STATE OF NEW JERSEY v. JASON A. DOTTS, III STATE OF NEW JERSEY v. JAMES L. DOTTS, III (17-03-0358, MONMOUTH COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4830-18
A-4831-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON A. DOTTS, III,
a/k/a JASON A. DOTTS, SR.,
and JASON DOTTS, III,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES L. DOTTS, III,
a/k/a JAMES DOTTS,
Defendant-Appellant.
__________________________
Submitted March 30, 2022 – Decided September 1, 2022
Before Judges Messano and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 17-03-
0358.
Joseph E. Krakora, Public Defender, attorney for
appellant Jason A. Dotts, III (Richard Sparaco,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant James L. Dotts, III (Michael A. Priarone,
Designated Counsel, on the brief).
Lori Linskey, Acting Monmouth County Prosecutor,
attorney for respondent (Carey J. Huff, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the briefs).
PER CURIAM
In these back-to-back appeals, which have been consolidated for the
purpose of writing one opinion, defendants Jason A. Dotts and James L. Dotts ,
III, twin brothers, 1 challenge their convictions and sentences following a joint
jury trial on charges of second-degree robbery, N.J.S.A. 2C:15-1; second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1); and conspiracy to commit robbery,
1
Although both defendants bear the suffix, "III," in the record, only one
defendant would be named after his father. Because James L. Dotts was
referenced with the suffix, whereas Jason A. Dotts was referenced without it in
the first transcript in the record, we adopt these designations in this opinion.
Also, because defendants share the same surname, we refer to them by their first
names for convenience of the reader. We intend no disrespect by employing
this informality.
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N.J.S.A. 2C:5-2(a)(1). Prior to trial, their co-defendant, Ramel Kirkpatrick, who
was similarly charged, pled guilty to third-degree conspiracy to commit
aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b), and agreed to testify for the
State, in exchange for the dismissal of the remaining charges and the State
recommending he receive a sentence of 364 days in jail and a probationary term.
We affirm in all respects in both appeals.
I.
In 2016, John Hessian lived two doors away from defendants' mother in
the same apartment complex in Long Branch. He had known defendants for
approximately three or four years.
Hessian was wounded in combat while serving in the United States Army
and later suffered from physical and mental health issues. Therefore, he
qualified for social security disability benefits. On the third day of each month,
Hessian would go to the bank and withdraw his disability payments. On
November 3, 2016, he went to the bank, withdrew his disability payment, paid
some bills with money orders and kept the remaining cash — approximately
$350 — in his wallet.
When he returned home, Hessian saw defendants outside their mother's
apartment. Jason asked Hessian for five dollars, although he previously had not
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asked Hessian for money. Hessian opened his wallet and gave Jason the five
dollars. Jason asked if he could come to Hessian's apartment later for help with
some insurance paperwork. Hessian did not have a background in insurance but
agreed to the favor. While the men stood together, James also asked Hessian
for five dollars. Hessian again opened his wallet and gave James four singles,
because Hessian "only had larger bills."
At approximately 9:30 p.m. that evening, while Hessian was watching
television, defendants and Kirkpatrick came to his apartment. According to
Hessian, Kirkpatrick was standing by the front door, James was to Hessian's left,
and Jason to his right. Hessian began to look over Jason's insurance paperwork
and at some point, defendants' mother came to Hessian's front door. Defendants
briefly exited the apartment to speak with their mother before returning to
Hessian's apartment.
Hessian does not recall what happened next, other than he woke up alone
on the floor of his apartment, near a chair where he had been sitting. He was
covered in blood and felt groggy. Hessian could not find his cell phone, so he
used a backup phone to call 911 and report he was "beaten up." The 911 call
was played for the jury.
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Detective Nicholas Romano and another officer were among the first to
respond to the scene. They found Hessian bleeding, and blood spattered in
various areas of the apartment. Hessian informed the detective that defendants
and another man were in his apartment earlier, but he could not remember who
assaulted him.
