STATE OF NEW JERSEY VS. JAMEL LEWIS STATE OF NEW JERSEY VS. ROBERT HARRIS STATE OF NEW JERSEY VS. SHARIF TORRES (10-03-0288, UNION COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-2411-15T3
A-2550-15T1
A-2551-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMEL LEWIS, a/k/a ADUAL
LEWIS, TAREAK BOND, JAMAL
LEWIS, JAMIL LEWIS, KIREESE
OCONNER and KIRESE OCONNER,
Defendant-Appellant.
_____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT HARRIS,
Defendant-Appellant.
_____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHARIF TORRES,
Defendant-Appellant.
______________________________
Submitted December 4, 2018 – Decided January 7, 2019
Before Judges Fisher, Suter and Geiger.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 10-03-0288.
Joseph E. Krakora, Public Defender, attorney for
appellants (Alison S. Perrone and Frank M. Gennaro,
Designated Counsels, on the briefs in A-2411-15;
Michael J. Confusione, Designated Counsel, on the
brief in A-2550-15, and Michele A. Adubato,
Designated Counsel, on the brief in A-2551-15).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Milton S.
Leibowitz, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the briefs).
Appellant Robert Harris filed a pro se supplemental
brief in A-2550-15.
PER CURIAM
Defendants Jamel Lewis, Robert Harris, and Sharif Torres, separately
appeal their convictions for offenses that led to and caused Tanya Worthy's
death. We consolidate these appeals for purposes of affirming their convictions
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and the sentences imposed in a single opinion. In doing so, we reject – among
other things – defendants' arguments that the Supreme Court's recent decision
in Carpenter v. United States, 585 U.S. __, 138 S. Ct. 2206 (2018) – which held
that individuals possess a legitimate expectation of privacy in the records of
their physical movements as captured by cell-site location information (CSLI),
and that a government's acquisition of CSLI constitutes a Fourth Amendment
search – requires a remand for further proceedings about the State's acquisition
and use of CSLI at their trial.
On the evening of October 28, 2008, Tanya Worthy ate in a Newark
restaurant, leaving about 6:15 p.m. She placed a take-out order for her boyfriend
Rahim Jackson, with whom she lived in Green Brook, but, rather than wait, she
asked the waitress to call her when the order was ready. She left the restaurant
and was never seen alive again.
Jackson was home watching television. At about 8:40 p.m., he heard the
garage door open and thought it odd that Worthy would be returning home,
because he had earlier attempted to reach her several times without success and
learned from the restaurant that she didn't pick up his order. He apprehensively
opened a door to the garage and saw Worthy's car in the driveway. A masked
individual, who was holding a gun, exited the car's passenger door and told him
A-2411-15T3
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not to move, but Jackson closed and locked the door. From inside the house,
Jackson observed the masked individual re-enter the car, which then backed out
of the driveway. Jackson ran to a neighbor's house and asked her to call police.
At 10:47 p.m., police and other responders arrived at a field opposite a
parking lot in Elizabeth to find a white 2005 BMW convertible engulfed in
flames. Once the blaze was extinguished, they discovered Tanya Worthy's
severely-burned body lying face-down in the rear passenger seat. An
investigation revealed she had been shot three times, twice in the chest and once
in the abdomen, prior to being burned.
The State sought to prove at trial that Worthy was killed in the course of
a robbery gone awry. Defendant Jamel Lewis, the State argued, had planned
with his cousin Rashawn Bond to rob and then kidnap Worthy; they thought that
in this way they could gain access to and rob Jackson, alleged to be a wealthy
drug dealer. Lewis and Bond enlisted help from defendants Robert Harris and
Sharif Torres, as well as Titus Lowery, an unindicted co-conspirator.
According to the State, while Worthy was visiting Bond, with whom she
was also romantically involved, defendants and Lowery stormed in, robbed her,
and kidnapped her, and then Lewis and Lowery drove away in her car, with
Worthy in the back seat, from Bond's Newark residence to Jackson's Green
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Brook residence. Bond, Harris, and Torres followed along in another car but
didn't reach Jackson's residence in time to carry out the intended home invasion
with Lewis and Lowery. Their plan botched, Lewis and Lowery fled Green
Brook with Worthy still in the car, and Bond, Harris, and Torres changed course
to meet up with them in Elizabeth to destroy the evidence, including Worthy and
her vehicle.
The defense disputed any connection between or among defendants or
between or among defendants and Worthy. But witnesses testified at trial, often
with reference to photographs, that Bond and Lewis were cousins and close
friends, that both were acquainted with Harris, and that Harris was acquainted
with Torres. One witness in particular, Sean Williams, testified that he
encountered Lewis, a family friend, at a party in Irvington three days prior to
the crimes; at that time, Lewis asked Williams to steal a four-door vehicle that
he needed to commit a "jux" – a home invasion and robbery – of "one of [Bond's]
bitches." Lewis promised Williams that Bond would compensate him, but
Williams ultimately declined to steal the car Lewis sought.
As for defendants' connection with Worthy, Bond's cousin Terron Billups
confirmed that Worthy and Bond had been romantically involved. And Jasmine
Campbell, another girlfriend of Bond's, found Worthy's business card in a black
A-2411-15T3
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leather handbag Bond gave Campbell just hours after Worthy's body was set on
fire. The bag, which was eventually turned over to police, led the investigation
to Bond and then defendants.
The State also relied at trial on CSLI for cell phones attributed to
defendants and to Bond, Lowery, and Worthy, as well as on contemporary call
records for the same phones, to piece together its case. Cell phones function by
connecting to a series of antennae (cell sites) and continuously scan, regardless
of whether the user is actively operating the phone, for the best signal, which
often but not always emanates from the closest cell site. Carpenter, 138 S. Ct.
at 2220-21. A record of the location and time is created each time a phone
connects to a particular site, though the precision of the location data varies on
the size of the geographic area covered by a site and the concentration of sites
nearby. Id. at 2211-12.
A Sprint records custodian testified about CSLI and call records and the
subscriber information for two accounts, one belonging to Worthy and used in
connection with her employment and the other belonging to Lewis. Records
custodians for Verizon Wireless and T-Mobile testified about their records and
subscriber information on accounts belonging, respectively, to Bond and Karima
Rose, who confirmed at trial that Harris was using her phone at that time. An
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AT&T radio frequency engineer identified Torres as the subscriber of one of the
company's accounts in the course of testifying to the records for that account,
and a representative of the Philadelphia County Adult Probation Department
testified, based on the department's records, about the phone number that
Lowery provided to a probation officer who was collecting his basic contact
information.
The AT&T and Sprint engineers were qualified as experts and permitted
to provide opinions about the CSLI information. A representative of the Union
County Prosecutor's Office testified about maps prepared by that office's
Intelligence Unit that plotted the cell sites with which the phone for each account
made connections during the night in question. The individual who created the
maps testified that he prepared them based on CSLI records obtained from the
service providers for the respective phones.
According to call records, Bond contacted Lewis, who then placed three
calls to Harris during the afternoon. During a thirty-minute span beginning at
around 5:30 p.m., while Worthy was at the Newark restaurant, Torres called
Bond, who called Worthy, then Lewis, and then Worthy again. Around 7:00
p.m., both Worthy's and Bond's phones connected with a cell tower near Bond's
Newark residence, supporting an inference that Worthy visited Bond after
A-2411-15T3
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leaving the restaurant. Thirty minutes later, Worthy's phone, along with those
used by Bond, defendants, and Lowery, all connected with that same tower
within a few minutes of one another.
Around 8:00 p.m., when the prosecution claimed the kidnapping occurred,
the phones attributed to Lewis, Lowery, and Worthy began connecting with a
westerly sequence of cell sites between Newark and Green Brook. Partway
there, Worthy's phone abruptly ceased to track with the others and last connected
with a site near the intersection of Interstate 78 and Route 24; her phone was
later recovered by police on the side of the road in that vicinity.
Call records showed that while Lewis and Lowery were traveling with
Worthy to Green Brook, Bond called Campbell – the girlfriend to whom he
ultimately gave Worthy's handbag – several times, initially without success.
Campbell testified that when Bond finally reached her at 8:19 p.m., he asked her
to pick him up at a Newark intersection so she could lend him her car. She
complied, and he left with her vehicle after dropping her off at her residence.
CSLI records demonstrated that, soon thereafter, the phones attributed to Bond,
Harris, and Torres all began connecting with a series of cell towers from Newark
toward Green Brook.
A-2411-15T3
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At about 8:40 p.m., while the other three were on their way, Lewis's and
Lowery's phones connected to a cell site across Route 22 from Jackson's Green
Brook residence. That timing coincided with Jackson's recollection of when he
encountered the masked individual, and briefly preceded his neighbor's phone
call to police. Records confirmed that the neighbor's call was placed at 8:48
p.m. At the same time, phones belonging to Harris, Torres, and Bond were
connecting to cell sites near Watchung, ten minutes' driving distance from
Jackson's home. The same data revealed an abrupt change in direction after the
neighbor's call to police, showing that the phones used by the three began
connecting with an easterly sequence of cell sites back toward Newark. Around
the same time, Lewis's and Lowery's phones connected with a series of sites
headed in the same direction between Green Brook and Newark. Call records
also showed that Lewis and Harris were in constant contact during this period.
CSLI revealed that defendants and their cohorts converged at
approximately 10:15 p.m., when their phones connected with a cell site in
Newark about a mile from where Worthy was found burned inside her car.
Images of the fire were captured on a nearby parking lot's surveillance system;
those images did not reveal the identity of any perpetrator. Afterward,
Shakeerah Scott, the mother of Lewis's child, testified that she picked up Lewis
A-2411-15T3
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and two others at another Newark location; she gave them a ride to Lewis's car.
Bond, meanwhile, returned Campbell's car to her at her house at 12:32 a.m., a
time confirmed by the record of a phone call he placed to her announcing his
arrival. When Campbell went outside to meet Bond, he handed her the car keys
as well as the handbag in which she eventually found Worthy's business card.
