STATE OF NEW JERSEY VS. VONTE L. SKINNER(06-11-1756, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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 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-5365-14T2
STATE OF NEW JERSEY
Plaintiff-Respondent,
v .
VONTE L. SKINNER, a/k/a
HASON SKINNER, HASAAN SKINNER,
and LAMAR ANDERSON,
Defendant-Appellant.
_________________________________________________
Submitted September 27, 2017 – Decided November 29, 2017
Before Judges Alvarez, Currier, and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 06-11-1756.
Joseph E. Krakora, Public Defender, attorney
for appellant (Richard Sparaco, designated
counsel, on the brief).
Scott A. Coffina, Burlington County
Prosecutor, attorney for respondent (Nicole
Handy, Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
After a third trial, defendant Vonte L. Skinner was convicted
of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count
five), and third-degree aggravated assault with a deadly weapon,
N.J.S.A. 2C:12-1(b)(2) (count six).1 He was sentenced on May 22,
2015, to a mandatory extended term sentence of sixteen years
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
He appeals and we affirm. The jury did not reach a verdict as to
the most serious charge of first-degree attempted murder, N.J.S.A.
2C:5-1(a)(3) and N.J.S.A. 2C:11-3(a)(1) (count one). It was
dismissed with prejudice, along with any remaining counts of the
indictment.
During his second trial, defendant had been acquitted of
third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)
(count three), and second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count four), but convicted
of the remaining counts of the indictment. Defendant appealed,
and the Supreme Court reversed. The Court held that the verdict
was tainted by the admission of violent rap lyrics that defendant
authored. Defendant's first trial ended in a mistrial.
1
The verdict sheet interrogatory as to count six asked the jury
whether defendant "did purposely or knowingly cause bodily injury
. . . with a deadly weapon, to wit: a 9[-]millimeter handgun."
2 A-5365-14T2
The victim's testimony was essentially the same during this
trial as in the earlier proceedings. He was a street-level dealer
who sold drugs for Brandon Rothwell, who had given him a TEC-9
machine gun in furtherance of the criminal enterprise.
Defendant began acting as Rothwell's muscle in 2005. After
defendant joined the group, the victim's profits declined, and he
began withholding money from Rothwell. Rothwell asked the victim
to return the TEC-9 when he realized the victim was withholding a
portion of the profits.
On November 8, 2005, defendant invited the victim to come to
Willingboro to socialize, drink, and use drugs with him, but the
victim declined because he had never gotten along with defendant.
Around 10:00 p.m., defendant called the victim again, asking to
meet so that he could buy drugs. At that point in time, the victim
was in Camden and under the influence of PCP, marijuana, and
alcohol. As he drove to the meeting site, defendant called him
twice to confirm his location and the timing. Telephone
communication records corroborated that defendant repeatedly
called the victim.
When the victim arrived and got out of his car, he saw
defendant walking towards him. Defendant drew a gun and started
shooting from a distance of ten to twelve feet. Although the
3 A-5365-14T2
victim saw someone standing behind defendant, that person did not
shoot.
Defendant shot the victim seven times; he was paralyzed from
the waist down as a result of his injuries. The victim recalled
telling the emergency personnel that came to his aid that defendant
was the shooter. Once he was hospitalized, however, the victim
was initially reluctant to speak to police. During an interview,
he indicated "that he really was not sure if he wanted to speak
without his mom being there." When his mother arrived, he
mentioned that defendant shot him. In a separate interview, the
victim indicated that he had a continuing feud with an acquaintance
who had robbed his cousin. He was certain that individual was not
the assailant, even though the week before he had shot up that
person's car. The victim recognized the weapon, a 9-millimeter
handgun, used to shoot him as the one he shared with defendant and
Rothwell in the drug business.
In addition to the victim, the State's witnesses included
several officers and emergency personnel who arrived at the scene.
William Palmer, a Willingboro First Aid Squad volunteer,
accompanied the victim in an ambulance and asked him what happened.