Emergency medical personnel transported Hessian to the hospital, where
he was diagnosed with significant injuries, including facial fractures, a
concussion, and a brain bleed. He remained hospitalized for a week before he
was discharged to a rehabilitation facility.
Fifteen days after the attack, Hessian returned home via ambulance. He
was wearing two hospital gowns because his "clothes were blood soaked." Jason
was outside Hessian's apartment and asked Hessian "how [he] was." Jason also
told Hessian "he could get [him] $300," despite that Hessian never told anyone
but the police how much money was taken from his wallet on November 3. The
following day, defendants' mother and two other family members visited
Hessian to talk "about what happened to" him.
Based on Hessian's initial conversation with Detective Romano,
defendants and Kirkpatrick became suspects. Subsequently, Hessian met with
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another detective for a photo array and identified Kirkpatrick as the third
individual who was in his apartment on the night of the incident.2
Detective Romano and another officer interviewed James at police
headquarters the day after the attack. Once James was Mirandized,3 he admitted
speaking with Hessian on November 3 but denied assaulting or robbing him, or
being present during the attack. James also said he did not remember having a
conversation with his mother outside of Hessian's apartment the previous
evening because he "was drunk."
As the interview continued, James recalled his mother was "hollering at
Jason" and called defendants out of Hessian's apartment on the night of
November 3 after hearing Jason accepted money from Hessian. James later
stated he believed Kirkpatrick "probably hit" Hessian but he "didn't see" the
assault because he was looking at a sports magazine Hessian had or was
watching television. Eventually, when he was asked whether Kirkpatrick hit
Hessian, James answered, "Yeah." James also claimed he cursed and left
Hessian's apartment after Kirkpatrick hit Hessian.
2
The photo array was videotaped and the recording was played for the jury at
trial.
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
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During the interview, Detective Romano referred to James's municipal
job and told him it would not "look good for work" if James was involved in the
incident or was "hiding information." James denied he was lying, then said he
"wasn't there" when Hessian was attacked. But he also stated he thought
Kirkpatrick hit Hessian, and he did not "know why [Kirkpatrick] did it."
After some additional questioning, Detective Romano asked James,
"[y]ou want to keep doing this?" James responded, "No, I'm ready to go." "I
got to go get my check, . . . go eat, take a shower." Nevertheless, the police
continued questioning James and he advised the officers he did not see
Kirkpatrick hit Hessian, but "just kn[e]w he did." James also stated Kirkpatrick
probably "took something as he was looking around."
Detective Romano and another officer interviewed Jason two days after
the attack. By then, Jason had been arrested on a complaint the detective signed
against both defendants for endangering an injured victim. Once Jason was
photographed and fingerprinted, he executed a form acknowledging his Miranda
rights and agreed to speak to the police. Detective Romano informed him he
was being questioned "because there was an incident . . . where . . . [his] mom's
house is." Jason admitted he was in Hessian's apartment on November 3, but he
claimed he met with Hessian for help with his insurance paperwork. Jason
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initially denied any knowledge of the assault, except what he heard from his
mother. Detective Romano warned Jason he could "be charged additionally
with . . . a robbery and an aggravated assault," adding, "I know you know more
about it."
As the interview progressed, Jason admitted he was in Hessian's apartment
with James during the attack. Jason claimed Kirkpatrick "kick[ed] the door in,"
entered Hessian's apartment, and hit Hessian "in the face," causing Hessian to
fall. According to Jason, Kirkpatrick was "so drunk that he was . . . just
punching" Hessian and Hessian "was knocked out." According to Jason, once
this happened, he "got [his insurance] paperwork" and left. He admitted Hessian
was on the ground bleeding at that point. Jason said he "didn't know
[Kirkpatrick] was gonna do that."
Kirkpatrick was interviewed by the police approximately three weeks
after defendants were interviewed. He denied being in Hessian's apartment on
November 3 and claimed defendants were lying when they said he was.
II.
Defendants were indicted in 2017. Prior to trial, the State requested an
N.J.R.E. 104(c) hearing to address the admissibility of defendants' statements to
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the police. Neither defendant moved to suppress his statement before the
hearing.