Defendants Lewis, Harris and Torres – as well as Bond – were charged
with: first-degree kidnapping, N.J.S.A. 2C:13-1(b); two counts of first-degree
robbery, N.J.S.A. 2C:15-1(a); first-degree felony murder, N.J.S.A. 2C:11-
3(a)(3); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b); and second-degree aggravated arson, N.J.S.A. 2C:17-1(a).
Before trial, defendants moved, pursuant to Miranda v. Arizona, 384 U.S.
436 (1966) and Bruton v. United States, 391 U.S. 123 (1968), to suppress
statements Torres made to police. At the hearing's conclusion, the judge
determined that the statements could be admitted with certain redactions. At the
conclusion of a lengthy trial, defendants were acquitted of the weapons offenses
but convicted of kidnapping, felony murder, arson, and second-degree robbery.1
1
Bond was separately tried and convicted of a similar set of offenses, and we
separately disposed of his appeal. State v. Bond, No. A-2317-14 (App. Div.
Oct. 18, 2017).
A-2411-15T3
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The trial judge denied their motions for judgment of acquittal or, in the
alternative, for a new trial.
Lewis was sentenced to an aggregate life prison term, and Harris and
Torres were both sentenced to aggregate sixty-year terms, all subject to a period
of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendants separately appeal. Lewis argues:
I. DEFENDANT'S CONFRONTATION CLAUSE
RIGHTS WERE VIOLATED BY ADMISSION OF A
NON-TESTIFYING CO-DEFENDANT'S STATE-
MENT TO POLICE.
II. THE TRIAL COURT'S FAILURE TO DECLARE
A HUNG JURY AFTER THE JURY WAS
DEADLOCKED WAS ERROR THAT DENIED
DEFENDANT A FAIR TRIAL.
III. THE IMPROPER ADMISSION OF PHOTOS
SUGGESTED GANG AFFILIATION DEPRIVED
DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
IV. DEFENDANT'S CONVICTIONS MUST BE
VACATED BECAUSE THE STATE FAILED TO
PROVE DEFENDANT'S GUILT BEYOND A
REASONABLE DOUBT.
V. THE PROSECUTOR EXCEEDED FAIR
COMMENT ON THE EVIDENCE, THEREBY
DEPRIVING DEFENDANT OF HIS RIGHT TO A
FAIR TRIAL.
A-2411-15T3
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VI. THE DISSEMINATION OF A PHOTOGRAPH
OF THE DEFENDANT IN HANDCUFFS IN COURT
AT HIS TRIAL DEPRIVED HIM OF A FAIR TRIAL.
VII. DEFENDANT'S LIFE TERM IS MANIFESTLY
EXCESSIVE AND REQUIRES A REMAND FOR
RESENTENCING.
Harris argues:
I. THE TRIAL COURT ERRED IN DENYING [HIS]
MOTION FOR ACQUITTAL OR AT LEAST IN
FAILING TO GRANT [HIS] MOTION FOR A NEW
TRIAL IN LIGHT OF THE CUMULATIVE EFFECT
OF THE TRIAL ERRORS BELOW.
A. The Evidence Against [Harris] Was
Insufficient As A Matter Of Law Or, At
Least, Should Have Been Set Aside As A
Manifest Denial Of Justice.
B. The Photos Suggested Gang Affiliation
For Defendant And Caused Him An Unfair
Trial.
C. Defendant's Confrontation Clause
Rights Were Violated.
D. The Prosecutor Exceeded Fair Com-
ment On The Evidence And, Considering
The At Best Thin Evidentiary Basis For
Defendant's Guilt, Contributed To The
Unfair Trial For Defendant Below.
E. The Trial Judge Should Have Declared
A Hung Jury; The Court's Instruction To
The Jury In Response To The
Announcement Of [A] Deadlock
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Prejudiced Defendant's Right To Fair Jury
Deliberation.
II. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR MISTRIAL
[2]
BECAUSE OF A BRADY VIOLATION.
III. DEFENDANT'S SENTENCE IS IMPROPER
AND EXCESSIVE.
In a pro se supplemental brief, Harris also argues:
I. THE TRIAL COURT'S INSTRUCTIONS
UNCONSTITUTIONALLY RELIEVED THE STATE
OF ITS BURDEN OF PROOF AND/OR SHIFTED
THE BURDEN OF PROOF ON DEFENDANT ON ITS
ACCOMPLICE LIABILITY CHARGE.
II. THE TRIAL COURT ERRED BY FAILING TO
GRANT DEFENDANT'S MOTION FOR AN
ACQUITTAL DUE TO INSUFFICIENT EVIDENCE
TO SUPPORT THE CONVICTIONS.
And Torres argues:
I. THE DEFENDANT'S TWO STATEMENTS TO
THE POLICE SHOULD NOT HAVE BEEN
ADMITTED INTO EVIDENCE BECAUSE HIS
FIFTH AMENDMENT RIGHT AGAINST SELF-
INCRIMINATION WAS VIOLATED.
II. THE TRIAL COURT'S FAILURE TO DECLARE
A HUNG JURY AFTER THE JURY WAS
DEADLOCKED WAS ERROR THAT DENIED
DEFENDANT A FAIR TRIAL.
2
Brady v. Maryland, 373 U.S. 83 (1963).
A-2411-15T3
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III. THE ADMISSION OF STATEMENTS MADE BY
CO-DEFENDANTS LEWIS AND BOND AT TRIAL
UNDER THE CO-CONSPIRATOR EXCEPTION TO
THE HEARSAY RULE WAS ERROR THAT
VIOLATED . . . TORRES['] CONSTITUTIONAL
RIGHT OF CONFRONTATION.
IV. THE ADMISSION OF CERTAIN INFLAM-
MATORY EVIDENCE OVER THE DEFENSE
OBJECTION DEPRIVED DEFENDANT OF A FAIR
TRIAL.
V. THE DISSEMINATION OF A PHOTOGRAPH OF
THE DEFENDANT IN HANDCUFFS IN COURT AT
HIS TRIAL DEPRIVED HIM OF A FAIR TRIAL.
VI. DENIAL OF THE DEFENDANT'S MOTION FOR
NEW TRIAL WAS ERROR.
VII. THE AGGREGATE SENTENCE IMPOSED
UPON THE DEFENDANT OF SIXTY (60) YEARS
WITH THIRTY (30) YEARS OF PAROLE
INELIGIBILITY WAS EXCESSIVE AND SHOULD
BE MODIFIED AND REDUCED.
VIII. THE AGGREGATE ERRORS DENIED
DEFENDANT A FAIR TRIAL.
After all briefs were filed, each defendant wrote to the court – pursuant to
Rule 2:6-11(d) – to argue that Carpenter, which was decided after their
convictions but while this appeal was pending, necessitates a remand so the trial
court may decide whether the use of CSLI at trial violated their Fourth
Amendment rights.
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For the reasons that follow, we reject: (1) defendants' arguments that
Carpenter requires a remand; (2) Torres's argument that the admission of
statements he gave police violated his right against self-incrimination; (3)
defendants' arguments that the admission of certain statements – Torres's
statements, a statement made by Lewis, and another made by an alleged co -
conspirator – violated their right to confront adverse witnesses at trial; (4)
defendants' arguments that their right to a fair trial was impaired by the judge's
decision not to declare a hung jury; (5) defendants' arguments that the admission
of certain evidence and photographs suggested a gang affiliation and deprived
them of a fair trial; (6) defendants' arguments that the evidence was insufficient
to convict; (7) defendants Lewis and Torres's arguments that they were deprived
of a fair trial because of the dissemination on social media of a photograph of
them in handcuffs; (8) defendant Harris's argument that the judge abused his
discretion in denying his motion for a mistrial because of an alleged Brady
violation; (9) defendants Lewis and Harris's arguments that the prosecutor
exceeded the bounds of advocacy during his summation; (10) defendant Harris's
pro se argument that the judge's instructions shifted the burden of persuasion to
him on accomplice liability; (11) all defendants' arguments that the cumulative
A-2411-15T3
15
effect of errors warrant either a judgment of acquittal or a new trial; and (12) all
defendants' arguments that they received excessive sentences.
I
As noted above, because Carpenter was decided not only long after
defendants' lengthy trial that started on February 25 and ended on May 20, 2015,
but also well after the parties filed their appellate briefs, defendants did not raise
the application of Carpenter – or the issues considered by the Court in Carpenter
– until they filed their Rule 2:6-11(d) letters shortly after Carpenter was decided.
Carpenter held that the Fourth Amendment encompasses a government's attempt
to seek CSLI from third parties possessing such information because individuals
possess a reasonable expectation of privacy in their physical movements as
captured in CSLI. Carpenter, 138 S. Ct. at 2209-10. In response, the State
argues there was no Carpenter violation because the State secured court orders
– what it claims are the equivalent of search warrants – that approved the seizure
of this information.
We decline to consider this untimely contention. To be sure, Carpenter
was decided after this case was tried and during the pendency of these appeals.
But by the time these defendants were tried, our Supreme Court had already
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recognized a reasonable expectation of privacy and established a warrant
requirement for similar information in State v. Earls, 214 N.J. 564, 584 (2013).
Moreover, defendants never sought the suppression of the CSLI used at their
trial, never objected to its admission, and, so, we are presented with no factual
record by which to examine whether the principles upon which Carpenter was
based were violated by the State's securing of this information. We conclude
that the search and seizure issues that defendants raise for the first time on appeal
were not properly preserved for appellate review. State v. Robinson, 200 N.J.
1, 20-22 (2009).
II
Torres argues the trial judge infringed his right against self-incrimination
by admitting into evidence statements he gave police during two interviews.
Torres has not asserted what part of the statements were of concern to him. In
reviewing the statements, we note that Torres largely denied knowing
defendants or the victim or claimed he had never been in Newark. He did,
however, acknowledge ownership and primary use of a cellphone and he
identified his service provider.