He recalled the victim saying he went to meet a friend, with whom
he exchanged a few words, when the friend shot him. When asked
4 A-5365-14T2
for the friend's name, the victim responded "Davonte" – defendant's
first name. Palmer relayed this information to police.
Willingboro Police Department Detective Joseph Dey briefly
spoke to the victim immediately before his transport. The victim
told Dey that defendant had arranged to meet, and when he arrived,
shot him. When Dey asked for the name of this person, the victim
responded "Davonte." Defendant's cell phone was found at the
scene.
Shortly after the incident, Burlington County Prosecutor's
Office Detective Sergeant Steven Craig participated in a
neighborhood canvass in the hopes of locating eyewitnesses. While
in the area, Craig encountered three men who claimed they had been
visiting a friend, and who denied any knowledge of the incident.
One of them was later identified as the individual with whom the
victim had the ongoing conflict. A person who the three men said
they were visiting that night denied that they had been at his
home.
Craig visited the victim at the hospital a few days later,
and he also said the victim refused to talk to the authorities
until his mother convinced him to do so. The victim told him, in
addition to identifying defendant, that the day of the shooting,
defendant had contacted him approximately six times. Defendant's
phone records confirmed the multiple calls to the victim.
5 A-5365-14T2
When police interviewed defendant, he admitted having met the
victim at the scene. He said he wore a white t-shirt that evening,
contrary to some neighbors' description of a man in the vicinity
who wore a dark or burgundy sweatshirt. However, defendant said
when he heard the shots, he ran away, hitched a ride with an
acquaintance, and later called his girlfriend to take him home.
The victim repeated his description of the incident,
including the identity of the shooter, in the months that followed.
When tested, the discharged shells from the scene were found to
have been ejected by a TEC-9 machine gun.
Defendant's mother, who testified on his behalf, denied he
was the shooter. She said that although he admitted to her that
he had been at the scene, he ran away when the trouble began.
Defendant's mother also said that he only wore dark clothing,
usually black.
The victim's cousin Alexandria Ross, the mother of Rothwell's
child, testified on defendant's behalf. She had known defendant
since he was a child, and denied that he had a weapon or sold
drugs.
When cross-examined, Ross admitted she initially told police
that defendant said he arranged to meet the victim to buy drugs.
When she confronted defendant about his phone being found at the
scene, he acknowledged that he was the last person who saw the
6 A-5365-14T2
victim before he was shot. Ross told police that she was afraid
of defendant.
Although cross-examined about the details of her original
statement, which diverged from her trial testimony, Ross insisted
that she did not believe defendant shot the victim. She claimed
the victim told her, after his release from a physical
rehabilitation facility, that Rothwell and defendant had nothing
to do with the shooting.
Before the trial began, the trial judge denied defendant's
motion to dismiss the indictment based on principles of double
jeopardy, collateral estoppel, and fundamental fairness.
Defendant repeated the arguments in support of his application for
a new trial, and he also contended that the verdict was against
the weight of the evidence. We discuss the judge's factual
findings and rulings on the law on both applications in the
relevant sections.
On appeal, defendant raises the following points:
POINT I – THE TRIAL COURT SHOULD HAVE
DISMISSED COUNTS ONE, FIVE AND SIX OF THE
INDICTMENT ON GROUNDS OF DOUBLE JEOPARDY.
POINT II – THE STATE WAS PRECLUDED FROM TRYING
DEFENDANT ON THE REMAINING COUNTS OF THE
INDICTMENT ON THE GROUNDS OF COLLATERAL
ESTOPPEL.
7 A-5365-14T2
POINT III – THE STATE WAS PRECLUDED FROM
RETRYING DEFENDANT ON THE REMAINING COUNTS ON
GROUNDS OF FUNDAMENTAL UNFAIRNESS.
POINT IV – DEFENDANT SHOULD NOT HAVE RECEIVED
A MANDATORY EXTENDED TERM UNDER N.J.S.A.
2C:43-6c BECAUSE THE JURY HAD PREVIOUSLY
ACQUITTED HIM OF POSSESSION OF A FIREARM.
