
Now, in defense of the charge of robbery and
kidnapping of Tanya Worthy and/or the robbery
of Raheem Jackson and/or the arson of Tanya
Worthy's vehicle and/or the weapons counts,
the defendant contends that he is not guilty
because at the time of the offense, he acted
under duress. In other words, he was coerced
to commit the offense due to the use of, or a
threat to use, unlawful force against him or
another person.
. . . .
Before conduct, which would otherwise be
criminal, can be excused on the ground that
such conduct was a direct result of force or
threats of force upon the defendant or
another, the evidence must indicate that the
following conditions existed at the time:
(1) That there was use of, or threatened use
of, unlawful force against the person of the
defendant or another; and
(2) That the force, or threatened force,
would be of such a type that a person of
reasonable firmness in a similar situation
would have been unable to resist.
. . . .
19 A-2317-14T3
The State has the burden to prove beyond a
reasonable doubt each element of those
offenses, robbery and kidnapping, and all the
elements of every charge in the indictment.
If you find that the defendant acted under
duress in the commission of either the robbery
charges or the kidnapping charges, then in
that event, he may not be found guilty of
felony murder.
The State also has the burden to disprove
beyond a reasonable doubt the defense of
duress. If you find that the State has proven
beyond a reasonable doubt each element of the
offenses charged and that the State has
disproved beyond a reasonable doubt the
defense of duress, you must find the defendant
guilty. If, however, you determine that the
State has failed to prove beyond a reasonable
doubt one or more elements of the charges of
robbery, kidnapping, arson or the weapons
counts, or has failed to disprove the defense
of duress, you must find him not guilty.
Defendant now contends the model charge includes the
preliminary legal decision reserved for the judge as to whether
there is sufficient evidence to support the defense at all. He
argues that, as a result, the model charge "badly commingles the
judge's job of determining the sufficiency of [] defendant's proofs
of duress – i.e., whether there is merely evidence sufficient to
instruct the jury on the defense – with the jury's job of
determining whether the State has disproved the defense beyond a
reasonable doubt." Defendant contends the duress charge should
mirror Model Jury Charge (Criminal), "Murder, Passion/Provocation
and Aggravated/Reckless Manslaughter" (Revised June 8, 2015),
20 A-2317-14T3
which defines the elements of the defense in conjunction with the
State's obligation to disprove at least one of them beyond a
reasonable doubt. Defendant also argues the judge did not make
clear that the defense applied to all counts of the indictment.
We find these arguments unpersuasive.
The model charge on duress informs the jury of those factors
that make the defense available in the first instance, as well as
those factors that make the defense unavailable. The charge does
not imply that a defendant has any burden of proof and clearly
tells the jury that the State bears the burden of disproving the
elements of the defense beyond a reasonable doubt. We see no
reason to adapt the model charge on duress to the format used in
the model charge on passion/provocation manslaughter, which
ultimately asks the jury to consider the factual underpinnings of
that defense, albeit later in the charge. As the Court has said,
insofar as consistent with and modified to
meet the facts adduced at trial, model jury
charges should be followed and read in their
entirety to the jury. The process by which
model jury charges are adopted in this State
is comprehensive and thorough; our model jury
charges are reviewed and refined by
experienced jurists and lawyers.
[State v. R.B., 183 N.J. 308, 325 (2005).]
Defendant's other claim, that the charge did not make clear
to the jurors they were to consider duress as to all counts of the
21 A-2317-14T3
indictment, lacks sufficient merit to warrant extensive
discussion. R. 2:11-3(e)(2). The judge listed all the charges
against defendant to which duress could provide a defense, and
clearly told the jury that, in addition to the burden to prove
beyond a reasonable doubt each element of each substantive offense,
the State also bore "the burden to disprove beyond a reasonable
doubt the defense of duress."
B.
Relying on State v. Gonzalez, 444 N.J. Super. 62 (App. Div.),
certif. denied, 226 N.J. 209 (2016), defendant contends for the
first time on appeal in Point V of his counselled brief that the
accomplice liability charge was plainly erroneous because the
court's repeated use of the phrase "and/or" could have confused
the jury and led to an improper verdict. He argues that, as in
Gonzalez, the instruction "improperly allows the jury to conclude
that [he] is liable for crimes committed by the principal as long
as he aided or abetted one of those crimes." Alternatively,
"different jurors could conclude that defendant aided or abetted
different crimes and find accomplice liability for all of those
crimes, or all of the crimes committed by the principal." In the
context of the present case, we disagree.
In Gonzalez, the defendant was charged as a co-conspirator
and accomplice with robbery and three counts of aggravated assault.
22 A-2317-14T3
Id. at 73. He testified that he was at the scene of the fatal
shooting with two co-defendants, but that his participation was
the product of duress. Ibid. The panel criticized the use of the
imprecise "phrase 'and/or[.]'" Id. at 71. It found error in the
jury charge on conspiracy and accomplice liability because the
charge referred to "robbery and/or aggravated assault" when
referring to the substantive crimes the co-defendants were alleged
to have committed for which the defendant was to be considered
accountable. Id. at 73-75. The panel explained the critical flaw
in the charge as follows:
[T]he nature of the indictment required that
the jury decide whether defendant conspired
in or was an accomplice in the commission of
a robbery, or an aggravated assault, or both.