An accused enjoys a right against self-incrimination that is guaranteed
both as a federal matter by the Fifth and Fourteenth Amendments, Malloy v.
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Hogan, 378 U.S. 1, 6 (1964), and as a state matter by our common law and
evidence rules, State v. Hartley, 103 N.J. 252, 260 (1986). In light of the
inherently coercive nature of a custodial interrogation, an accused must be
advised of the right to remain silent, that any statement may be used against the
accused, and that the accused has the right to an attorney. Miranda, 384 U.S. at
444. An accused's invocation of those rights must be "scrupulously honored."
Michigan v. Mosley, 423 U.S. 96, 103 (1975).
A trial court may not admit any incriminating statement the accused may
make in the context of such an interrogation unless the accused was duly advised
of and validly waived those rights prior to making the statement. Miranda, 384
U.S. at 444-45. The prosecution must prove the predicates for admission beyond
a reasonable doubt and must establish any purported waiver was knowing,
voluntary, and intelligent. State v. Presha, 163 N.J. 304, 313 (2000). Whether
a purported waiver meets those criteria depends on
the totality of the circumstances, including both the
characteristics of the defendant and the nature of the
interrogation. Relevant factors to be considered
include the suspect's age, education and intelligence,
advice concerning constitutional rights, length of
detention, whether the questioning was repeated and
prolonged in nature, and whether physical punishment
and mental exhaustion were involved.
[State v. Galloway, 133 N.J. 631, 654 (1993).]
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At times, uncertainties arise as to whether an interview constitutes a
custodial interrogation. According to the Supreme Court, a custodial
interrogation is any "questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his freedom of
action in any significant way." Miranda, 384 U.S. at 444. There need not be a
formal arrest or physical restraint, and the interrogation need not occur at a
police station. State v. P.Z., 152 N.J. 86, 103 (1997). Absent a formal arrest,
the "critical determinant of custody is whether there has been a significant
deprivation of the suspect's freedom of action based on the objective
circumstances, including the time and place of the interrogation, the status of
the interrogator, the status of the suspect, and other such factors," ibid., such
that the restraint on the accused's freedom of movement is "of the degree
associated with a formal arrest," California v. Beheler, 463 U.S. 1121, 1125
(1983); accord P.Z., 152 N.J. at 103.
A judge's findings of fact on these questions command our deference when
supported by sufficient credible evidence in the record. State v. Elders, 192 N.J.
224, 242-44 (2007). A judge's conclusions as to matters of law, however, are
not entitled to deference. State v. Shaw, 213 N.J. 398, 411 (2012).
A-2411-15T3
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At the Miranda hearing, the judge heard from a detective present for both
of Torres's statements, as well as from Torres, and the judge reviewed the video
recordings of both interviews. According to the detective, he and a colleague
traveled to Philadelphia to interview Torres for the first time on April 22, 2009,
after learning from a witness that Bond had used Torres's cell phone to call
Worthy's cell phone on the night of the kidnapping and that CSLI records
showed Torres's phone had been in Newark that night.
The two detectives, accompanied by Philadelphia police, visited Torres at
his home, and he voluntarily agreed, albeit grudgingly, to accompany them to
the police department; Torres's mother went along. Torres was informed he was
not under arrest and was being interviewed as a witness for any information
helpful in the investigation into Worthy's death. Torres agreed to be
photographed, and he agreed the interview could be video-recorded, but he
declined to sign a consent form. After a forty-five-minute interview, during
which he provided information about his cellphone, Torres agreed to speak with
the police again if they had any further questions. He then left the station freely.
On May 20, 2009, the detective and another officer, accompanied by
Philadelphia police, again visited Torres at his home. Again, Torres grudgingly
agreed to accompany them to the police department for another interview. He
A-2411-15T3
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was neither arrested nor charged with any offenses in connection with the
homicide, but he was informed of his Miranda rights and presented with a form.
He told the detective he understood his rights, but he declined to sign the form,
explaining he didn't want to make a "statement," a word used on the form. When
told by the detective that it "wasn't necessarily a statement" but an "interview,"
Torres agreed to be interviewed and to be video-recorded but would not sign the
consent form.
During the course of the interview that followed, Torres stated at one point
that he had "nothing to say." The detectives inquired whether he wanted to
continue the conversation, and he assured them that he did. But eventually
Torres made clear that he no longer wished to continue, and the detectives
immediately ceased the interview. Though never explicitly told he was free to
leave, Torres was never placed under arrest nor restrained in any manner. At
the conclusion of the interview, he was permitted to leave and was given a ride
home.
Torres was twenty years old at the time, had a tenth grade education, and
had been arrested on several prior occasions. He testified at the hearing that he
woke up on April 22, 2009, to find more than five police officers downstairs,
others waiting outside, and his mother crying. He persistently refused to go with
A-2411-15T3
21
them for an interview until his mother advised that he "had to go or they were
going to lock [him] up."
Torres recounted that a similar series of events occurred ahead of the May
20, 2009 interview, noting that on this occasion police officers repeatedly
insisted he "ha[d] to go down" to the police station each time he refused.
According to Torres, on neither occasion did he believe he had any choice, nor
did he feel free to leave. He signed no forms and, at the second interview, made
clear he did not want to make a statement.
Based on his observation of the testimony and with the benefit of a review
of the video recordings, the judge credited the detective's version of events over
Torres's. The judge declared he was "satisfied beyond a reasonable doubt" that
both statements were voluntarily given, noting that Torres was not in custody
and that the record did not support a claim that Torres's will had been overborne.
The judge held that Miranda warnings were not required on either occasion, but,
even so, a Miranda warning was given on the second occasion, as was evident
from the video recordings. The judge therefore determined that the statements
were admissible subject to any redaction required by Bruton, 391 U.S. at 123.
Although the judge's ruling, as he acknowledged, was somewhat
"perfunctory," Torres does not argue that the judge failed to render sufficient
A-2411-15T3
22
findings; he instead argues that the judge drew the wrong conclusion from the
evidence. Torres contends that, on both occasions, a large police presence
arrived at his home and brought him to the station, that he was interviewed by
multiple officers, and that he was video-recorded despite his refusal to sign the
consent form. On the first occasion, he emphasizes that he was given no
Miranda warning at all and was told he was only being interviewed as a witness,
yet he was questioned about information that became significant evidence
against him at trial in an interrogation that was clearly designed or likely to elicit
incriminating responses.
Torres acknowledges that warnings were given on the second occasion but
asserts that he told the detectives several times that he did not wish to make a
statement and that the police disregarded his "attempt to end the interrogation,"
and pressed him to continue, insisting that it was not a "statement" and
reminding him that he was not under arrest. He further argues, given this
evidence's significance in the context of a highly circumstantial case, that
admission of his statements clearly caused prejudice. Again, Torres doesn't
argue how he was prejudiced – because he has not referred us to those parts of
the statement that caused prejudice – but we assume his concern regarded
statements he made about his cellphone.
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We find no merit in Torres's arguments. The judge found the detective
reliable. And, while the detective acknowledged Torres was never explicitly
advised of his right to leave, that Torres refused to sign any of the forms, and
that he expressed on the second occasion that he did not want to make a
"statement," Torres was explicitly advised each time he was not under arrest,
Torres indicated his consent to the video recordings even though he refused to
sign the forms, and on the second occasion acknowledged he understood his
rights. He left freely after both interviews and ended the second himself by
stating he no longer wished to talk, a request the detectives immediately
honored, and one that would not likely have been made had he sincerely felt
coerced. Considered in light of Torres's familiarity with the criminal justice
system, and with the benefit of a review of the video recordings, the judge was
entitled to conclude from the totality of the circumstances that Torres's
statements were voluntary and there was no restraint to his freedom of
movement that would have rendered the interviews custodial interrogations i n
the first place. Though the record was not one-sided, the testimony and evidence
the judge found reliable was sufficient to support his findings, which are
therefore entitled to deference on appeal. Elders, 192 N.J. at 242-44.
A-2411-15T3
24
III
All defendants argue the admission of certain out-of-court statements
deprived them of their right to confrontation: (a) Lewis and Harris challenge the
admission of Torres's statements that were discussed in Section II of this
opinion; (b) Harris also takes issue with the admission of a statement Lowery
made to a parole officer; and (c) Torres quarrels with the admission of
statements Lewis and Bond made to third parties. We find no merit in these
arguments.
A
Criminal defendants enjoy coextensive federal and state constitutional
rights to confrontation of any witnesses called to testify against them. State v.
Roach, 219 N.J. 58, 74 (2014). This constitutional protection, however,
excludes only those out-of-court statements that are "testimonial," Crawford v.
Washington, 541 U.S. 36, 68 (2004), which, as pertinent here, include at least
those statements that are the "product of police interrogation," State v. Cabbell,
207 N.J. 311, 329 (2011). Statements given to police qualify as testimonial if
the surrounding "circumstances objectively indicat[e] that . . . the primary
purpose of the interrogation is to establish or prove past events potentially
A-2411-15T3
25
relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822
(2006). Hearsay that is non-testimonial, on the other hand, may be admitted
without running afoul of these constitutional principles to the extent the
statements fit a recognized exception to the hearsay rule. State v. Weaver, 219
N.J. 131, 151 (2014).