At the 104 hearing, James's attorney requested the latter portion of his
client's statement to Detective Romano be suppressed, specifically that portion
following the words, "I got to go get my check, . . . go eat, take a shower." The
State conceded Detective Romano should have ceased interrogating James when
he made this equivocal statement so the detective could determine whether
James wanted the interview to end.
Following argument, the judge found James "clearly understood . . . and
acknowledged . . . his rights under Miranda" and "was not under any duress or
coercion" during his interrogation. But the judge concluded Detective Romano
"should have stopped . . . and questioned the defendant to determine whether . . .
he was seeking to invoke his Miranda rights" after indicating he was "ready to
go."4 Thus, the judge found only that portion of James's statements preceding
4
See State v. Harvey, 151 N.J. 117, 221 (1997) (quoting State v. Johnson, 120
N.J. 263, 284 (1990)) ("If police are unsure whether a defendant is asserting his
[or her] right to silence, they must either stop the interrogation completely or
'ask only questions narrowly directed to determining whether defendant [is]
willing to continue.'") "Such questioning is not considered 'interrogation' under
Miranda, because it is not intended to 'elicit an incriminating response from the
suspect.'" Johnson, 120 N.J. at 283 (quoting Christopher v. Florida, 824 F.2d
836, 842 n.16 (11th Cir. 1987)).
A-4830-18
9
his telling the detective he needed to "go get [his] check, . . . go eat, [and] take
a shower" was admissible.
As the 104 hearing continued, the State questioned Detective Romano
about Jason's custodial interview. Notably, when the testimonial hearing ended,
Jason's attorney lodged no objection to the admission of Jason's statement. The
judge found that once Jason was Mirandized, there was "no indicia . . . [of] any
coercion, duress, or any other untoward circumstance" during the interview, and
Jason appeared "anxious . . . to speak to the officer." The judge concluded the
statement was admissible, finding "beyond a reasonable doubt, the statement
was completely voluntary."
III.
In March 2018, defendants proceeded to trial. The trial ended in a hung
jury and the judge declared a mistrial. In June 2018, James moved to have the
entirety of Kirkpatrick's out-of-court statement to police deemed admissible.
Jason joined in the motion. Citing N.J.R.E. 613(b), 5 the judge ruled Kirkpatrick
5
N.J.R.E. 613(b) provides, in part,
[e]xtrinsic evidence of a witness' prior inconsistent
statement may be excluded unless the witness is
afforded an opportunity to explain or deny the
statement and the opposing party is afforded an
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could only be impeached with the portions of his statement that were
inconsistent with his trial testimony, "[i]f and when . . . Kirkpatrick testifie[d]."
IV.
A second trial commenced in March 2019. In anticipation of Hessian
testifying about defendants' family and friends approaching him after the
assault, James moved to bar this testimony. Jason joined in the motion. The
judge denied the application, explaining:
I think it is relevant that the . . . victim be able to testify
that he was approached by these individuals at whatever
point in time after he came home from the hospital. I
don't think . . . the State should ask the victim on direct
examination, how that made him feel.
....
But I'm going to rule that . . . those conversations
in the victim's apartment after he returns home from the
hospital are admissible on direct examination . . . .
James's counsel also sought to preclude Hessian from testifying
extensively about his injuries from his military service. She stated, "we know
he is a disabled military veteran. I don't have any objection to informing the
opportunity to interrogate on the statement, or the
interests of justice otherwise require. This rule does not
apply to admissions of a party opponent as defined in
Rule 803(b).
A-4830-18
11
jury of that. . . . I would ask that he be limited to . . . he was in the military, . . .
he was wounded. . . . But maybe just a little bit less tugging at the heart strings."
(Emphasis added). In response, the assistant prosecutor agreed to limit her
questioning but stated she would seek to elicit Hessian was "a wounded military
veteran and . . . on disability, that he receives disability checks" and "he gets
disability . . . because of his military service." The judge stated he would "allow
that," noting Hessian's disabilities were "obvious to the lay person."