By joining (or disjoining) those
considerations with "and/or" the judge
conveyed to the jury that it could find
defendant guilty of either substantive offense
— which is accurate — but left open the
possibility that some jurors could have found
defendant conspired in or was an accomplice
in the robbery but not the assault, while
other jurors could have found he conspired in
or was an accomplice in the assault but not
the robbery. In short, these instructions did
not necessarily require that the jury
unanimously conclude that defendant conspired
to commit or was an accomplice in the same
crime. Such a verdict cannot stand.
The jury was also told that "to find the
defendant guilty of committing the crimes of
robbery and/or aggravated assault charges, the
State must prove [among other things] that
[the co-defendant] committed the crimes of
23 A-2317-14T3
robbery and/or aggravated assault." Assuming
the "and/or" in this instruction was
interpreted as being a disjunctive, it is
entirely possible the jury could have
convicted defendant of both robbery and
aggravated assault even if it found [the co-
defendant] committed only one of those
offenses, i.e., the jury was authorized, if
it interpreted "and/or" in this instance as
"or," to find defendant guilty of robbery
because it was satisfied the State proved that
[the co-defendant] committed an aggravated
assault.
[Id. at 75-77 (citations omitted).]
In denying certification, the Supreme Court expressly limited the
panel's holding "to the circumstances in which it was used in
th[at] case." Gonzalez, supra, 226 N.J. at 209.
In the present case, the judge charged the jury on accomplice
liability in accordance with Model Jury Charge (Criminal),
"Liability for Another's Conduct (N.J.S.A. 2C:2-6) Accomplice"
(Revised 5/22/95):3
In the alternative, the State alleges that the
defendant is legally responsible for the
criminal conduct of Jamel Lewis, Robert Harris
and Sharif Torres in violation of the law,
which reads in pertinent part as follows:
A person is guilty of an offense if it is
committed by his own conduct or the conduct
of another person for which he is legally
accountable or both. A person is legally
accountable for the conduct of another when
3
This model jury charge, prior to the judge tailoring the charge
to the specific facts of the case, uses the phrase "and/or" five
times.
24 A-2317-14T3
he is an accomplice of such other person in
the commission of an offense. A person is an
accomplice of another in the commission of an
offense if, with the purpose of promoting or
facilitating the commission of the offense,
he (a) solicits such other person to commit
it, and/or (b) aids or agrees or attempts to
aid such other person in planning or
committing it.
This provision of the law means that not only
is the person who actually commits the
criminal act responsible for it, but one who
is legally accountable as an accomplice is
also responsible as if he committed the crime
himself.
In this case, the State alleges that the
defendant is guilty of the crimes committed
by Jamel Lewis, Robert Harris and Sharif
Torres because he acted as his or their
accomplice. In order to find the defendant
guilty as an accomplice, the State must prove
beyond a reasonable doubt each of the
following elements: (1) That Jamel Lewis,
Robert Harris, and/or Sharif Torres committed
the crimes of robbery and kidnapping of Tanya
Worthy and/or robbery of Raheem Jackson,
and/or the arson of Ms. Worthy's vehicle;
. . . . (2) That this defendant solicited
them or one of them to commit them, and/or did
aid or agree or attempt to aid him or them in
planning or committing the offenses; (3) That
this defendant's purpose was to promote or
facilitate the commission of the offenses; (4)
That this defendant possessed the criminal
state of mind that is required to be proved
against the person who actually committed the
act.
. . . .
If you find that the defendant, with the
purpose of promoting or facilitating the
commission of the offenses of robbery and/or
25 A-2317-14T3
kidnapping, and/or arson, solicited Jamel
Lewis, Robert Harris, and/or Sharif Torres to
commit it or them, and/or aided or agreed or
attempted to aid him or them in planning or
committing them, then you should consider him
as if he committed the crimes himself. The
defendant's status as an accomplice must be
considered separately as to each charge.
. . . .
In order to convict the defendant as an
accomplice to the crimes charged, you must
find that the defendant had the purpose to
participate in those particular crimes. He
must act with the purpose of promoting or
facilitating the commission of the substantive
crimes with which he is charged.
It is not sufficient to prove only that the
defendant had knowledge that another person
was going to commit the crimes charged. The
State must prove that it was the defendant's
conscious object that the specific conduct
charged be committed. In sum, in order to
find the defendant guilty as an accomplice of
committing the crimes of robbery and
kidnapping of Tanya Worthy and/or the robbery
of Raheem Jackson, and/or the arson of Tanya
Worthy's vehicle, the State must prove each
of the following elements beyond a reasonable
doubt: (1) That Jamel Lewis and/or Robert
Harris and/or Sharif Torres committed the
crimes of robbery and/or kidnapping of Tanya
Worthy and/or the robbery of Raheem Jackson
and/or the arson of Tanya Worthy's vehicle;
(2) That this defendant's purpose was to
promote or facilitate the commission of those
offenses; (3) That this defendant solicited
him or any one of them to commit them and/or
did aid or agree or attempt to aid them or any
one of them in planning or committing them;
(4) That this defendant possessed the criminal
state of mind that is required to be proved
26 A-2317-14T3
against the person who actually committed the
criminal act.