The Confrontation Clause further demands that, in the context of a joint
trial, a non-testifying defendant's confession may not be admitted at trial to the
extent it directly incriminates a co-defendant, even if an appropriate limiting
instruction is given, unless the statement is redacted to exclude all incriminatory
references to the co-defendant. Bruton, 391 U.S. at 126. The same principle,
however, does not apply when a defendant's statement is "'not incriminating [to
the co-defendant] on its face,'" but "linked to the [co-defendant] only through
other evidence." Weaver, 219 N.J. at 153 (quoting Richardson v. Marsh, 481
U.S. 200, 208 (1987)). And a "statement is not facially incriminating merely
because it identifies" a co-defendant. United States v. Angwin, 271 F.3d 786,
796 (9th Cir. 2001), overruled in part on other grounds, United States v. Lopez,
484 F.3d 1186 (9th Cir. 2007). The statement "must also have a sufficiently
devastating or powerful inculpatory impact" for its admission to run afoul of
these constitutional principles. Ibid.A-2411-15T3
26
Lewis and Harris take issue with the admission of Torres's statements to
police in which he neither confessed to the crime nor implicated either of co-
defendant. The critical aspect of the statements in this context was that Torres
acknowledged he was the subscriber and primary user of his cell phone. As
discussed in Section II, the judge admitted the statements subject to considerable
redaction and an appropriate limiting instruction, though the reference to Lewis
and Harris as acquaintances remained. Consequently, Lewis and Harris argue
the admission of this evidence deprived them of their right to confrontation,
emphasizing in particular that the statements were testimonial, they had no
opportunity to cross-examine Torres, and the statements named them directly.
Although correct that the statements were testimonial, their admission
does not run afoul of Crawford principles because the statements were not
admitted against these two defendants, only against Torres. United States v.
Harris, 167 Fed. Appx. 856, 859 (2d Cir. 2006). In that connection, the trial
judge explicitly instructed the jury that, if it found a particular statement had
been made, it could "consider that statement only against the individual who
made the statement." Nor did the admission of the statements run afoul of
Bruton, because they did not directly incriminate any of the defendants on their
face so as to undermine the reliability of the limiting instruction. Weaver, 219
A-2411-15T3
27
N.J. at 153. That they happened to mention Lewis and Harris by name is of no
moment in itself. Angwin, 271 F.3d at 796.
B
Harris challenges the admission of testimony of a representative from the
City of Philadelphia Probation Department that Lowery provided his parole
officer with the number for his cell phone; other evidence in the record revealed
that cell phone had contact with defendants' phones at the time of the crimes.
Following a N.J.R.E. 104 hearing, the judge admitted the evidence via the
business records exception to the hearsay rule, N.J.R.E. 803(c)(6).
Harris does not challenge admissibility on that ground; he instead argues
the record of the phone number incorporated hearsay from both the parole
officer and Lowery that was testimonial in nature and should therefore have been
excluded. We reject this argument; the statements were not testimonial. The
records custodian testified that the phone number was collected and recorded by
the parole officer when gathering Lowery's pedigree information and not for the
purpose of gathering evidence as part of a criminal investigation. So, the
evidence's admission at trial did not violate Crawford principles.
A-2411-15T3
28
C
Torres takes issue with the admission of testimony about a statement Bond
made to a girlfriend asking whether she had spoken to the police and directing
her not to "tell anybody," and statements Lewis made to a girlfriend to convince
her to give him a ride the night of the crimes. The judge concluded all this
evidence was admissible pursuant to the co-conspirator exception to the hearsay
rule, N.J.R.E. 803(b)(5).
Statements made by a co-conspirator are admissible against all conspiracy
members via N.J.R.E. 803(b)(5) if the prosecution establishes: "(1) the statement
was 'made in furtherance of the conspiracy'; (2) the statement was 'made during
the course of the conspiracy'; and (3) there is 'evidence, independent of the
hearsay, of the existence of the conspiracy and [the] defendant's relationship to
it.'" State v. Cagno, 211 N.J. 488, 530 (2012) (quoting State v. Taccetta, 301
N.J. Super. 227, 251 (App. Div. 1997)). Completion of the criminal act does
not preclude a statement made after the act, State v. James, 346 N.J. Super. 441,
458-59 (App. Div. 2002), if the statement serves a "current purpose, such as to
promote cohesiveness, provide reassurance to a co-conspirator, or prompt one
not a member of the conspiracy to respond in a way that furthers the goals of the
conspiracy," Taccetta, 301 N.J. Super. at 253.
A-2411-15T3
29
Torres argues that Bond's and Lewis's statements do not qualify, noting
that they were made after the criminal acts had already been completed, that
there was no evidence to suggest the purported conspiracy included Torres when
the statements were made, and that the statements were not made in furtherance
of a conspiracy. He also claims admission of the statements deprived him of the
right of confrontation because he had no opportunity to cross-examine either
declarant. We disagree.
It is well-established that admission of evidence through the co-
conspirator exception does not transgress the Confrontation Clause. State v.
Savage, 172 N.J. 374, 402 (2002). So, the only question is whether the
statements satisfied that exception. Viewed in context, there is no question that
the statements furthered the conspiracy: in Bond's case to secure a witness's
cooperation, and in Lewis's to facilitate transportation. Torres advances no more
than a bald assertion to the contrary. And it is appropriate to conclude the
statements were made during the course of the conspiracy, notwithstanding the
fact that the homicide had already occurred, because they were made to escape
detection. Moreover, cell phone location data as well as witness testimony as to
the connections between and among defendants and their similar movements to
certain locations during certain critical timeframes on the evening in question
A-2411-15T3
30
provided evidence of a conspiracy independent of these statements. It follows
that the judge's decision to admit the statements fell well within his discretion.
See State v. Prall, 231 N.J. 567, 580 (2018).
IV
Defendants next contend the judge infringed their right to a fair trial by
refusing to declare a mistrial after the deliberating jury announced an impasse
and, also, by giving the jury what defendants believe was an inappropriately
coercive instruction to continue deliberating.
The record reveals that on the fourth day of deliberations the jury sent the
judge a note advising that "[a]s of now we are deadlocked and we do not foresee
a unanimous decision to be in agreement on any count for any of the three
defendants." They asked the judge, "[h]ow would you like us to proceed?" All
defendants sought a mistrial but the judge denied those requests in light of the
relatively brief time the jurors had deliberated; the judge directed the jury to
continue to deliberate, explaining:
Ladies and gentlemen, we started jury selection in this
case on January 6th of this year. We went through 27
days of trial testimony. We had over a month of jury
selection. We've called 56 witnesses. You have had
the case since May 7th. But over that period of time,
you've only had -- excluding lunch periods, excluding
periods of time for read back, you've only had the case
A-2411-15T3
31
for ten or so hours. Given the amount of time, the
complexity of the case, I'm not willing to accept that
decision at this point in time.
I want you to return to the jury room and continue your
deliberations with the following proviso that it is your
duty, as jurors, to consult with one another and to
deliberate with a view to reaching an agreement, if you
can do so without violence to individual judgment.
Each of you must decide the case for yourself, but do
so only after an impartial consideration of the evidence
with your fellow jurors. In the course of your
deliberations, do not hesitate to reexamine your own
views and to change your opinion if convinced it is
erroneous. But do not surrender your honest conviction
as to the weight or effect of the evidence solely because
of the opinion of . . . your fellow jurors, or for the mere
purpose of returning a verdict. Remember, you are not
partisans. You are judges, judges of the facts. And
with that proviso, I ask you to return to the jury room
and continue your deliberations.
Defendants focused on the judge's comment that he was "not willing to accept"
the jury's claim of a deadlock. Defendants raised the issue again when moving
for a new trial prior to sentencing.
Defendants argue now that the judge was bound to declare a mistrial,
noting that the jury's message was unambiguous about a deadlock and the jury
had already reached its fourth day of deliberations. The judge compounded the
error, they argue, by expressing within the ordinary supplemental charge his
unwillingness to accept a hung jury and by referring to the considerable length
A-2411-15T3
32
of the trial. They contend the jurors would reasonably understand the judge's
comments as admonishing that they would abdicate their responsibilities if they
failed to reach a verdict, and that the judge would force deliberations to continue
indefinitely until a verdict was reached. In short, defendants assert the charge
was coercive, undermined the integrity of the verdict, and deprived them of a
fair trial. We reject this argument.
To be sure, criminal defendants enjoy both a state and federal
constitutional right to trial by a fair and impartial jury, State v. Valenzuela, 136
N.J. 458, 467-68 (1994), at the core of which is the right to a "free and
untrammeled verdict," State v. Czachor, 82 N.J. 392, 400 (1980). Because the
deliberative process is integral to a jury's fact-finding responsibilities, a judge
must ensure its "insulation" from any "influences that could warp or undermine
the jury's deliberations and its ultimate determination." State v. Corsaro, 107
N.J. 339, 346 (1987). That includes any influence from the court itself. State
v. Shomo, 129 N.J. 248, 257 (1992).
When a jury declares an impasse, a judge should ordinarily "inquire . . .
whether further deliberation will likely result in a verdict." Valenzuela, 136 N.J.
at 469. If the judge concludes, in light of the "length and complexity of trial and
the quality and duration of the jury's deliberations," Czachor, 82 N.J. at 407, that
A-2411-15T3
33
the "difference of opinion between [its] members . . . is clearly intractable," it
should declare a mistrial, Valenzuela, 136 N.J. at 469. But, if those
circumstances have not been demonstrated, the judge may instruct the jury to
continue its deliberations. State v. Ross, 218 N.J. 130, 144-45 (2014). In short,
judges are vested with broad discretion in such situations, and appellate courts
will intercede only when able to conclude the judge abused that discretion. State
v. Paige, 256 N.J. Super. 362, 381 (App. Div. 1992). We are satisfied the judge
soundly exercised his discretion. Considering the extraordinary leng th of time
in both selecting a jury and eliciting evidence and testimony from dozens of
witnesses, the judge was entitled to deem that ten hours of deliberations were
insufficient to conclude, even from the jurors' perception that they were
deadlocked, that a mistrial was the only proper course.
Of course, in sending the jury back to further deliberate, a judge's
instructions must not be coercive or otherwise improperly influence dissenting
jurors to change their votes for the sake of a verdict. State v. Figueroa, 190 N.J.
219, 238 (2007). Errors that "impact substantially and directly on fundamental
procedural safeguards, and particularly upon the sensitive process of jury
deliberations, are not amenable to harmless error rehabilitation." Czachor, 82
N.J. at 404.