Following this ruling, Hessian testified. He stated he received social
security disability benefits for psychiatric reasons, some of which were the result
of his military service. Hessian also confirmed he served in the Army for eight
years and was wounded in combat. Further, he affirmed he received disability
benefits once a month.
During Hessian's cross-examination, he told each defense attorney he did
not know who assaulted him. Significantly, neither counsel confronted Hessian
during cross-examination about statements he made to defendants' investigator,
Ivan Mendez, specifically that Hessian believed neither James nor Jason
assaulted or robbed him. The State conducted no redirect examination.
James's attorney proceeded with recross-examination and asked Hessian,
"do you recall speaking with an investigator from my law office?" The State
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objected, arguing this question was outside the scope of cross-examination.
James's counsel responded that Hessian told her investigator "something
different from what he just testified to." The judge asked James's counsel to
"make a proffer," at which point she offered to "go get the [investigator's]
report." The judge responded, "[w]hat's the inconsistency that is within the
scope?" James's attorney stated Hessian had just testified that
he wasn't aware . . . any money was missing until the
police told him so. That is different from what he told
my investigator. He said . . . he had no idea who hit
him, which is different from what he told my
investigator, which was that he was confident that
James or Jason did not assault him.
The State highlighted that Hessian made the same representations when
James's counsel initially cross-examined him. The judge asked James's counsel,
"why didn't you confront him with this on cross-examination?" She answered,
"I expected [Jason's attorney] to bring it up." The judge informed counsel he
would reserve on the evidentiary issue but "[i]n the meantime, [James's counsel
could] cross-examine [Hessian] on inconsistencies brought out on . . . cross-
examination [by Jason's attorney]."
The next day, James's attorney reprised her argument about using
Mendez's report. She argued the judge had permitted the State to ask Hessian
about defendants' family and friends visiting him after the assault because the
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State had expected Mendez to testify for the defense. Further, she claimed the
judge precluded her the previous day from retrieving Mendez's report when he
asked her for a proffer. The judge ruled defense counsel should not be allowed
to conduct recross-examination beyond the scope of cross-examination to
address how Hessian's testimony may have differed from statements provided
to Mendez. Turning to James's attorney, the judge stated,
you had full and lengthy cross-examination . . . [and
Hessian] indicated . . . that he didn't know who
assaulted him. You had the investigator's report. You
could have cross-examined him with the report at that
time.
As far as the sidebar is concerned, I have no
recollection of restricting you from going and getting
the [investigator's] report. I remember you offering me
the opportunity to read the report. . . . I don't have to
read the report. I . . . ask[ed] you for an offer of
proof . . . .
....
Recross-examination is not a reopening of your
entire cross-examination. There are Court Rules.
Recross-examination is not a function of asking
anything you want for as long as you want with no
rules.
When testimony resumed, the State called Dr. Sharon Weiner to testify
about the extensive injuries Hessian suffered after he was assaulted. It also
called Kirkpatrick to testify. Kirkpatrick admitted he went to Hessian's
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apartment twice on the evening of November 3. He stated when he first went to
the apartment, defendants' mother came to the door and started "screaming for
[the trio] to get out." Kirkpatrick recalled that the three men left Hessian's home
but returned thereafter because Jason announced he wanted to rob Hessian and
asked Kirkpatrick to join him.
According to Kirkpatrick, when the three men went back to Hessian's
apartment, Hessian was standing in the middle of the living room, James was in
front of Hessian with magazines in his hand, and Jason was behind Hessian
"pacing." Kirkpatrick claimed he remained standing by the front door and saw
Jason strike Hessian, causing Hessian to fall to the floor. When Kirkpatrick saw
Hessian was "already down," he assumed Jason no longer "need[ed his]
assistance," and left. Kirkpatrick stated he did not see anyone take money or a
cell phone from Hessian but "Jason came back and . . . gave [him] $50."