Again, you are reminded that you must consider
the defendant's accomplice status separately
as to each charge. So, you first have to go
through the facts as you find them on the
charge of Count One of the indictment, which
is the kidnapping charge. Was the kidnapping
charge committed by any one of them in the
indictment. First you're going to look at him
as a principal, whether he was involved as a
principal, and then you'll look at his
accomplice status. Was the crime committed.
Did he participate in that. Did he agree, was
that his purpose to have it done with any one
of the people [] you find committed those
offenses. And you have to do that with respect
to each charge in the indictment[.]
Now, if you find that the State has proved
each and every one of the elements that I have
explained to you beyond a reasonable doubt,
then you must find the defendant guilty. If,
on the other hand, you find that the State has
failed to prove one or more of these elements
beyond a reasonable doubt, then you must find
the defendant not guilty.
[(Emphasis added).]
The court next reiterated the State's burden of proof and the
requirement that the jury's verdict must be unanimous. It then
provided the duress charge and defined the elements of each offense
charged.
We acknowledge that the court's accomplice liability charge
is markedly similar to that which the panel found unduly ambiguous
and hence defective in Gonzalez. Nonetheless, under the facts
27 A-2317-14T3
presented, we conclude defendant has not carried his burden to
show that usage of the phrase "and/or" was "clearly capable of
producing an unjust result." R. 2:10-2.
Here, in its accomplice liability instruction, the court used
"and/or" three ways. First, the court instructed that the jury
must find that "defendant solicited [another defendant] to commit
[the crime] and/or did aid or agreed or attempted to aid [the
other defendant] in planning or committing [the crime.]" This
comports with the model charge, and is a correct recitation of the
law because either solicitation or aiding or both is sufficient
to establish accomplice liability.
Second, the instruction referenced the other defendants
committing "the crimes of robbery and kidnapping of Tanya Worthy
and/or the robbery of Raheem Jackson, and/or the arson of Tanya
Worthy's vehicle[.]" The use of "and/or" regarding multiple crimes
similarly occurred in Gonzalez, where the defendant was convicted
on all counts. Gonzalez, supra, 444 N.J. Super. at 68. Here,
however, defendant was acquitted of robbing Jackson, the arson of
Worthy's car, and the weapons offenses. Hence, there is no reason
to believe the jury convicted defendant of the kidnapping and
robbery of Worthy based on any of those other crimes. Regarding
the court's instruction to consider whether defendant was an
accomplice in the "robbery and/or kidnapping of Tanya Worthy," we
28 A-2317-14T3
expect that the jury followed the court's repeated instructions
that "[t]he defendant's status as an accomplice must be considered
separately as to each charge." See State v. Miller, 205 N.J. 109,
126 (2011). Further, the court went on to illustrate that
admonition by explaining how the jury could convict defendant of
kidnapping as an accomplice only if one of the other defendants
committed "the kidnapping charge" and if defendant participated
in or agreed to the kidnapping, adding, "[a]nd you have to do that
with respect to each charge in the indictment."
Third, the court told the jury it had to find that "Jamel
Lewis, Robert Harris, and/or Sharif Torres" committed a crime, and
that defendant solicited "them or one of them" or aided "him or
them." It is implausible the jury would convict defendant as an
accomplice if, e.g., Lewis and Harris committed the crime but
defendant aided Torres who did nothing. Moreover, according to
defendant, Lewis, Harris, and Torres together carried out the
kidnapping and robbery of Worthy. Thus, given the facts of this
case and the testimony at trial, defendant has not shown that the
judge's use of "and/or" in the context of the entire charge led
to an "ultimate determination of guilt or innocence . . . based
on speculation, misunderstanding, or confusion." State v. Olivio,
123 N.J. 550, 568 (1991). Accordingly, we find no plain error in
the jury instruction.
29 A-2317-14T3
III.
In Point II of his counselled brief, defendant contends the
court erred by refusing to admit his prior consistent statements
to rebut the State's argument that he fabricated his duress
defense. We disagree.
On January 16, 2009, defendant gave a recorded statement to
Vendas in which he denied any involvement in the kidnapping,
robbery, and murder of Worthy. On November 15, 2012, defendant
testified at the hearing on the severance motion that he was
involved in those crimes; however, he acted under duress, as he
was afraid that Lewis or other members of the South Side Cartel
would kill him if he did not participate.
At trial, defense counsel sought to cross-examine Vendas
about unrecorded statements defendant made to federal authorities
in May and June, 2009, which were allegedly consistent with his
duress defense. Vendas was present when defendant made those
statements. The trial judge conducted a N.J.R.E. 104 hearing
outside the presence of the jury, and concluded that the proposed
cross-examination was improper because the State had not yet made
a claim of "recent fabrication," and because there was some
confusion as to what was said by defendant, since there were no
recordings.