A-2411-15T3
34
The remarks defendants question were neither inaccurate nor coercive
when considered in their context. The judge mentioned the length of time spent
on the trial, but only to explain that the time jurors had deliberated was brief by
comparison. Nor could the judge's comments be reasonably understood to
express an abject unwillingness to ever accept a hung jury, as defendants assert.
The judge communicated only an unwillingness to accept that result "at th[at]
point in time." And any concern defendants raise that dissenting jurors might
have been pressured to surrender honest convictions for the sake of reaching a
verdict is belied by the judge's delivery of a slightly modified version of the
standard charge, which carefully reminded jurors not to do so.
We conclude the judge did not abuse his discretion either in declining to
grant a mistrial or in the manner he instructed the jury to continue deliberations.
V
All defendants argue the judge abused his discretion and deprived them of
a fair trial by permitting admission of redacted "gang" photographs featuring
Harris and Torres, among others. Torres also contends the admission of
references to the gang "B-Block" and to Lowery had the same effect.
Generally, our evidence rules permit the admission of all relevant
evidence – evidence having a "tendency in reason to prove or disprove any fact
A-2411-15T3
35
of consequence to the determination of the action," N.J.R.E. 401 – unless
excluded by other rules. State v. Scharf, 225 N.J. 547, 568-69 (2016). The
argument here focuses on whether this relevant evidence should have been
excluded because "its probative value [was] substantially outweighed by the risk
of . . . undue prejudice." N.J.R.E. 403(a). Such a determination rests within a
trial judge's broad discretion, State v. Sands, 76 N.J. 127, 144 (1978), and will
not be disturbed unless "so wide of the mark that a manifest denial of justice
resulted," State v. Cole, 229 N.J. 430, 449, 453 (2017).
Defendants challenge the admission of four group photographs obtained
from MySpace that were introduced to establish a familiarity among those
identified in the pictures. Lewis does not appear in any of the photographs, but
Harris and Torres were among those pictured in the first, second, and fourth;
Torres appears in the third, along with Bond's cousin. One bone of contention
at trial was the fact that in the first three photographs, several pictured
individuals were making middle-finger gestures – Harris made that gesture in
the second photograph – and others were making different hand gestures of
unidentified significance in the second and third. One person in the first
photograph had a red bandanna hanging out of his pocket, while someone in the
A-2411-15T3
36
third had a bandanna of the same color tied around his wrist. The fourth
photograph included none of these elements.
Defendants objected to admission of all of the photographs, requesting a
redaction that would remove the bandannas, hand gestures, and any individuals
aside from those involved in this case so the jury would not speculate that
defendants or those with whom they associated were gang members. The State
agreed to eliminate the bandannas, but the judge admitted the exhibit with no
further redaction, reasoning that none of the hand gestures was suggestive of
gang affiliation absent expert testimony to that effect, and reasoning further that
the photographs were not otherwise so prejudicial as to warrant exclusion.
Torres complains about another set of group photographs, also obtained from
MySpace and introduced for the same purpose. These photos were similarly
redacted.
Defendants contend that, even in redacted form, the photographs
suggested defendants were Bloods members or, at best, associated with members
of the Bloods, and assert that this undue prejudice clearly outweighed the
photographs' limited probative value. Lewis acknowledges he was not in any of
the photographs, but nonetheless believes the evidence tarnished his defense
through "guilt by association." Lewis and Harris add that, because of the gang-
A-2411-15T3
37
affiliation prejudice that they believe accompanied these photographs, their
admission should have been evaluated pursuant to N.J.R.E. 404(b), which limits
the prosecution's use of other-crimes evidence.
We agree evidence of gang membership must be evaluated through a
N.J.R.E. 404(b) analysis. See State v. Cofield, 127 N.J. 328, 338 (1992); State
v. Goodman, 415 N.J. Super. 210, 227-28 (App. Div. 2010). But that argument
was never asserted at trial and the photographs were never introduced to show
gang affiliation. Moreover, they were redacted specifically to remove the red
bandannas and a sign mentioning "B-Block," the only obvious indicia of that
affiliation, as well as the hand gestures mimicking holding a gun and the picture
on the t-shirt, the only portions obviously suggestive of violence.
That is not to say that the redacted photographs are otherwise sterile.
Many of them, for example, depicted individuals giving an obscene gesture, but
that gesture is ubiquitous and not unique to gang members. None of the other
unredacted hand gestures had their significance explained by any expert at trial,
so there was no reason to believe a juror would draw an inference that the
individuals depicted were gang members. Defendants have not shown that the
A-2411-15T3
38
judge's rulings were so wide of the mark as to justify reversal. Cole, 229 N.J. at
453.3
VI
Defendants next argue the evidence was insufficient to sustain their
convictions. Lewis and Harris specifically contend they were entitled to a
judgment of acquittal because the record was inadequate to establish proof of
their guilt beyond a reasonable doubt, particularly when – as they have argued
here – numerous errors were committed. Harris and Torres argue that they
should at least have been granted a new trial for this reason.
On a Rule 3:18-1 motion for judgment of acquittal, a trial judge must
determine "'whether, viewing the State's evidence in its entirety . . . and giving
the State the benefit of all its favorable testimony as well as all of the favorable
3
To the extent Torres asserts that references to "B-Block" and Lowery were
clearly prejudicial and irrelevant, he is only half-correct and only as to the first
respect because the judge ordered that "B-Block" be redacted at every mention
from Torres's statement. And, although all required redactions were made to the
transcript, only one single mention was inadvertently left in the video recording
played to the jury. That reference was fleeting and there was no testimony in
the record that would explain to the jury what the term meant, so we conclude
no prejudice could result from it. The judge was well within his discretion in
denying Torres's motion for a mistrial. As to the other part of Torres's argument,
references to Lowery were clearly relevant because Lowery was the subscriber
of the phone that Bond used on the night of the crimes and with which Lewis
had contact.
A-2411-15T3
39
inferences which reasonably could be drawn therefrom, a reasonable jury could
find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406
(2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)). We apply the same
standard when reviewing the disposition of such a motion. State v. Josephs, 174
N.J. 44, 81 (2002).
When Rule 3:20-1 is invoked, a judge may grant a new trial "in the interest
of justice" but must not "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." A judge's decision on
such an application is discretionary and entitled to great deference. State v.
Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004). So, even though essentially
the same standard – whether there was a manifest denial of justice – is applied
on appeal, the reviewing court must "weigh[] heavily" the judge's "views of
credibility of witnesses, their demeanor, and [the judge's] general 'feel of the
case.'" State v. Sims, 65 N.J. 359, 373 (1974); accord State v. Brown, 118 N.J.
595, 604 (1990).
Defendants argue the judge erred in denying their motions at the close of
the prosecution's case and later, after the verdict but before sentencing, because,
A-2411-15T3
40
in their view, the record was simply insufficient to support their convictions.
They emphasize that all of the evidence was circumstantial and that the bulk of
it was simply data, which, at best, inexactly established their locations at certain
times. There were, they argue, no witnesses, no physical evidence, and no other
direct evidence to establish either their intentional participation in these crimes
or their precise roles or involvement. Indeed, Harris asserts that even the State's
evidence confirms he was not in the car when Worthy was brought to Green
Brook. He and Torres also contend that if a judgment of acquittal was
unwarranted they should nonetheless have been given a new trial.
We reject these arguments. The significance of CSLI to this case was not
that it ambiguously placed defendants at approximate locations at any one
particular time, but that it demonstrated the unusual coincidence of their
locations and directions of travel throughout the extended period during which
this sequence of crimes occurred and during which call records revealed they
remained in contact with one another. Harris and Lewis remained in frequent
contact throughout, and Lewis and Torres were both in contact with Bond just
before the kidnapping. CSLI then showed that all three converged in the vicinity
of Bond's home at the same time Worthy was there, and that the two sets of
cohorts separately made their way west toward Green Brook and then suddenly
A-2411-15T3
41
east back toward Newark after Jackson encountered the masked individual in
Worthy's car. Though Harris and Torres failed to reach Green Brook by that
time, a cell cite across the highway from Jackson's home placed Lewis there
right in time for the encounter.
Harris is correct that the evidence showed he was not in the car with
Worthy when she was driven to Green Brook. But he ignores that CSLI revealed
he was proceeding in the same direction from the same starting point near Bond's
home, that he abruptly changed directions at the time Jackson's neighbor called
the police, and that he ended up in Elizabeth where Worthy's body was later
found. The same can be said for Torres, whose phone followed the same
approximate path. And so did that of Bond, whose gift of Worthy's handbag to
Campbell ultimately steered the criminal investigation in defendants' direction.
Harris asserts in his pro se brief that the State failed to establish even that
he was the user of the phone attributed to him because evidence showed several
calls from that phone were likely placed by Bond. But Billups testified that he
communicated with both Harris and Bond on that phone, and Rose, the
subscriber on that phone's account, unequivocally testified that Harris was the
phone's user when the crimes occurred. Lastly, insofar as Harris points out that
Campbell never identified him as one of the individuals with Bond when she
A-2411-15T3
42
lent Bond her car, and that Scott never identified him as one of those she picked
up with Lewis later that night, neither fact, even taken at face value, undermines
the evidence we have already summarized to a degree that would call into
question the integrity of the jury's verdict.
In short, the evidence may have been circumstantial and perhaps not
overwhelming, but the evidence was sufficient to permit a rational juror to find
guilt as to each defendant beyond a reasonable doubt. The judge, therefore, did
not err in denying the motions for judgment of acquittal or for a new trial.
VII
Lewis and Torres next contend they were deprived of a fair trial as a
consequence of the purported online dissemination of a photograph of Harris
and Torres at trial in handcuffs.
Integral to a criminal defendant's constitutional right to trial by an
impartial jury is the requirement "that the jury's verdict be based on evidence
received in open court, not from outside sources." Sheppard v. Maxwell, 384
U.S. 333, 351 (1966). When prejudicial mid-trial publicity "threatens the
fairness and integrity of a defendant's trial," the "procedure of questioning an
A-2411-15T3
43
impaneled jury . . . should not be invoked begrudgingly." State v. Bey, 112 N.J.