During Kirkpatrick's cross-examination, excerpts from his recorded police
statement were played for the jury. The excerpts included Kirkpatrick's denial
he was in Hessian's apartment on November 3, as well as his statement that
defendants were lying when they said he was present for the attack. Kirkpatrick
acknowledged his excerpted statements to the police were not true. Further, he
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admitted he cooperated with the State and negotiated a plea bargain "to avoid
the . . . harshest of penalties."
Following Kirkpatrick's testimony, Detective Romano testified. The
detective described the condition of Hessian and his apartment in the immediate
aftermath of the assault. The detective also testified about his interviews with
defendants and described how Hessian identified Kirkpatrick during a photo
array conducted by another detective. While the detective was on the stand, the
State played portions of defendants' recorded interviews for the jury.
As Detective Romano's direct examination continued, the State also
played footage from a surveillance video taken across the street from Hessian's
apartment. The detective explained how the footage depicted the movement of
individuals between the apartments of Hessian and defendants' mother on
November 3. For example, he confirmed three individuals left Hessian's
apartment at approximately 9:54 p.m. that night and no one else went in or out
of the victim's apartment until a police officer arrived there at approximately
10:07 p.m.
When cross-examined by James's counsel, the detective admitted the
faces, race and gender of the individuals seen on the surveillance footage could
not be discerned. Also, during recross-examination by James's counsel, the
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detective conceded "Jason's insurance paperwork was not found in [Hessian's]
apartment." The following exchange occurred:
[JAMES'S COUNSEL]: And Jason told you to your
face he picked up his paperwork and left after
[Kirkpatrick] assaulted [Hessian], correct?
[DETECTIVE ROMANO]: Correct.
[JAMES'S COUNSEL]: So, it's not surprising that his
paperwork wasn't there.
[DETECTIVE ROMANO]: They told me a lot of
stories.
[JAMES'S COUNSEL]: Okay. But if Jason said he
took [the paperwork] with him, then you wouldn't
expect to find it in the apartment; is that fair?
[DETECTIVE ROMANO]: No. They told me a lot of
different stories . . . from the beginning. If he told me
that he took it after an hour's worth of essentially lying
to me, no, I wouldn't believe that he would have taken
his paperwork; or I could . . . safely say he might not be
telling me the truth.
Neither defendant objected to this testimony and the Stated rested shortly
thereafter.
Subsequently, the judge barred Mendez from directly testifying about
inconsistent statements made by Hessian, again noting defense counsel failed to
confront Hessian with those statements during his cross-examination. Once
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defendants were sworn in and affirmed they did not wish to testify, the defense
rested without calling any witnesses.
The judge conducted a charge conference with counsel and adopted some,
although not all, of the revisions they proposed. Following summations, the
judge held another charge conference, charged the jury, and released jurors for
the day. At that point, James's counsel lodged an objection pertaining to the
accomplice liability charge and asked the judge to modify the charge. The judge
denied the request, stating, "I can't do that now. We . . . already had summations.
I have already charged the jury."
The next day, the judge addressed the renewed request of James's counsel
to modify the accomplice liability charge. Jason's attorney joined in the request.
After hearing further argument, the judge stated he "disagree[d] with the
defense's position on this," but "out of an abundance of caution," he granted the
defense's belated request to modify the charge. Both defense attorneys
represented the modified charge was acceptable to them before the judge read it
to the jury. None of the attorneys subsequently objected to this final charge.
Shortly after jury deliberations began, the jury sent a series of notes out
to the court. In one note, the jury asked, "Is the third charge simply a charge of
conspiracy to commit any crime or a charge of conspiracy to commit a robbery?"
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It also asked, "Is the conspiracy charge to 'commit a robbery' the indictable
offense because of the fact that someone was assaulted during the incident?"