30 A-2317-14T3
Defense counsel attempted to question defendant about his
alleged statements to federal authorities on his direct
examination. The judge sustained the State's objection, again
finding the questioning premature. During cross-examination, the
State highlighted the discrepancies between defendant's trial
testimony, his 2009 recorded statement, and his testimony at the
hearing on the 2012 severance motion. On redirect, defense counsel
once more sought to elicit testimony about defendant's alleged
prior consistent statements to federal authorities. The judge
sustained the State's objection, finding the State had not alleged
recent fabrication or improper influence on the issue of duress.
Defendant challenges these evidentiary rulings on appeal.
"The general rule as to the admission or exclusion of evidence
is that '[c]onsiderable latitude is afforded a trial court in
determining whether to admit evidence, and that determination will
be reversed only if it constitutes an abuse of discretion.'" State
v. Kuropchak, 221 N.J. 368, 385 (2015) (quoting State v. Feaster,
156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S. Ct.
1380, 149 L. Ed. 2d 306 (2001)). "Under that standard, an
appellate court should not substitute its own judgment for that
of the trial court, unless 'the trial court's ruling "was so wide
of the mark that a manifest denial of justice resulted."'" Ibid.
(quoting State v. Marerro, 148 N.J. 469, 484 (1997)).
31 A-2317-14T3
Generally, "[a] prior consistent statement offered to bolster
a witness' testimony is inadmissible." Palmisano v. Pear, 306
N.J. Super. 395, 402 (App. Div. 1997); see also State v. Gomez,
246 N.J. Super. 209, 223 (App. Div. 1991). "However, a prior
statement may be admitted in evidence to support the credibility
of a witness for the purpose of rebutting an expressed or implied
charge of recent fabrication." Palmisano, supra, 306 N.J. Super.
at 402.
N.J.R.E. 607 provides, in relevant part: "A prior consistent
statement shall not be admitted to support the credibility of a
witness except to rebut an express or implied charge against the
witness of recent fabrication or of improper influence or motive
and except as otherwise provided by the law of evidence."
Additionally, N.J.R.E. 803(a)(2) excludes from hearsay the prior
statement of a witness that "is consistent with the witness'
testimony and is offered to rebut an express or implied charge
against the witness of recent fabrication or improper influence
or motive[.]"
Here, while it is certainly true that the State used
defendant's January 2009 statement and 2012 testimony to impeach
his credibility, it did not allege that his claim of duress was a
recent fabrication. On cross-examination, the prosecutor did not
adduce any evidence, express or implied, of a recent falsehood or
32 A-2317-14T3
change in defendant's testimony about his duress defense. Rather,
the prosecutor highlighted defendant's admitted lies (that he did
not have a relationship with Worthy and was not involved in her
kidnapping, robbery, and murder), and other inconsistencies, to
demonstrate his testimony was not credible. Since there was no
claim of recent fabrication, the trial court properly barred the
use of defendant's alleged prior consistent statements.
Additionally, defendant cannot show prejudice. Prior
consistent statements are most probative if they predate the motive
to fabricate. State v. Moorer, 448 N.J. Super. 94, 110-11 (App.
Div. 2017). The State did not allege and defendant has not shown
that his alleged statements to federal authorities in May and June
2009 predated defendant having a motive to fabricate concerning
the crimes; indeed, defendant was admittedly fabricating to avoid
liability for the crimes as early as January 2009. Moreover,
defendant was able to use his 2012 testimony to show that he had
testified similarly then and in his trial testimony. Defendant
has not identified any alleged statements to federal authorities
in 2009 that were consistent with his trial testimony but
unmentioned in his 2012 testimony.4
4
For example, defendant does not allege his 2009 statements to
federal authorities mentioned Lewis's alleged possession of a .357
caliber gun, the tattoo, or the nicknames which we discuss in
Section IV.
33 A-2317-14T3
IV.
In a somewhat similar vein, defendant in his pro se
supplemental brief contends the State improperly attacked his
credibility by accusing him of tailoring his testimony, in
violation of State v. Daniels, 182 N.J. 80 (2004). He further
contends the trial court compounded this error by failing to
provide the jury with an appropriate curative instruction.
"[A] criminal defendant has the right to be present at trial,"
"to be confronted with the witnesses against him and to hear the
State's evidence," "to present witnesses and evidence in his
defense," and "to testify on his own behalf[.]" Id. at 97
(citations omitted). "Prosecutorial comment suggesting that a
defendant tailored his testimony inverts those rights, permitting
the prosecutor to punish the defendant for exercising that which
the Constitution guarantees." Id. at 98. Such comments "undermine
the core principle of our criminal justice system--that a defendant
is entitled to a fair trial." Ibid.
"Allegations of tailoring are specific when there is evidence
in the record, which the prosecutor can identify, that supports
an inference of tailoring." Ibid. While generic accusations of
tailoring are prohibited, specific accusations are permitted in a
limited fashion. Id. at 98-99. In order to comment on, or cross-
examine a defendant about, specific accusations of tailoring,
34 A-2317-14T3
there must be "evidence of tailoring, beyond the fact that the
defendant was simply present at the trial and heard the testimony
of other witnesses[.]" Ibid. The comments or questions "must be
based on the evidence in the record and the reasonable inferences
drawn therefrom." Id. at 99. "Moreover, the prosecutor may not
refer explicitly to the fact that the defendant was in the
courtroom or that he heard the testimony of other witnesses, and
was thus able to tailor his testimony." Ibid.