45, 89 (1988).
When ascertaining whether voir dire is appropriate, a judge must
"examine the information disseminated to determine if it has the capacity to
prejudice the defendant," and, if so, the judge must then consider whether "there
is a realistic possibility that such information may have reached one or more of
the jurors" in light of the "extent, notoriety, and prominence" of the publicity.
Id. at 84, 86. Our courts have long recognized that prejudice may result from a
defendant's appearance before a jury in restraints, State v. Artwell, 177 N.J. 526,
534 (2003), so it follows that a photograph seen by jurors depicting that
circumstance may likewise cause prejudice.
At least as far as is evident from the record, the photograph at issue here
was discussed and the issue resolved entirely in the course of the following brief
exchange approximately halfway through the lengthy trial:
THE COURT: All right. Counsel, before we started the
proceedings today, Mr. Hinrichs brought to my
attention an issue that may have occurred yesterday in
court. He represented that his client's mother advised
him that S[hy]eisa Robichaw had placed on her
Instagram account a photograph of Mr. Harris and Mr.
Torres being taken from court, outside the presence of
the jury at the close of the day, in handcuffs. And that
Instagram account picture had been taken and placed on
A-2411-15T3
44
various other Instagram accounts, and it is proliferating
in the Internet as we speak.
MR. HINRICHS [Counsel for Torres]: That's my
understanding. I did not see it personally, but that's
what I was told.
THE COURT: Mr. Liguori, you'd like to be heard?
MR. LIGUORI [Counsel for Harris]: Well, Judge, I'm
concerned about that my client is going to be seen and
possibly be seen by these jurors. I don't know if they
frequent Instagram, and I have no idea how Instagram
works frankly. But I think what might be appropriate
is some re-instruction to the jury that, you know,
throughout the course of the trial, they should not
consult social media, they should not, you know -- the
instruction you've already given about that maybe
should be regiven at this time.
THE COURT: All right. That's the instruction given
at the first break. I'll do it again at the conclusion of
the case, but I will also give it to them now.
As promised, when the jurors returned to the courtroom, the judge reminded
them not to:
talk about this case among yourselves, don't listen to
anyone else. That's my standard instruction. . . . But I
also wanted to let you know that you're not to read or
have anyone read to you any newspaper accounts or
search the Internet for any media accounts about this
trial or have anyone read to you or search the Internet
for any blogs, tweets, Face Book pages, Instagram.
What other social media things do I use to spy on my
son? Face Book, Instagram, Pinterest. Don't go on the
Internet and look for anything about this case or anyone
A-2411-15T3
45
connected to this case. And that's just a continuing
instruction that we have.
Both Lewis and Torres now argue that the judge had an obligation to
question the jurors as to their knowledge of the purported photograph and, if
seen by a juror, grant a mistrial. They assert that the judge's failure to take that
step deprived them of a fair trial, reasoning that, in the context of this heavily
circumstantial case, any prejudice from the photograph would have undermined
their rights to an impartial jury and negated the presumption of innocence.
We find no merit in this argument. The photograph's existence and what
it depicted, if it did exist, were conjecture and a matter of hearsay. Torres's
counsel admitted he had not seen the photograph and only learned of it from his
client's mother, who had apparently found it on the social media account of a
witness that none of the ultimately impaneled jurors acknowledged having
known during voir dire. Counsel represented he was told that the photograph
had proliferated beyond that account, but without specifying the extent – and
defendants having never presented a copy of the photograph either in the trial
court or on appeal so that it could be subject to evaluation for any actual
prejudice – the claim of prejudice in failing to voir dire jurors about the
photograph is without merit.
A-2411-15T3
46
We would also add that Lewis fails to explain how the proliferation of
such a photograph could have prejudiced him, let alone "completely obliterated"
his right to a fair trial, if he was not depicted. His arguments on appeal suggest
he was depicted, but, if that was the case, it was never brought to the attention
of the trial judge. Moreover, neither his counsel nor Torres's ever requested that
the jury be subjected to voir dire as to their knowledge of the photograph. It
was Harris's counsel who suggested that the jury merely be reminded of its
obligation not to consult social media during the trial, and the other defendants'
attorneys acquiesced.
Arguably, the invited error doctrine might have application here, see State
v. Corsaro, 107 N.J. 339, 345 (1987), but we see no error at all. A decision
whether or in what manner to conduct voir dire in such a circumstance is subject
to review on appeal only for an abuse of discretion. State v. R.D., 169 N.J. 551,
559-60 (2001). The judge did not abuse his discretion in declining to
unilaterally conduct a voir dire of jurors as to whether they saw on social media
a photograph whose existence was speculative, notwithstanding that they had
already been instructed not to visit social media at all and should be presumed
to have followed that instruction. State v. Loftin, 146 N.J. 295, 390 (1996).
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VIII
Harris argues that the judge erred in failing to grant a mistrial to remedy
the prosecutor's failure to timely disclose a statement that Rose, Harris's cousin,
gave to police.
In the interest of guaranteeing fair and just trials and promoting the search
for truth, our court rules generally provide criminal defendants with broad pre -
trial discovery. State v. Scoles, 214 N.J. 236, 251-52 (2013). They entitle an
accused to the automatic discovery of any evidence the State gathers to support
its charges, id. at 252, and require that the State promptly furnish copies or
permit inspection of any such evidence, particularly if it is exculpatory, R. 3:13-
3(a)(2), (b)(1). The State has an obligation – beyond the rules themselves – to
disclose any evidence that is material and favorable to the defense pursuant to
Brady, 373 U.S. at 87, as a matter of due process.
To establish a violation of that obligation, a defendant must demonstrate
that "(1) the prosecutor failed to disclose . . . evidence, (2) the evidence was of
a favorable character to the defendant, and (3) the evidence was material" to the
outcome of the case. State v. Parsons, 341 N.J. Super. 448, 454 (App. Div.
2001). Evidence that is not directly exculpatory in itself but that has value for
impeachment purposes satisfies the standard. State v. Nash, 212 N.J. 518, 544
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(2013). Moreover, where "no request is made by the defendant or only a general
request is made, information not revealed by the prosecutor will be considered
material only if 'the omitted evidence creates a reasonable doubt that did not
otherwise exist. . . .'" State v. Carter, 91 N.J. 86, 112 (1982) (quoting United
States v. Agurs, 427 U.S. 97, 112 (1976)).
A judge's determination whether evidence is subject to disclosure under
Brady presents a mixed question of law and fact. State v. Marshall, 148 N.J. 89,
185 (1997). A judge's legal conclusions will be subject to de novo review, while
underlying findings of fact will be disturbed only if clearly erroneous. United
States v. Pelullo, 14 F.3d 881, 886 (3d Cir. 1994).
The evidence at issue here is a statement that Rose gave to the prosecution
on March 6, 2015, just after the trial began and a week before her anticipated
testimony. Harris was not immediately advised and did not learn of the
statement until Rose's direct examination on March 12, 2015, after she testified
that she had lent her phone to "quite a few" other individuals in addition to
defendant and could not recall the precise time frames she did so. The State's
attempt to confront her with the transcript of a contrary statement she gave to
police on April 29, 2009, prompted the following exchange:
Q. Have you ever talked to the police regarding your
cellphone?
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A. Uh, to my recollection, I don't know what I talked
to police about. I told you in 2008 I used to be under
the influence at all times.
Q. On April 29, 2009, did you talk to a police
investigator regarding your cellphone?
A. You all said I did. I don't know. I don't remember.
Q. Have you had an opportunity to review a transcript
of --
A. Like I said to you . . . and I'm saying it again, that
transcript is a bunch of crap. In 2008, I can't remember
two weeks ago. How I'm supposed to remember 2008?
[(Emphasis added).]
Because Rose suggested she had spoken to the prosecution about her condition
and the quality of the transcript of the April 2009 interview outside the context
of any statement already disclosed to the defense, Harris's counsel immediately
objected and moved for a mistrial on Brady grounds.
An assistant prosecutor acknowledged that Rose said just before
proceedings began that day that she did not want to testify, that the transcript
was a "piece of crap," and that she was under the influence at the time of the
interview. The judge excused the jury and held a hearing during which Rose
confirmed she made those remarks earlier that day. She further testified that she
made the same remarks, at least with respect to the quality of the transcript and
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her being under the influence, to another assistant prosecutor and a detective on
March 6, 2015, the first time she was shown the transcript.
The detective Rose identified, however, testified at the hearing that Rose
left after the assistant prosecutor reviewed the transcript of her statement with
her and could not recall her mentioning anything about being intoxicated when
she gave the statement. Another detective present at the same meeting recalled
hearing Rose say, "this is bullshit, I have no involvement, I'm not a witness to
anything"; he could not recall her mention anything about being under the
influence.
To the extent Rose's recollection of events contrasted with that of the two
detectives, the judge credited the detectives' versions and found, based on their
testimony and the assistant prosecutor's consistent representations, that Rose
had at most told them she was reluctant to testify. That did not, the judge
concluded, constitute evidence covered by Brady and so did not warrant a
mistrial. Nonetheless, given that the issue of Rose's possible substance abuse
came to light, and believing it was relevant to her credibility, the judge ordered
that Rose be excused for the time being. She was not called to testify for at least
two weeks to allow time for investigation of the matter. Rose was recalled to
the stand on April 1, 2015, at which point Harris's counsel exercised his
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opportunity to cross-examine her as to whether she had been under the influence
when she gave the statement, and she testified that she had been.