Regarding the first question, the judge told the jury, "the third charge is a
charge of conspiracy to commit a robbery." He asked jurors to rephrase the
second question, and when they complied, they posed the question, "Is the
charge for conspiracy to commit a robbery the charge because of the fact that
there was an assault involved or could there have been a lesser[-]included charge
of conspiracy to commit a theft?" James's attorney inquired, "Should we tell
them that there is no lesser charge of conspiracy to commit theft? I mean,
robbery is theft with an aggravated assault." In response, the judge said he
would refer the jury to the robbery definition given in his charge; James's
attorney replied, "Okay." After the judge instructed the jury as he said he would,
neither attorney for the defense sought to have the judge charge the jury on
conspiracy to commit theft.
The next day, the judge accommodated the jurors' request to replay an
enlarged version of the surveillance video. Shortly thereafter, the jury acquitted
defendants of robbery but found them guilty of theft, aggravated assault, and
conspiracy to commit robbery.
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At sentencing, the judge determined defendant were persistent offenders,
pursuant to N.J.S.A. 2C:44-3(a).6 He sentenced them to extended fifteen-year
prison terms on their assault convictions, subject to an eighty-five percent parole
ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2(c)
(NERA). Further, the judge imposed seven-year terms, subject to NERA, on
their conspiracy convictions, and four-year terms for their theft offenses, with
all terms to run concurrent to one another.
V.
On appeal, Jason raises the following arguments for our consideration:
POINT I
6
N.J.S.A. 2C:44-3(a) provides, in part:
A persistent offender is . . . [someone who] is [twenty-
one] years of age or over, who has been previously
convicted on at least two separate occasions of two
crimes, committed at different times, when . . . at least
[eighteen] years of age, if the latest in time of these
crimes or the date of the defendant's last release from
confinement, whichever is later, is within [ten] years of
the date of the crime for which the defendant is being
sentenced.
If these criteria are met, a person convicted of a second-degree
crime, such as aggravated assault, may be sentenced to a term of
between ten and twenty years. N.J.S.A. 2C:43-7(a)(3).
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THE DEFENDANT WAS DENIED THE RIGHT TO
A FAIR TRIAL DUE TO THE COURT'S ADMISSION
INTO EVIDENCE OF HIS STATEMENT TO
DETECTIVES IN VIOLATION OF HIS MIRANDA
RIGHTS BECAUSE HE WAS NOT ADVISED OF
THE CHARGES HE WAS FACING.
POINT II
DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL DUE TO THE COURT'S REFUSAL TO
INSTRUCT THE JURY ON THE LESSER-
INCLUDED OFFENSE OF CONSPIRACY TO
COMMIT THEFT.
POINT III
THE DEFENDANT WAS DENIED THE RIGHT TO
A FAIR TRIAL DUE TO UNDUE PREJUDICE
CAUSED BY THE ADMISSION OF EVIDENCE
THAT MEMBERS OF THE DEFENDANT'S FAMILY
ATTEMPTED TO CONTACT THE VICTIM UPON
HIS RETURN FROM THE HOSPITAL.
(PARTIALLY RAISED BELOW).
A. THE FIRST PRONG UNDER COFIELD7
WOULD NOT HAVE BEEN MET.
B. THE THIRD PRONG UNDER COFIELD
WOULD NOT HAVE BEEN MET.
C. THE FOURTH PRONG UNDER
COFIELD WOULD NOT HAVE BEEN MET.
7
State v. Cofield, 127 N.J. 338 (1992).
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POINT IV
THE DEFENDANT WAS DENIED THE RIGHT TO
A FAIR TRIAL DUE TO UNFAIR AND
INADMISSIBLE EVIDENCE DESIGNED TO
EXTRACT SYMPATHY FOR THE VICTIM DUE TO
HIS PRIOR MILITARY SERVICE AND MILITARY
INJURIES.
POINT V
THE DEFENDANT WAS DENIED THE RIGHT TO
A FAIR TRIAL DUE TO IMPROPER OPINION
TESTIMONY BY THE INTERROGATING
DETECTIVE THAT THE DEFENDANT WAS NOT
TELLING THE TRUTH.
POINT IV
THE SENTENCE WAS EXCESSIVE BECAUSE THE
COURT FAILED TO UTILIZE THE CORRECT
RANGE OF SENTENCE WHEN SENTENCING A
DEFENDANT TO A DISCRETIONARY
EXTENDED-TERM. (NOT RAISED BELOW).