POINT V – THE TRIAL COURT SHOULD HAVE GRANTED
DEFENDANT'S MOTION FOR NEW TRIAL PURSUANT TO
R. 3:20-1 ON THE GROUNDS THAT A NEW TRIAL WAS
REQUIRED IN THE INTEREST OF JUSTICE IN THAT
THE VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE.
In his uncounseled letter brief, defendant raises the
following issue for our consideration:
POINT I
THE TRIAL COURT SHOULD HAVE GRANTED
DEFENDANT'S MOTION FOR A NEW TRIAL PURSUANT
TO R. 3:20-1 ON THE GROUNDS THAT A NEW TRIAL
WAS REQUIRED IN THE INTEREST OF JUSTICE IN
THAT VERDICTS WERE SHARPLY AGAINST THE WEIGHT
OF THE EVIDENCE, NECESSITATING REVERSAL.
I.
Defendant's double jeopardy argument lacks merit. The
underlying purpose of the Double Jeopardy Clause, U.S. Const.
amend. V, is to prohibit the State from making "repeated attempts
to convict an individual for an alleged offense, thereby subjecting
him to embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent he may be
8 A-5365-14T2
found guilty." Green v. United States, 355 U.S. 184, 187-88, 78
S. Ct. 221, 223, 2 L. Ed. 2d 199, 204 (1957).
Generally, however, the Double Jeopardy Clause does not "bar
reprosecution of a defendant whose conviction is overturned on
appeal[]" because, until the proceedings have run their full
course, the defendant remains in a state of "continuing jeopardy."
Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S.
Ct. 1805, 1813, 80 L. Ed. 2d 311, 324 (1984) (citation omitted).
Additionally,
double jeopardy . . . do[es] not prohibit
retrial of a defendant when a prior
prosecution for the same offense has ended in
mistrial attributable to the inability of the
jury to agree on a verdict, because the
jeopardy to which the defendant is exposed is
considered a continuation of original
jeopardy, which was not terminated by the
mistrial.
[State v. Johnson, 436 N.J. Super. 406, 421
(App. Div. 2014) (alteration in original)
(citation omitted) (quoting State v. Abbati,
99 N.J. 418, 425-26 (1985)).]
The State cannot reprosecute a defendant on a charge that is
reversed because of insufficient evidence to support the
conviction. See Lydon, supra, 406 U.S. at 308-09, 104 S. Ct. at
1813, 80 L. Ed. 2d at 325; State v. Kelly, 201 N.J. 471, 485
(2010). Nor can the State correct substantive failures of proof
on remand. Reversal for failure of proof "means that the
9 A-5365-14T2
government's case was so lacking that it should not have even been
submitted to the jury." State v. Millett, 272 N.J. Super. 68, 97
(App. Div. 1994) (emphasis omitted) (quoting Burks v. United
States, 437 U.S. 1, 16, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1, 12-
13 (1978)). "[A]lthough a remand for a new trial is proper where
reversal of a criminal conviction is predicated on trial error,
the Double Jeopardy Clause forbids a second trial where the
conviction has been overturned due to a failure of proof at trial."
State v. Tropea, 78 N.J. 309, 314 (1978) (citation omitted).
Here, there was neither a failure of proof nor lack of
evidence. Although defendant, citing Kelly, supra, 201 N.J. at
485, argues the State cannot reprosecute a defendant on a charge
reversed on appeal due to insufficient evidence, that is not what
occurred here. Defendant's prior convictions were not reversed
due to any failure of proof; rather, they were reversed due to a
"trial error" attributable to the erroneous admission of
prejudicial evidence. See Tropea, supra, 78 N.J. at 314-15. Thus,
throughout both the first trial resulting in a mistrial, and the
second trial resulting in overturned convictions, defendant has
remained in a state of "continuing jeopardy." Lydon, supra, 466
U.S. at 308, 104 S. Ct. at 1813, 80 L. Ed. 2d at 324-25; Johnson,
supra, 436 N.J. Super. at 421 (citing Abbati, supra, 99 N.J. at
425-26).