Harris maintains on appeal that he was entitled to a mistrial, asserting that
the claimed violation infringed his right to disclosure and, as a consequence, his
right to a fair trial. He points out that the prosecutor conceded failing to disclose
Rose's statement and Rose, who could have been impeached with the statement,
was crucial to the State's circumstantial case against him. But, even taking
Rose's version of events as to what she said at the March 6, 2015, meeting at
face value – and the judge, as was his prerogative, did not view it that way –
that left an opportunity for disclosure prior to her testimony. The State, of
course, disclosed nothing within that window, but, even if it had been bound to
do so pursuant to Brady, the information at issue was nonetheless brought to
light in a timely enough fashion to eliminate any harm from the State's failure
in that regard. See United States v. Higgs, 713 F.2d 39, 43-44 (3d Cir. 1983)
(recognizing, in similar circumstances, that "[n]o denial of due process occurs"
so long as such "material is disclosed . . . in time for its effective use at trial").
Rose's purported statement came to light early in her initial direct
examination, and defendants were given more than two weeks to investigate the
most pertinent credibility-related evidence therein prior to conducting cross-
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examination. Even if there was anything to the statement that was subject to
mandatory earlier disclosure under Brady, Harris could have suffered no harm
from the State's failure to disclose it, because he learned the information in time
to "effectively use" it for impeachment purposes at trial. Ibid.IX
We also reject the arguments of Lewis and Harris that comments the
prosecutor made during summation were not reasonably supported by the
record, misled the jury as to the facts at issue, and thereby deprived them of a
fair trial.
A prosecutor is "charged not simply with the task of securing victory for
the State but, more fundamentally, with seeing that justice is served." State v.
Reddish, 181 N.J. 553, 641 (2004). Although "afforded considerable leeway"
during summation, "a prosecutor must refrain from improper methods that result
in wrongful conviction." State v. Smith, 167 N.J. 158, 177 (2001). In particular,
prosecutors must confine their comments to "evidence revealed during the trial
and reasonable inferences to be drawn from that evidence." Id. at 178.
Yet "'not every deviation from the legal prescriptions governing
prosecutorial conduct' requires reversal." State v. Jackson, 211 N.J. 394, 408-
09 (2012) (quoting State v. Williams, 113 N.J. 393, 452 (1988)). A reviewing
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court evaluates challenged remarks not in isolation but in the context of the
summation as a whole. State v. Atwater, 400 N.J. Super. 319, 335 (App. Div.
2008) (citing Carter, 91 N.J. at 105). Reversal is warranted only when the
remarks are "clearly and unmistakably improper" and when the remarks
"substantially prejudice" the accused's right to a fair evaluation of the evidence.
State v. Harris, 181 N.J. 391, 495 (2004); see also State v. Ingram, 196 N.J. 23,
42 (2008). In evaluating the remarks, a reviewing court should consider "(1)
whether defense counsel made timely and proper objections to the improper
remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the
court ordered the remarks stricken from the record and instructed the jury to
disregard them." Smith, 167 N.J. at 182.
In their appeals, Lewis and Harris complain of the prosecutor's following
remarks about the significance of the numbers in cell phone records showing
calls between the phones attributed to the two:
Interesting thing about the Robert Harris calls . . . .
[T]hat 1 (267) in front of the numbers in the Sprint
records show that that's a call that you have in your
contacts. That call is saved in your contacts. So all
those obsessive calls, those 20 consecutive calls from
Mr. Lewis' telephone, those are all calls to someone
who he's close enough to have in his contacts. That's
one of his personal contacts.
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Alluding to other remarks the prosecutor already made about calls from the same
phone to Lewis's fiancé and other friends and relatives, the prosecutor argued
that this coincidence of contacts revealed that Lewis was the individual who had
used the phone when the crimes were committed.
Harris and Lewis both objected, asserting that Harris was not listed in
Lewis's contacts and that there had been no testimony about the significance of
the prefixes in the call records that would suggest otherwise. The prosecutor
responded that he remembered testimony from a T-Mobile representative to
precisely that effect, and though the judge did not share that recollection, he
concluded that, if on review of the record, no such testimony could be found, he
would entertain a motion to strike the challenged remarks before the jury b egan
deliberations. In the interim, the judge reminded the jury that, "with respect to
the prosecutor's comments regarding the dialed digit and 1 followed by 267,
[whether] that indicates that is a number that is in someone's contacts, you'll
have to rely on your recollection of the evidence as to what was testified in that
regard."
Lewis's counsel again brought the matter to the judge's attention during a
sidebar on a different objection, asserting that a Sprint representative had
testified in Bond's trial that the significance of the introductory numeral "1" was
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likely that it was pressed when dialing long distance from a landline. But the
judge noted that the prosecutor had cited testimony from a different witness, and
again assured counsel that the testimony would be reviewed for the accuracy of
the prosecutor's earlier remarks.
The stenographer searched the record at the judge's request during a break
and found the following testimony, albeit from a different witness than the
prosecutor recalled, as to the significance of the number:
It means that there was a 1 that was dialed prior to the
area code, when it was dialed, or it also means that on
Sprint phones when you put in a number into your
contact list or a speed dial list, it often puts a 1 in.
The prosecutor assured the trial judge that he would clarify his remarks to reflect
that testimony and promptly told the jury:
Just to clear up any issues regarding when I talked
about the Sprint telephones and talking to the custodian
of records and saying when there was a 1 in front of the
area code, as in 1(267) in the dialed digits columns,
what I believe the Sprint custodian said -- I asked him,
what does that mean. He says, there was a 1 dialed, or
in a Sprint phone, if you add a name to -- or number to
your contact list or you add a name to your speed dial
list, the phone automatically puts that 1 in.
So I made the inference that that number 1 was added
from a contact list or a speed dial list that the person
with the phone would have had to enter.
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Lewis's counsel interjected – claiming the prosecutor's statement was
inaccurate – and the judge again reminded the jurors that their own recollection
of the testimony would prevail. Lewis's and Harris's counsel brought the matter
up again when the prosecutor ended his summation, arguing the remarks
remained misleading, but the judge overruled their objection because the
prosecutor's clarification had been a "fair comment based on the testimony."
For his part, Harris also takes issue with the prosecutor's mention, in the
course of the following argument in summation, that a particular phone cal l
occurred between Harris and Shyiesha Robichaw:
So, how about the defendants in this case? Well, Lewis,
at 6:35, is hitting off a cell tower at 460 Main Avenue
[in Lodi]. . . . Mr. Harris, who is from Philadelphia,
Pennsylvania, is communicating with Shyiesha
Robichaw, another person that you heard. She was
having a dating relationship. You heard from her. She
came into court. And at 6:32 p.m., Mr. Harris' phone is
hitting off of 460 [M]ain Avenue in Lodi. Sharif
Torres, another person from Philadelphia, at 6:21 p.m.
is hitting off a cell tower at 460 Main Avenue in
Wallington, near Lodi. The inference that you can draw
from those facts is that the three of them were together
and that they were up near Jamel Lewis' house,
dropping off Jamel's car in a parking complex before
traveling to Newark.
[(Emphasis added).]
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57
Harris's counsel did not immediately object, but later brought the issue up
during a sidebar regarding the other challenged remarks addressed above. He
pointed out that the call made at 6:32 p.m. had not actually been to Robichaw's
number and asked that the prosecutor's contrary comment be corrected. The
judge promptly reminded the jury that its recollection of the evidence would
control, but no correction was made, and the State now concedes the remark was
inaccurate.
Lewis and Harris maintain on appeal that the prosecutor's initial remarks
about the contact list were inaccurate or misleading. Though they acknowledge
that he eventually offered a clarification, they assert that the damage had already
been done, noting that even the judge expressed displeasure with the
prosecutor's conduct during summation when the issue was brought up on
defendants' motions for a new trial. Harris adds that the prosecutor's erroneous
reference to the call with Robichaw likewise unfairly prejudiced him and
deprived him of a fair trial.
To the extent the prosecutor's initial remarks could be deemed misleading,
simply because he did not specify that he had drawn an inference from particular
testimony, he later was more explicit about that claimed inference. At each turn,
the judge reiterated that the jurors' own recollection of the evidence would
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control, and we adhere to the principle that jurors are presumed to follow a
judge's instructions. Loftin, 146 N.J. at 390. To be sure, as Lewis and Harris
point out, the judge did ultimately express some displeasure with the
prosecutor's delay in clarifying his remarks, but not without appropriately
acknowledging that those remarks entailed a reasonable inference from the
evidence that he was entitled to argue in summation.
The prosecutor's reference to the call between Harris and Robichaw, on
the other hand, was undisputedly inaccurate. Ideally, it would have been
stricken from the record or at least, as Harris's counsel requested, corrected for
the jury. But we view the mistake as harmless when considered in context.
Records otherwise showed contact between the phones attributed to Harris and
Robichaw, along with those of other of his acquaintances, tending to show his
use of the phone during the appropriate time period. The only significance of
the 6:32 p.m. call to the prosecutor's argument was that it demonstrated Harris's
location near Lodi when Lewis and Torres were there. Whether the contact was
with Robichaw or not was superfluous to that argument.
In short, the prosecutor's comment about Harris being included in Lewis's
phone contacts, once clarified, was neither inaccurate nor misleading, and his
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remark as to the phone call between Harris and Robichaw, while inaccurate, was
not harmful.
X
Harris argues in his pro se supplemental brief that the instructions to the
jury inappropriately suggested that he, rather than the State, was saddled with
the burden of persuasion on accomplice liability.
Central to the constitutional guarantee of a fair criminal trial is the judge's
"obligation to insure that the jury's impartial deliberations are based solely on
the evidence and are made in accordance with proper and adequate instructions."
State v. Purnell, 126 N.J. 518, 531 (1992). Instructions should serve as a "road
map to guide the jury" in its deliberations, State v. Martin, 119 N.J. 2, 15 (1990),
and provide an accurate and "comprehensible explanation of the questions that
[it] must determine, including the law of the case applicable to the facts that [it]
may find," State v. Green, 86 N.J. 281, 287-88 (1981). Although inaccurate
instructions are generally viewed as "poor candidates for rehabilitation" and are
"ordinarily presumed to be reversible error," State v. Afanador, 151 N.J. 41, 54
(1997), our Supreme Court has recognized that not every inaccuracy warrants
reversal, State v. Jordan, 147 N.J. 409, 422 (1997). In the absence, as here, of
any timely objection to an instruction, a reviewing court will reverse only for
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plain error. Afanador, 151 N.J. at 54. That is, reversal will occur only when the
error, considered in the context of the charge as a whole, "prejudicially affect[s]
the substantial rights of the defendant sufficiently grievous[ly] 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." Jordan, 147 N.J. at 422 (quoting
State v. Hock, 54 N.J. 526, 538 (1969)).