James raises the following contentions for our consideration:
POINT I
DEFENDANT'S STATEMENT TO POLICE SHOULD
HAVE BEEN SUPPRESSED AS INVOLUNTARY
AND ITS ERRONEOUS ADMISSION INTO
EVIDENCE AGAINST DEFENDANT AT TRIAL
DEPRIVED DEFENDANT OF DUE PROCESS AND
HIS FIFTH AMENDMENT RIGHTS IN VIOLATION
OF THE UNITED STATES AND NEW JERSEY
CONSTITUTIONS.
A-4830-18
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POINT II
THE TRIAL COURT DENIED DEFENDANT A FAIR
TRIAL BY BARRING CROSS[-]EXAMINATION OF
MR. HESSIAN WITH HIS PRETRIAL STATEMENT
TO A DEFENSE INVESTIGATOR THAT HE DID
NOT BELIEVE THAT THE DEFENDANTS HAD
ASSAULTED HIM, BY PRECLUDING THE
TESTIMONY OF DEFENDANT'S INVESTIGATOR
REGARDING MR. HESSIAN'S PRE-TRIAL
STATEMENT AND IN PRECLUDING DEFENDANT
FROM INTRODUCING INTO EVIDENCE MR.
KIRKPATRICK'S ENTIRE POLICE STATEMENT
AS INCONSISTENT WITH HIS TRIAL
TESTIMONY.
POINT III
THE VERDICTS ARE INCONSISTENT AND
REQUIRE THAT DEFENDANT'S CONVICTION
AND SENTENCE BE VACATED AND THE CASE
REMANDED FOR A NEW TRIAL BECAUSE THEY
RESULTED FROM THE COURT'S ERRONEOUS
REFUSAL TO ALLOW THE JURY TO CONSIDER
THE LESSER INCLUDED OFFENSE OF
CONSPIRACY TO COMMIT THEFT ON THE
COUNT CHARGING CONSPIRACY TO COMMIT
ROBBERY.
POINT IV
THE ADMISSION OF TESTIMONY THAT THE
ALLEGED VICTIM, MR. HESSIAN, WAS A
"COMBAT WOUNDED" DISABLED VETERAN
AND THE STATE'S ARGUMENT THAT THE
DEFENDANTS OCCUPIED A "POSITION OF
TRUST" AS TO MR. HESSIAN WAS A MIS-
STATEMENT OF LAW, IRRELEVANT TO ANY
A-4830-18
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ISSUE, ENGENDERED PREJUDICE AGAINST
DEFENDANT AND REQUIRES THAT
DEFENDANT BE GRANTED A NEW TRIAL. (NOT
RAISED BELOW).
POINT V
CUMULATIVE ERROR DEPRIVED DEFENDANT
OF A FAIR TRIAL AND REQUIRES THAT
DEFENDANT'S CONVICTION AND SENTENCE BE
REVERSED. (NOT RAISED BELOW).
POINT VI
DEFENDANT'S FIFTEEN[-]YEAR NERA
SENTENCE IS EXCESSIVE AND BASED ON THE
COURT'S ERRONEOUS DOUBLE[-]COUNTING OF
DEFENDANT'S STATUS AS A "PERSISTENT
OFFENDER" AND AGGRAVATING FACTORS SIX
AND NINE AND THE GROSS DISPARITY OF THE
COOPERATING CO-DEFENDANT'S COUNTY JAIL
SENTENCE.
These arguments are unavailing.
Defendants' Point I Arguments
Initially, defendants urge us to conclude the trial court erred by granting
the State's motion to admit defendants' statements to the police because Jason
was not advised of the charges against him prior to his interview and because
the police told James in his interview it would not "look good for work" if his
employer found out James was involved in the incident or was "hiding
information." We are not convinced.