10 A-5365-14T2
Neither the Supreme Court nor the Appellate Division found
that if the rap lyrics were excluded, the remaining evidence was
insufficient. The language in the Supreme Court's decision and
the majority Appellate Division opinion explicitly discussed only
the potential for prejudice created by admission of the rap lyrics
in light of the State's proofs. In fact, in this case, in addition
to the victim's direct testimony identifying defendant as the
perpetrator, defendant's cell phone was discovered at the scene,
and he admitted meeting the victim at the scene of the crime.
Accordingly, double jeopardy principles do not apply. Since the
prior reversal was not due to a lack of proof, defendant has been
under continuing jeopardy.
II.
Defendant also contends the State was collaterally estopped
from retrying him on the aggravated assault with a firearm because
the jury, during defendant's second trial, acquitted him of
unlawful possession of a handgun and possession of a handgun for
an unlawful purpose. Collateral estoppel is embodied in the Double
Jeopardy Clause and "'means simply that when an issue of ultimate
fact has once been determined by a valid and final judgment, that
issue cannot again be litigated between the same parties in any
future lawsuit.'" State v. Brown, 394 N.J. Super. 492, 501 (App.
11 A-5365-14T2
Div. 2007) (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct.
1189, 1194, 25 L. Ed. 2d 469, 475 (1970)).
The United States Supreme Court has held the doctrine of
collateral estoppel is not applicable when a jury, in a single
trial, returns a verdict of acquittals and convictions that are
inconsistent with one another. Kelly, supra, 201 N.J. at 487
(citing United States v. Powell, 469 U.S. 57, 62-67, 105 S. Ct.
471, 475-78, 83 L. Ed. 2d 461, 467-70 (1984)). "Our system of
justice has long accepted inconsistent verdicts as beyond the
purview of correction by our courts, and therefore a defendant is
forbidden from collaterally attacking a guilty verdict on one
count with an apparently irreconcilable acquittal on another
count." Ibid. (citing Powell, supra, 469 U.S. at 58, 105 S. Ct.
at 473, 83 L. Ed. 2d at 464).
The party asserting the collateral estoppel bar as a result
of a second trial must show:
(1) the issue to be precluded is identical to
the issue decided in the prior proceeding; (2)
the issue was actually litigated in the prior
proceeding; (3) the court in the prior
proceeding issued a final judgment on the
merits; (4) the determination of the issue was
essential to the prior judgment; and (5) the
party against whom the doctrine is asserted
was a party to or in privity with a party to
the earlier proceeding.
[Brown, supra, 394 N.J. Super. at 502(emphasis omitted) (quoting First Union Natl
12 A-5365-14T2
Bank v. Penn Salem Marina, 190 N.J. 342, 352
(2007)).]
Hence, when dealing with multiple trials, collateral estoppel
may bar a later prosecution where the jury's acquittal in a prior
case demonstrated its rejection of the essential facts on which
the State sought to base a second prosecution. See State v.
Cormier, 46 N.J. 494, 509 (1966).
In Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360,
174 L. Ed. 2d 78 (2009), the Court held that when a defendant is
acquitted on some charges and the jury cannot reach a verdict on
others, collateral estoppel principles may apply to the State's
attempt to retry the defendant on the "hung counts." Id. at
121-23, 129 S. Ct. at 2368-69, 174 L. Ed. 2d at 89-90. In assessing
the merits of a collateral estoppel argument, the jury's failure
to return a verdict on the hung counts must be treated as a
"nonevent." Id. at 120, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88.
That is, the trial court must not speculate on the jury's reasons
for being unable to return a verdict, and instead should focus on
the significance of the acquittal. Id. at 119-23, 129 S. Ct. at
2367-68, 174 L. Ed. 2d at 88-90.