A curative instruction must be immediate and specific in
order to alleviate potential prejudice from inadmissible evidence
and its substance must be adequate. State v. Vallejo, 198 N.J.
122, 134-35 (2009). If a party fails to request such an
instruction, the decision is reviewed under the plain error
standard as to whether it was "clearly capable of producing an
unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337
(1971). "If the defendant does not object to [a] [curative
instruction] at the time it is given, there is a presumption that
the [curative instruction] was not error and was unlikely to
prejudice the defendant's case." State v. Singleton, 211 N.J.
157, 182 (2012). It is with these principles in mind that we
examine defendant's claims of error.
A.
In Point I(D) of his pro se supplemental brief, defendant
35 A-2317-14T3
argues that the prosecutor committed misconduct by accusing him
of tailoring his testimony and thereby violated Daniels.
Specifically, he contends the prosecutor improperly attacked his
credibility by making "generic" accusations of tailoring his
testimony after hearing the testimony of the State's ballistics
expert, Lt. Sandford. In Point II of his pro se brief, defendant
contends for the first time that the trial court erred in failing
to provide the jury with an appropriate curative instruction.
In reviewing alleged acts of prosecutorial misconduct, we
inquire whether the conduct "was so egregious that it deprived the
defendant of a fair trial." State v. Frost, 158 N.J. 76, 83
(1999); State v. Loftin, 146 N.J. 295, 386 (1996). In determining
whether a defendant's right to a fair trial has been denied, we
consider several factors, such as whether the defense counsel made
a timely objection, whether the prosecution promptly withdrew the
improper remark, whether the trial judge ordered that the improper
remark be stricken, and whether the trial judge instructed the
jury to disregard the improper remark. Ibid. "To justify
reversal, the prosecutor's conduct must have been 'clearly and
unmistakably improper,' and must have substantially prejudiced the
defendant's fundamental right to have a jury fairly evaluate the
merits of his defense." State v. Timmendequas, 161 N.J. 515, 575
(1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d
36 A-2317-14T3
89 (2001).
At trial, defendant testified he "read through all the
discovery," but denied looking at the ballistics report.
Subsequently, the following colloquy between the prosecutor and
defendant occurred:
Q. Nowhere in [the transcript of the pre-
trial severance hearing] do you say anything
about Jamel Lewis having a .357 gun in his
lap; is that right?
A. No, it's nowhere in there.
Q. So, at no time in November of 2012, when
you gave previous testimony, did you say
anything about that; is that right?
A. No.
Q. That was new for this trial; is that
right?
A. Yes, but it happened.
Q. Okay. And that's after you've had the
opportunity to look at everything; correct?
A. No.
Q. And you've heard testimony about the
ballistics report; right?
A. Yes.
Q. You heard Lieutenant Sandford come in and
testify about the ballistics report in this
case?
A. Yes.
37 A-2317-14T3
Q. And you testified that the bullets that
were found in Ms. Worthy were consistent with
a .357; is that right?
A. Yes.
Q. And you heard about that, and you heard
your lawyer asking questions about a .357;
correct?
A. I heard that, yes.
Q. So, for the first time last week and
today, you come up with two instances . . .
where you say that Jamel Lewis threatened you
with a .357; correct?
. . . .
Q. And you talk about a []9 millimeter and
a .45; correct?
A. Yes.
Q. So, you did talk about guns with Jamel
Lewis when you testified back in 2012?
A. Yes.
Q. But never about a .357; is that right?
A. Yes.
Q. And you never said anything in 2012 about
Jamel Lewis pointing a gun at your head and
saying he should kill you; did you?
A. No, I didn't. Yes, I did, in, um -- right
after the murder, I said that. He put --
Q. That he pointed a gun at your head in the
car, after you got into the car?
A. Yes, I believe so, in the statement.
38 A-2317-14T3
[(Emphasis added).]
Defendant did not object to this questioning or request a
curative instruction. Nor did the court sua sponte provide a
specific curative instruction. Rather, it provided essentially
the same "generic jury instruction" that the Court in Daniels,
supra, 182 N.J. at 101-02, determined was insufficient to cure the
prosecutor's impropriety.
The prosecutor's allegations of tailoring here were specific,
not generic. The prosecutor specifically pointed out the
differences between defendant's trial testimony and his prior
testimony, which supported an inference of tailoring. See id. at
98. Thus, the cross-examination was based on the evidence in the
record and the reasonable inferences drawn therefrom. Id. at 99;
State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif.
denied, 165 N.J. 492 (2000).