As to accomplice liability, the judge utilized the precise language of the
model charge, Model Jury Charges (Criminal), "Liability for Another's Conduct
(N.J.S.A. 2C:2-6)" (rev. May 22, 1995), in explaining that accomplice liability
could be proven by circumstantial evidence:
Mere presence at or near the scene does not make one a
participant in the crime, nor does the failure of a
spectator to interfere make him a participant in the
crime. It is, however, a circumstance to be considered
with the other evidence in determining whether he was
present as an accomplice. Presence is not in itself
conclusive evidence of that fact. Whether presence has
any probative value depends upon the total
circumstances. To constitute guilt there must exist a
community of purpose and actual participation in the
crime committed.
While mere presence at the scene of the perpetration of
a crime does not render a person a participant in it,
proof that one is present at the scene of the commission
of the crime, without disapproving or opposing it, is
evidence from which, in connection with other
circumstances, it is possible for the jury to infer that he
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assented thereto, lent to it his countenance and approval
and was thereby aiding the same. It depends upon the
totality of the circumstances as those circumstances
appear from the evidence.
[(Emphasis added).]
Harris seizes on the highlighted language and contends it implies that,
once the prosecution established his presence at the scene, the jury could infer
his participation from that lone fact unless he affirmatively demonstrated that
he disapproved of or opposed the crime, an impossibility in a case where he
denied being present. Harris argues, relying on Moore v. Ponte, 186 F.3d 26,
33-34 (1st Cir. 1999), and Gilbert v. Moore, 134 F.3d 642, 647 (4th Cir. 1998),
that the instruction thereby inappropriately shifted the burden of persuasion, and
he asserts that this mistake constituted plain error in the context of a
circumstantial case that turned nearly entirely on proof of his whereabouts while
the crimes were committed.
We initially note that the instructions in the federal cases on which Harris
relies were held not to justify reversal, even though the prosecution conceded in
both cases the instructions were unconstitutional. Moore, 186 F.3d at 33-34;
Gilbert, 134 F.3d at 647, 652. The concern in both those cases was that the
instructions created a mandatory presumption, that is, that the instruction could
be understood by jurors as requiring them to infer an element of a charged
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offense from a basic fact in evidence. Moore, 186 F.3d at 33-34; Gilbert, 134
F.3d at 647. The constitutional infirmity is that such an instruction relieves the
prosecution of its burden to prove every element of the offense beyond a
reasonable doubt by shifting the burden of persuasion to the accused to rebut the
presumed fact. Sandstrom v. Montana, 442 U.S. 510, 524 (1979).
The challenged instruction here, however, cannot reasonably be construed
to create such a presumption. The model charge, to which the judge adhered,
merely explains that evidence of a defendant's presence at the crime scene,
considered along with the surrounding circumstances, could "possibl[y]" give
rise to an inference that the defendant participated in commission of the crime.
The instruction makes clear that a person's "mere presence . . . does not render
[the defendant] a participant," and that whether the inference should be drawn
must depend on the "totality of the circumstances."
Confronted with evidence supporting such an inference, a defendant
certainly retains the option to present evidence either tending to show
disapproval or opposition to the crime notwithstanding the defendant's presence
at the scene, or rebutting that the defendant was even present at the scene in the
first place. But nothing in the instruction suggests a defendant has any burden
to do either of those things or otherwise undermines the defendant's right to
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simply put the prosecution to its proofs, In re Winship, 397 U.S. 358, 364
(1970); State v. Parsons, 341 N.J. Super. 448, 457 (App. Div. 2001), which
Harris exercised here. The jury simply did not reach the conclusion he urged.
XI
Harris and Torres argue the cumulative effect of the alleged errors
justified a judgment of acquittal or new trial and warrant reversal now. To be
sure, reversal may be justified when the cumulative effect of a series of errors
is harmful, even if each is harmless in itself. State v. Jenewicz, 193 N.J. 440,
473 (2008). But, as we have already explained, defendants' arguments lack
merit, so the premise for this argument hasn't been established.
XII
All defendants contend their sentences were excessive.
Trial judges possess considerable discretion when sentencing defendants.
State v. Dalziel, 182 N.J. 494, 500 (2005). A judge's decision will not be
disturbed so long as it follows the applicable statutory guidelines, identifies and
weighs all applicable aggravating and mitigating factors, and finds the support
of sufficient credible evidence in the record. State v. Natale, 184 N.J. 458, 489
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(2005). Beyond that, a sentence will be reversed only if it "shocks the judicial
conscience." State v. O'Donnell, 117 N.J. 210, 215-16 (1989).
When sentencing Lewis, the judge found as aggravating factors the nature
and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1), and the gravity and
seriousness of the harm to the victim, N.J.S.A. 2C:44-1(a)(2). The judge
recognized that finding both may at times constitute double counting on a charge
of felony murder, but he believed the length of time Worthy "suffer[ed] at [his]
hands" justified applying both factors. The judge additionally found as
aggravating factors the risk of reoffense, N.J.S.A. 2C:44-1(a)(3), Lewis's
extensive criminal record, N.J.S.A. 2C:44-1(a)(6), and the need for deterrence,
N.J.S.A. 2C:44-1(a)(9), explaining that Lewis's criminal history was
"atrocious."4 The judge concluded that these aggravating factors clearly
outweighed the mitigating factors because he, in fact, found no applicable
mitigating factor.
The judge sentenced Lewis to a term of life imprisonment with a
mandatory minimum of thirty years on the felony murder conviction. He merged
the robbery conviction with the felony murder conviction and sentenced Lewis
4
Lewis had convictions for six indictable offenses, a municipal ordinance
violation, a disorderly person offense, ten juvenile adjudications, and a juvenile
probation violation.
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to a concurrent thirty-year term on the kidnapping conviction, as well as lesser
concurrent terms on the remaining convictions.
In sentencing Harris and Torres, the judge found all the same aggravating
factors, except the sixth, and again concluded those factors clearly outweighed
the mitigating factors, of which he found none. Both Harris and Torres were
sentenced to sixty-year prison terms, with mandatory minimums of thirty years,
on the felony murder conviction, and lesser concurrent terms – after merging the
Worthy robbery conviction into the felony murder conviction – on the remaining
convictions.
Lewis argues on appeal that the judge's finding of the first and second
aggravating factors double counted not only each other but the elements of the
offenses as well. He also claimed the judge should not have given much weight
to the third, sixth, and ninth factors, all of which, he believes, are interrelated
and arguably apply to any criminal case. Lewis is certainly incorrect in the last
respect; indeed, if that were so, the judge would have found, but did not find,
the sixth aggravating factor when sentencing Harris and Torres. Insofar as
Lewis contends that none of the aggravating factors should have been weighed
heavily, it remains that the judge correctly found no competing mitigating
factors and Lewis suggests none now. Moreover, although he is correct that the
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facts establishing the elements of an offense must not be counted as aggravating
circumstances, State v. Kromphold, 162 N.J. 345, 353 (2000), the judge
specified that the first two aggravating factors were supported by the
considerable length of time Worthy was subjected to harm by these defendants,
a circumstance that is not an element of the offense.
Harris, for his part, raises the same double counting argument as to the
first two aggravating factors. But he and Torres also quarrel with the judge's
finding of those factors on the ground that the evidence failed to reveal the roles
they played in these offenses. Harris reasons in particular that the jury's
acquittal of him on both weapons offenses leaves no evidence that he personally
committed any of the acts on which the first two aggravating factors could be
based; he relies on State v. Rogers, 236 N.J. Super. 378, 387 (App. Div. 1989),
aff'd, 124 N.J. 113 (1991), for that proposition. Torres adds that, given the
weakness of the evidence establishing his participation in these offenses, the
lack of any evidence as to his particular role in them, and his relatively young
age – twenty at the time of his arrest – the minimum sentence of thirty years
would have been sufficient punishment.
To be sure, those contentions are arguable but the judge considered them;
the only question is whether the judge's conclusions as to what constituted
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proper and just prison sentences for these defendants fell within his discretion.
Dalziel, 182 N.J. at 500. In that connection, it is certainly the case that the jury
acquitted both Harris and Torres of the weapons charges and it is also true that
the evidence failed to show the precise role each played throughout this series
of criminal transactions. But it does not inexorably follow that the basis for
finding either of the first two aggravating factors here was not personal to each
defendant.
At issue in Rogers, 236 N.J. Super. at 387, were aggravating factors based
on the circumstances that two of the victims were police officers and one walked
with a limp and was therefore particularly vulnerable. We held there that the
sentencing judge's findings in those regards were inappropriate because there
was no evidence that the defendant actually knew of any of those circumstances.
Ibid. We explained that, "[a]lthough a defendant may be vicariously
accountable for the crimes his accomplice commits, he is not vicariously
accountable for aggravating factors that are not personal to him." Ibid.In contrast, the judge specified that the basis for his finding of the first
two aggravating factors was the sheer length of time Worthy was subject to
harm. The jury's conclusion that Harris and Lewis both participated in the series
of offenses resulting in her harm for that length of time, based on evidence
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tending to show that each participated throughout, sufficed to support the
aggravating factors found here, regardless of their precise individual roles or
whether either of them personally used a weapon.
We are satisfied that the sentences imposed on all three defendants were
within the judge's discretion and that defendants' arguments to the contrary are
without merit.
***
To the extent we have not discussed any other issue raised in the parties'
extensive submissions, it is because we find them to have insufficient merit to
warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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