The Court in Yeager discussed Ashe:
In Ashe, we squarely held that the Double
Jeopardy Clause precludes the Government from
relitigating any issue that was necessarily
decided by a jury's acquittal in a prior
13 A-5365-14T2
trial. In that case, six poker players were
robbed by a group of masked men. Ashe was
charged with--and acquitted of--robbing
Donald Knight, one of the six players. The
State sought to retry Ashe for the robbery of
another poker player only weeks after the
first jury had acquitted him. The second
prosecution was successful: Facing
"substantially stronger" testimony from
"witnesses [who] were for the most part the
same," Ashe was convicted and sentenced to a
35-year prison term. We concluded that the
subsequent prosecution was constitutionally
prohibited. Because the only contested issue
at the first trial was whether Ashe was one
of the robbers, we held that the jury's
verdict of acquittal collaterally estopped the
State from trying him for robbing a different
player during the same criminal episode. We
explained that "when an issue of ultimate fact
has once been determined by a valid and final
judgment" of acquittal, it "cannot again be
litigated" in a second trial for a separate
offense. To decipher what a jury has
necessarily decided, we held that courts
should "examine the record of a prior
proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter,
and conclude whether a rational jury could
have grounded its verdict upon an issue other
than that which the defendant seeks to
foreclose from consideration." We explained
that the inquiry "must be set in a practical
frame and viewed with an eye to all the
circumstances of the proceedings."
[Id. at 119-20, 129 S. Ct. at 2366-67, 174 L.
Ed. 2d at 87-88 (alteration in original)
(citations omitted).]
This case differs from Yeager, however, because there was no
valid final judgment of acquittal. Defendant remained in a state
of "continuing jeopardy" during the pendency of the prior appeal
14 A-5365-14T2
and petition for certification. Lydon, supra, 466 U.S. at 308,
104 S. Ct. at 1813, 80 L. Ed. 2d at 324-25. "[S]eemingly
inconsistent verdicts in the first trial," do not "establish that
the jury determined an ultimate fact that precluded a retrial of
the reversed convictions." Kelly, supra, 201 N.J. at 494.
"Without the determination of an ultimate fact that can rationally
foreclose some other issue from consideration, double-jeopardy
principles do not apply." Id. at 488.
Furthermore, "[t]he defendant's burden is particularly
difficult to satisfy when the jury has reached inconsistent
verdicts. Such verdicts, whether based on error, confusion, or a
desire to compromise, give little guidance as to the jury's factual
findings." United States v. Citron, 853 F.2d 1055, 1058 (2d Cir.
1988). During his second trial, although acquitted of possession
of a handgun and possession of a handgun for an unlawful purpose,
he was convicted of assault with a deadly weapon——a handgun——a
seemingly inconsistent verdict.
In addressing this collateral estoppel argument, the crucial
factor is that the jury convicted appellant of two counts of
aggravated assault with a weapon in the second trial. See Evans
v. United States, 987 A.2d 1138, 1141-42 (D.C. Jan. 28, 2010),
cert. denied, 562 U.S. 1202, 131 S. Ct. 1043, 178 L. Ed. 2d 867(2011). "The problem is that the same jury reached inconsistent
15 A-5365-14T2
results; once that is established principles of collateral
estoppel -- which are predicated on the assumption that the jury
acted rationally and found certain facts in reaching its verdict
-- are no longer useful." Id. at 1141 (citing Powell, supra, 469
U.S. at 68, 105 S. Ct. at 478, 83 L. Ed. 2d at 471); accord
Standefer v. United States, 447 U.S. 10, 23 n.17, 100 S. Ct. 1999,
2007, 64 L. Ed. 2d 689, 699 (1980) ("This inconsistency is reason,
in itself, for not giving preclusive effect to the acquittals[.]").