However, while the prosecutor had "reasonable grounds" for
posing questions during cross-examination that impugned
defendant's credibility, she improperly referenced his attendance
at trial and his ability to hear Sandford's testimony. That
portion of the cross-examination was in direct violation of
Daniels. Id. at 99-101 ("[A]t no time during cross-examination
may the prosecutor reference the defendant's attendance at trial
or his ability to hear the testimony of preceding witnesses.");
39 A-2317-14T3
State v. Feal, 194 N.J. 293, 308 (2008) (noting Daniels established
a bright-line rule). Such comments and questions "are precisely
the type that a prosecutor is prohibited from making, even when
the record indicates that defendant tailored his testimony."
Daniels, supra, 182 N.J. at 101.
Nonetheless, in the context of this case, defendant has not
shown the prosecutor's brief reference to defendant having heard
Sandford's ballistics testimony was plain error, nor was the
court's failure to provide the jury with a more specific curative
instruction. The prosecutor's improper reference did not cause
the jury to believe that defendant rather than Lewis possessed the
handgun. Rather, the jury acquitted defendant of the weapons
offenses, and found the State failed to prove he was armed with a
deadly weapon during the robbery of Worthy. See Feal, supra, 194
N.J. at 313 (finding no plain error from "the prosecutor's fleeting
references" in closing that the defendant changed his story "after
hearing all the witnesses testify"). Defendant has thus failed
to establish that the prosecutor's remark "substantially
prejudiced [his] fundamental right to have a jury fairly evaluate
the merits of his defense." Timmendequas, supra, 161 N.J. at 575.
B.
In Point I(E) of his pro se supplemental brief, defendant
advances the additional claim that, on cross-examination, the
40 A-2317-14T3
prosecutor committed misconduct by making "generic" accusations
that he tailored his testimony to the pre-trial discovery. Again,
we are not persuaded.
Defendant cites three accusations of tailoring he asserts
were "generic" and therefore improper. The first relates to
questions posed by the prosecutor about his brother, Abdul, having
a South Side Cartel tattoo:
Q. Now, in 2012, you also gave testimony
about the South Side Cartel; correct?
A. Yes, ma'am.
Q. And you gave testimony about Amin Roland;
is that right?
A. Yes.
Q. And then [defense counsel], while you
were in court this time, asked you some more
questions about the South Side Cartel; isn't
that true?
A. Yes, ma'am.
Q. When you testified in 2012, you said not
a word about tattoos; correct?
A. Uh --
Q. You didn't say anything about your
brother having a South Side Cartel tattoo;
right?
A. That question wasn't asked. That
question wasn't asked.
Q. But after you got the packet in discovery
with the South Side Cartel tattoo, then you
41 A-2317-14T3
testified in court here today -- or last week
about the South Side Cartel tattoo; correct?
A. Excuse me. I can't answer that question
with a yes or no.
Q. Okay, that's fine. Then you can't answer
my questions.
The second instance relates to questions about gang member
Lawrence "Larry" Parks:
Q. And one of the things you testified to
before this jury is that Jamel Lewis was best
friends with Lawrence Parks; is that right?
A. Yes.
Q. And then you were asked right after that,
by [defense counsel], did you get as part of
discovery in the trial pictures of members of
the South Side Cartel; correct?
A. Yes.
Q. And that you had the opportunity to look
at those pictures; right?
A. Yes.
Q. And one of those pictures in the chart
that you got was Larry Parks; correct?
A. It was more than Larry Parks, yes.
Q. Yes, but one of the pictures --
A. Yes.
Q. -- was Larry Parks; correct?
A. Yes.
42 A-2317-14T3
Q. And you didn't get that chart when you
testified in November of 2012; correct?
A. No.
Q. Name me one time, Mr. Bond, in 2012 when
you even mentioned the name of Larry Parks.
. . . .
A. I can't answer that yes or no, judge.
. . . .
Q. Well, isn't it fair to say that not once
does Larry Parks' name come up?
A. I can't answer that yes or no.
Q. Okay. Why can't you answer it?
. . . .
A. Because of the simple fact that during
my duress hearing, it wasn't based on the
South Side Cartel. Only thing my duress
hearing was . . . to show enough for me to get
a separate trial from the rest of my three
codefendants. It wasn't in depth for me to
go into all these other details[.]
The final instance relates to questions about gang members'
nicknames:
Q. Okay. And another thing you never
mentioned in November of 2012, you never
mention that Farad Roland's nickname was BU;
correct?
A. No.
Q. And that was part of that chart; correct?
A. I grew up with all these guys, so, I mean
--
43 A-2317-14T3
Q. And you never mention that Amin Roland's
nickname was Crack; correct?
A. No.
Q. But that was part of the chart that you
got before trial; right?
A. Yes.
Q. And you never mentioned that Larry Parks'
nickname was Big L; correct?
A. Yes.
Q. Because you never mentioned Larry Parks
at all; right? So, that was something new
that you testified during the trial; correct?
. . . .
A. I can't answer that.
Defendant contends all three of the above-referenced
instances were improper "generic" accusations of tailoring his
testimony to the pre-trial discovery. He asserts "there were no
legitimate grounds for which the prosecutor could infer [he] was
tailoring his testimony; other than to attack his credibility."
He further posits: "[t]he so-called inconsistencies relied upon
by the State simply did not exist and the State's inference that
[he] had tailored his testimony was patently unfair and deprive[d]
[him] of a fair trial."