As Justice Holmes explained, "[t]he most that can be said in such
cases is that the verdict shows that either in the acquittal or
the conviction the jury did not speak their real conclusions, but
that does not show that they were not convinced of the defendant's
guilt." Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189,
190, 76 L. Ed. 356, 359 (1932) (quoting Steckler v. United States,
7 F.2d 59, 60 (2d Cir. 1925)).
"Our system of justice has long accepted
inconsistent verdicts as beyond the purview of correction by our
courts, and therefore a defendant is forbidden from collaterally
attacking a guilty verdict on one count with an apparently
irreconcilable acquittal on another count." Kelly, supra, 201
N.J. at 487 (citation omitted). Since defendant would have been
precluded from attacking the disparity between his convictions for
attempted murder and aggravated assault, and acquittals for
16 A-5365-14T2
weapons charges, following his second trial, defendant must also
be barred from asserting collateral estoppel when those
convictions were later overturned due to the erroneous admission
of prejudicial evidence. The verdicts, assuming for the sake of
argument that they were inconsistent, could not have been
successfully attacked then. They cannot be attacked now after a
third trial, required as a result of the reversal following his
second trial. Furthermore, the jury in this trial was specifically
asked about defendant's alleged use of a 9-millimeter handgun on
the assault with a deadly weapon. There was neither an
inconsistency between verdicts, nor was the State collaterally
estopped from this prosecution.
III.
Defendant argues that the doctrine of fundamental fairness
should have resulted in the dismissal of the indictment. "The
doctrine of fundamental fairness 'serves to protect citizens
generally against unjust and arbitrary governmental action, and
specifically against governmental procedures that tend to operate
arbitrarily.'" State v. Saavedra, 222 N.J. 39, 67 (2015) (emphasis
omitted) (quoting Doe v. Poritz, 142 N.J. 1, 108 (1995)). The
Supreme Court has described this doctrine as "an integral part of
due process" that "is often extrapolated from or implied in other
constitutional guarantees." State v. Miller, 216 N.J. 40, 71
17 A-5365-14T2
(2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed.
2d 339 (2014) (quoting Oberhand v. Dir., Div. of Taxation, 193
N.J. 558, 578 (2008)); see also Abbati, supra, 99 N.J. at 429.
The doctrine is applied "sparingly" and only where the
"interests involved are especially compelling[;]" if a defendant
would be subject "to oppression, harassment, or egregious
deprivation," it is be applied. Doe, supra, 142 N.J. at 108(quoting State v. Yoskowitz, 116 N.J. 679, 712 (1989) (Garibaldi,
J., concurring and dissenting)). It can be applied "at various
stages of the criminal justice process even when such procedures
were not constitutionally compelled." Ibid. (citations omitted).
The doctrine's "primary considerations should be fairness and
fulfillment of reasonable expectations in the light of the
constitutional and common law goals." Yoskowitz, supra, 116 N.J.
at 706 (emphasis omitted) (quoting State v. Currie, 41 N.J. 531,
539 (1964)).
The doctrine is an "elusive concept" and its "exact boundaries
are undefinable." Id. at 704-05 (citation omitted). "For the
most part, it has been employed when the scope of a particular
constitutional protection has not been extended to protect a
defendant." Id. at 705. Dismissal on grounds that a further
prosecution is fundamentally unfair is necessary because "[t]he
primary considerations should be fairness and fulfillment of
18 A-5365-14T2
reasonable expectations in the light of the constitutional and
common law goals." Currie, supra, 41 N.J. at 539 (citation
omitted). The fundamental fairness doctrine does not preclude a
retrial where "the elements of harassment and oppression which
[are] the historic object of the constitutional and common law
. . . principles are not . . . present." State v. Tsoi, 217 N.J.
Super. 290, 297 (App. Div. 1987).
In Abbati, supra, 99 N.J. at 435, the Supreme Court, noting
that although principles of double jeopardy did not bar a retrial,
reversed the Appellate Division and remanded the case to the trial
court to reconsider based on a newly articulated standard regarding
whether an indictment should be dismissed. It required evaluation
of the following factors:
(1) [T]he number of prior mistrials and the
outcome of the juries' deliberations, so far
as is known; (2) the character of prior trials
in terms of length, complexity, and similarity
of evidence presented; (3) the likelihood of
any substantial difference in a subsequent
trial, if allowed; (4) the trial court's own
evaluation of the relative strength of each
party's case; and (5) the professional conduct
and diligence of respective counsel,
particularly of the prosecuting attorney.