Contrary to defendant's contentions, the allegations of
tailoring were all specific, not generic, as they related to
44 A-2317-14T3
perceived inconsistencies between his trial testimony and his
pre-trial statements. While defendant maintains there were no
true inconsistencies, at the very least, his trial testimony was
not consistent with his pre-trial statements and the prosecutor
was permitted to cross-examine him about those differences.
Accordingly, any accusations of tailoring were specific rather
than generic, and hence not improper. Furthermore, it does not
violate Daniels to question a defendant about tailoring his
testimony to the pre-trial discovery.
V.
In point III of his counselled brief, defendant contends the
court improperly refused to sanitize his prior convictions for
weapons possession offenses under State v. Brunson, 132 N.J. 377
(1993). In Brunson, the Court modified its ruling in State v.
Sands,5 holding that
in those cases in which a testifying defendant
previously has been convicted of a crime that
is the same or similar to the offense charged,
the State may introduce evidence of the
defendant's prior conviction limited to the
degree of the crime and the date of the offense
but excluding any evidence of the specific
crime of which defendant was convicted. That
method of impeachment will insure that a prior
offender does not appear to the jury as a
citizen of unassailable veracity and
simultaneously will protect a defendant
against the risk of impermissible use by the
5
76 N.J. 127 (1978).
45 A-2317-14T3
jury of prior-conviction evidence. The
balance struck adequately vindicates the
State's interest in using the prior conviction
to cast doubt on the defendant's credibility
without subjecting defendant to the
extraordinary prejudice that follows if the
prior crime was specifically named or
described.
[Brunson, supra, 132 N.J. at 391-92 (citation
omitted).]
When the convictions are dissimilar, they may be admitted
without limitation. Id. at 394. A court, however, has discretion
to consider sanitization of prior convictions in any circumstance
that poses a risk of undue prejudice to the defendant. State v.
Hamilton, 193 N.J. 255, 269 (2008).
Under Brunson, supra, 132 N.J. at 391-93, evidence of
defendant's prior weapons convictions should have been sanitized
because they were similar to the weapons offenses he faced in the
present case, and the evidence should have been limited to the
degree of the crimes and the date of the offenses. The court's
determination at the Sands hearing, that defendant's weapons
convictions did not need to be sanitized because they were not too
remote, was erroneous.
Nonetheless, we need not reverse on this basis. First,
defendant cannot show that the jury impermissibly used his prior
weapons possession convictions as evidence he had a propensity to
commit such offenses. Indeed, the jury acquitted defendant of all
46 A-2317-14T3
weapons offenses.
Second, evidence of a defendant's prior weapons possession
convictions was admissible without sanitization under the "opening
the door doctrine." See Isko v. Planning Bd. of Twp. of
Livingston, 51 N.J. 162, 175 (1968) (affirming an order or judgment
on appeal if it is correct, even though the judge gave the wrong
or different reasons for it). "The 'opening the door doctrine'
is essentially a rule of expanded relevancy and authorizes
admitting evidence which otherwise would have been irrelevant or
inadmissible in order to respond to (1) admissible evidence that
generates an issue, or (2) inadmissible evidence admitted by the
court over objection." State v. James, 144 N.J. 538, 554 (1996).
It "allows a party to elicit otherwise inadmissible evidence when
the opposing party has made unfair prejudicial use of related
evidence." Ibid. It "operates to prevent a defendant from
successfully excluding from the prosecution's case-in-chief
inadmissible evidence and then selectively introducing pieces of
this evidence for the defendant's own advantage, without allowing
the prosecution to place the evidence in its proper context."
Ibid. Our Supreme Court has emphasized that the opening the door
doctrine can be used only "to prevent prejudice," and may not "be
subverted into a rule for [the] injection of prejudice." State
v. Vandeweaghe, 177 N.J. 229, 238 (2003) (citations omitted).
47 A-2317-14T3
During cross-examination of several State witnesses, defense
counsel elicited testimony that they had never seen defendant with
a weapon. During his direct testimony, defendant stated he: hated
gangs; was not into robbery and had never robbed anybody; never
threatened anybody; was not a "tough guy;" and was afraid of Lewis
and the South Side Cartel. That testimony was prejudicial to the
prosecution, as it suggested defendant had never carried a gun.
Thus, the testimony elicited by defendant stating or
suggesting that he had never carried a gun opened the door for the
State to demonstrate he had carried a weapon in the past.
Regardless of its propriety, defendant was not prejudiced by the
admission of the unsanitized evidence because he was acquitted of
the weapons possession offenses.
VI.
Defendant's remaining claims of prosecutorial misconduct and
cumulative error, as set forth in Points I(A), (B), (C), (F), (G)
and III of his pro se supplemental brief, lack sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Accordingly, we conclude by addressing the sentencing arguments
raised in Point IV of his counselled brief. Specifically,
defendant contends his sentence is excessive, that the court
engaged in impermissible "double counting," and that the court
should have found mitigating factor four (N.J.S.A. 2C:44-1(b)(4):
48 A-2317-14T3
"There were substantial grounds tending to excuse or justify the
defendant's conduct, though failing to establish a defense[.]").