[Ibid.]
See also State v. Cruz, 171 N.J. 419, 430 (2002).
The "trial court may dismiss an indictment with prejudice
after successive juries have failed to agree on a verdict when it
19 A-5365-14T2
determines that the chance of the State's obtaining a conviction
upon further retrial is highly unlikely." Abbati, supra, 99 N.J.
at 435 (citation omitted). The "court must also give due weight
to the prosecutor's decision to reprosecute, assessing the reasons
for that decision, such as the gravity of the criminal charges and
the public's concern in the effective and definitive conclusion
of criminal prosecutions." Ibid. "Conversely, the court should
accord careful consideration to the status of the individual
defendant and the impact of a retrial upon the defendant in terms
of untoward hardship and unfairness." Ibid.Discussing the Abbati factors when the September 29, 2014
decision was rendered, the trial judge found:
One, . . . we have a hung jury and a
conviction but now these rap lyrics are out
if there's a third trial.
Two, . . . the rap lyrics are out so the
evidence presumably is weaker for the State
than it was before, but doesn't certainly
fall, in my view, on my analysis, to
insufficient evidence to prove a case but it
is a piece that is missing that was there
before. . . . The[re] were eight trial days
approximately. And so, . . . in terms of
length and complexity, it's not overly – this
is not a seven week trial. This is not . . .
something that took months and months. So in
the continuum of trials, it falls in that
mid[-]range. It's certainly not a quick
simple nothing trial . . . [b]ut it’s also not
something that took weeks and weeks.
20 A-5365-14T2
Three, the likelihood of any substantial
difference in a subsequent trial, if allowed.
And this is the argument that [defendant's
attorney] was making . . . how's the case going
to get any stronger for the State? Well, it's
not . . . Yes, you're pulling the rap lyrics
out, that may make it a little weaker. But
[the State is] not left with nothing, they
still have his testimony that even both the
Appellate Court and the Supreme Court provided
some sufficiency and [N.J.R.E.] 404(b) was
only bolstering their case. So yes, there is
a case to be made. . . .
[Factor four,] the [t]rial [c]ourt's own
evaluation of the relative strength of each
party's case, I don't mean to repeat myself,
I think I've gone through that quite a bit on
the relative proofs.
Five, the professional conduct and
diligence of respective counsel, particularly
of the prosecuting attorney. This is really
the bad faith piece that [defendant's
attorney] is asserting, but the [c]ourt is not
accepting, that the State acted in bad faith
in admitting or trying to admit the rap
lyrics. I think they felt that it was
legitimate . . . evidence. You have a trial
judge who said it was. You have at least one
appellate judge [who] said it was, it was a
split decision that went up to the Supreme
Court. So it wasn't so off base . . . .
Undoubtedly the Supreme Court was unanimous
in their decision. But this happens. That
doesn't necessarily lead to [] bad faith. . .
. [T]his was something [the State] felt was a
legitimate piece of proof and ultimately it
was determined that was improper and
incorrect. . . .
So given the Abbati factors and weighing
them on a qualitative and quantitative basis,
this [c]ourt is not persuaded that there was
such fundamental [un]fairness in retrying the
21 A-5365-14T2
case as there would be after multiple
mistrials. . . .
In addition, and I already made the point
about still having [sixteen] and a half years
left of a sentence to serve if you look at the
[thirty] years and that's the way the cases
have done it. They've taken the sentence that
was given and determined how much of that
would be left. As so again, that wouldn't
lead the [c]ourt to find fundamental
unfairness such that I would dismiss the
indictment at this juncture[.]
After the trial, the trial judge did not expressly address
defendant's argument regarding fundamental fairness, but referred
back to her prior analysis.
We agree with the trial court's initial analysis of the Abbati
factors. Principles of fundamental fairness did not bar a retrial.
IV.