Our review of sentencing determinations is limited. State
v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily
disturb a sentence imposed that is not manifestly excessive or
unduly punitive, does not constitute an abuse of discretion, and
does not shock the judicial conscience. State v. O'Donnell, 117
N.J. 210, 215-16, 220 (1989). In sentencing, the trial court
"first must identify any relevant aggravating and mitigating
factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the
case." State v. Case, 220 N.J. 49, 64 (2014). The court must
then "determine which factors are supported by a preponderance of
[the] evidence, balance the relevant factors, and explain how it
arrives at the appropriate sentence." O'Donnell, supra, 117 N.J.
at 215. We are "bound to affirm a sentence, even if [we] would
have arrived at a different result, as long as the trial court
properly identifie[d] and balance[d] aggravating and mitigating
factors that [were] supported by competent credible evidence in
the record." Ibid.
In sentencing defendant, the judge found four aggravating
factors, namely, factor one (N.J.S.A. 2C:44-1(a)(1): "The nature
and circumstances of the offense, and the role of the actor
therein, including whether or not it was committed in an especially
49 A-2317-14T3
heinous, cruel, or depraved manner"); two (N.J.S.A. 2C:44-1(a)(2):
"The gravity and seriousness of harm inflicted on the victim,
including whether or not the defendant knew or reasonably should
have known that the victim of the offense was particularly
vulnerable or incapable of resistance due to advanced age, ill-
health, or extreme youth, or was for any other reason substantially
incapable of exercising normal physical or mental power of
resistance"); three (N.J.S.A. 2C:44-1(a)(3): "The risk that the
defendant will commit another offense"); and nine (N.J.S.A. 2C:44-
1(a)(9): "The need for deterring the defendant and others from
violating the law").
In finding aggravating factors one and two applied, the judge
explained:
I make those findings based upon the nature
of the case and the defendant's role in it.
Even if [] defendant's role was merely to act
as the lure, to get Miss Worthy into this
thing, that act, that involvement was the
linchpin that brought everything together.
The gravity of the harm inflicted upon [her].
There are two predicate offenses for which []
defendant was convicted that could form the
basis for the felony murder, both the
kidnapping and the second degree robbery. In
either case, the sense of betrayal that Miss
Worthy must have felt when Mr. Bond lured her
into that in and of itself can be considered
an aggravating factor. The fact that her body
. . . [and] her car w[ere] burned in an effort
to try to destroy evidence exhibits the
heinous nature of all the actors in this case,
and . . . I'm bound by the jury verdict.
50 A-2317-14T3
There's no special verdict in this case that
says the jury found that they were satisfied
that this was duress on this count or that
count.
The judge did not find any mitigating factors. He
specifically found mitigating factor four was not appropriate,
stating: "The fact that a defense had been interposed and,
according to [defense counsel], the jury verdict was based upon
that in part but ignored in part, I don't think that that forms
the basis for that mitigating factor." As a result, the judge
determined that "the aggravating factors significantly and
substantially outweigh [the] nonexistent mitigating factors."
Defendant's argument as to mitigating factor four is not
persuasive. The court considered defendant's duress argument at
sentencing and rejected it, just as the jury did.
We conclude, however, that the sentencing court improperly
considered the arson in finding aggravating factor one. Defendant
was acquitted of arson. Nevertheless, the court determined that
the arson "exhibit[ed] the heinous nature of all the actors in
this case," including defendant. Because defendant was acquitted
of arson, the court should not have considered that evidence
against defendant in applying aggravating factor one. See State
v. Rogers, 236 N.J. Super. 378, 387 (App. Div. 1989) ("Although a
defendant may be vicariously accountable for the crimes his
51 A-2317-14T3
accomplice commits, he is not vicariously accountable for
aggravating factors that are not personal to him."), aff'd, 124
N.J. 113 (1991).
Additionally, it appears that the court engaged in prohibited
"double counting" by considering "the gravity and seriousness of
harm inflicted on the victim" as an aggravating factor. Prohibited
"double counting" occurs when the court considers one of the
required elements of the offense charged as an aggravating factor.
See State v. Yarbough, 100 N.J. 627, 633 (1985) (finding facts
that the Legislature has incorporated into the Code as part of the
original grading of the offense are not to be weighed as
aggravating and mitigating factors to arrive at the appropriate
sentence), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L.
Ed. 2d 308 (1986).
"It is well-settled that where the death of any individual
is an element of the offense, that fact cannot be used as an
aggravating factor for sentencing purposes." State v. Carey, 168
N.J. 413, 425 (2001). Thus, because defendant was convicted of
felony-murder, "the gravity and seriousness of harm" inflicted on
the victim should not have been considered in determining the
aggravating factors. Id. at 426. Since the court erred in finding
aggravating factor two, we remand for reconsideration of
defendant's sentence in the absence of that aggravating factor.
52 A-2317-14T3
Defendant's conviction is affirmed. We remand for the court
to resentence defendant without consideration of aggravating
factor two or the arson, and to correct the JOC to reflect
defendant's conviction for second-degree robbery on count two of
the indictment.
53 A-2317-14T3