Defendant contends, in his counseled and uncounseled brief,
that he should have been granted a new trial because the verdict
was against the weight of the evidence. We do not agree. The
jury's verdict clearly hinged upon its conclusion that the victim
was a credible witness.
On its face, contrary to defendant's arguments, the record
supports the jury's determination. The victim's testimony that
defendant called him repeatedly to set up the meeting was supported
by telephone communication records. Defendant acknowledges that
he was at the scene and left his cell phone there. The ballistics
22 A-5365-14T2
evidence corroborated that all seven shots were fired from the
same 9-millimeter handgun, which the victim said he recognized.
The victim's initial identification of defendant as the shooter
was made while there was a question as to his very survival, while
he was being transported from the scene after being shot seven
times.
"[A] motion for a new trial is addressed to the sound
discretion of the trial judge, and the exercise of that discretion
will not be interfered with on appeal unless a clear abuse has
been shown." State v. Armour, 446 N.J. Super. 295, 306 (App. Div.
2016) (alteration in original) (citations omitted) (internal
quotation marks omitted) (quoting State v. Russo, 333 N.J. Super.
119, 137 (App. Div. 2000)). Moreover, the governing standard set
forth in Rule 3:20-1 provides that:
The trial judge on defendant's motion may
grant the defendant a new trial if required
in the interest of justice. . . . The trial
judge shall not, however, set aside the
verdict of the jury as against the weight of
the evidence unless, having given due regard
to the opportunity of the jury to pass upon
the credibility of the witnesses, it clearly
and convincingly appears that there was a
manifest denial of justice under the law.
There is no "miscarriage of justice" when "any trier of fact could
rationally have found beyond a reasonable doubt that the essential
elements of the crime were present." State v. Jackson, 211 N.J.
23 A-5365-14T2
394, 413-14 (2012) (citations omitted) (quoting State v. Afanador,
134 N.J. 162, 178 (1993)). "Thus, we review defendant's conviction
. . . under an extraordinarily lenient standard of review." Id.
at 414.
We do not attempt to reconcile the verdicts on the different
counts nor do we speculate whether verdicts resulted from "jury
lenity, mistake, or compromise," and even inconsistent
verdicts. State v. Muhammad, 182 N.J. 551, 578 (2005). We
consider the evidence presented in support of each count as though
it were presented in a separate indictment. Ibid. (citation
omitted). The jury verdict will be upheld where there is
sufficient evidence to support the conviction. Ibid. (citations
omitted).
In denying the motion for a new trial, the trial judge stated:
The State presented testimony including
investigating officers, lay witnesses and the
victim who identified the defendant as the
shooter including the EMT and Lieutenant Dey.
The State also presented physical evidence
from the scene. The defendant . . . put
himself at the scene. . . .
I am only to determine whether that
minimal standard has been met, that the jury
could have found this and it was not a manifest
denial of justice for them to find guilt on
those convictions. And given all of that
evidence, the [c]ourt certainly does not find
that the verdict was against the weight of the
evidence under that standard.
24 A-5365-14T2
We are satisfied that the judge's decision was a proper
exercise of discretion. No miscarriage of justice occurred.
V.
Finally, defendant contends that no mandatory extended term
was appropriate under N.J.S.A. 2C:43-6(c) because the jury
acquitted defendant during his second trial of possession of a
handgun. The jury concluded in the third trial, however, that
defendant was guilty of the assault while armed with a gun.
Therefore, application of the statute was appropriate.
The judge found Aggravating Factors 3, 6, and 9 outweighed
Mitigating Factors 3, 4, and 5. N.J.S.A. 2C:44-1. She accorded
substantial weight to the Aggravating Factors and less to the
Mitigating Factors, and her decision to do so was supported by the
record. The sentence of sixteen years was a reasonable exercise
of discretion, a balancing of the relevant factors that squarely
accords with the law. The sentence was well within the range. It
does not shock our conscience. See State v. Roth, 95 N.J. 334,
364-69 (1984).
Affirmed.
25 A-5365-14T2