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24
Our scope of review of a trial court's decision on a motion to suppress a
defendant's custodial statement to police is limited. When reviewing the grant
or denial of a motion to suppress a custodial statement, "we defer to the factual
findings of the trial court if those findings are supported by sufficient credible
evidence in the record." State v. Sims, 250 N.J. 189, 210 (2022) (citing State v.
S.S., 229 N.J. 360, 374 (2017)). But we review a trial court's legal conclusions
de novo. S.S., 229 N.J. at 380 (citing State v. Morrison, 227 N.J. 295, 308
(2016)).
After receiving Miranda warnings, a suspect may knowingly and
intelligently waive his or her right to remain silent and agree to answer questions
or make a statement. State v. Puryear, 441 N.J. Super. 280, 292 (App. Div.
2015) (citing Miranda, 384 U.S. at 479). The State must establish beyond a
reasonable doubt that the waiver was intelligent, voluntary and knowing. Ibid.(citing State v. Nyhammer, 197 N.J. 383, 400-01 (2009)). Although the suspect
is always free to waive the privilege and make a statement, the waiver must
never be the product of police coercion. State v. Presha, 163 N.J. 304, 313
(2000) (citing State v. Hartley, 103 N.J. 252, 260 (1986)). "At the root of the
inquiry is whether a suspect's will has been overborne by police conduct." Ibid.A-4830-18
25
A court typically considers the totality of the circumstances when
deciding whether an interrogee has knowingly, intelligently, and voluntarily
waived his or her right against self-incrimination while in custody. Nyhammer,
197 N.J. at 402-03 (citing State v. Magee, 52 N.J. 352, 374 (1968)). In State v.
A.G.D., our Supreme Court held that a Miranda waiver is invalid if the police
fail to advise an interrogee a criminal complaint has been filed or an arrest
warrant has been issued against the interrogee. 178 N.J. 56, 58-59 (2003).
However, the Court also recently made clear it is unnecessary for police officers
to "speculate about additional charges that may later be brought or the potential
amendment of pending charges." Sims, 250 N.J. at 214 (citing Nyhammer, 197
N.J. at 404-05).
As we have mentioned, Jason did not seek suppression of his statement at
the 104 hearing. Further, his attorney utilized Jason's statement in summation
to support the theory Kirkpatrick assaulted Hessian. And during James's 104
hearing, James's attorney requested that only the portion of James's statement
following his equivocal comments about needing to "go eat, take a shower" be
deemed inadmissible. Thus, because defendants did not seek suppression of
their statement on the grounds now raised on appeal, we review their Point I
contentions for plain error. R. 2:10-2. Such an error will not be grounds for
A-4830-18
26
reversal unless it was clearly capable of producing an unjust result. State v. J.R.,
227 N.J. 393, 417 (2017) (citing R. 2:10-2).
We need not discuss at length Jason's novel contention that his statement
to the police should have been suppressed because he was not advised by police
about the charges he might face before he waived his Miranda rights. Given the
Court's recent controlling opinion in Sims and the totality of the circumstances
involved in Jason's interrogation, we are satisfied the judge correctly found the
State met its burden in proving Jason's statement to the police was knowing and
voluntary, and therefore admissible.
Similarly, we conclude James's Fifth Amendment rights were not violated
when the police asked if he thought he would keep his municipal job if his
employer found out he was "lying or . . . not telling [the police] something."
Law enforcement officers may not attach a penalty to a public employee's
exercise of the right to remain silent through the threat of dismissal. State v.
Lacaillade, 266 N.J. Super. 522, 528 (App. Div. 1993). Thus, the use of
statements obtained under the threat of removal from office, whether policemen
or "other members of our body politic," is prohibited in subsequent criminal
proceedings. Garrity v. New Jersey, 385 U.S. 493, 500 (1967). But "[f]ear that
loss of employment will result from the exercise of the constitutional right to
A-4830-18
27
remain silent must be subjectively real and objectively reasonable." Lacaillade,
266 N.J. Super. at 528. Thus, "the defendant must have subjectively
believed . . . he [or she] was compelled to give a statement upon threat of loss
of job. Second, this belief must have been objectively reasonable at the time the
statement was made." Ibid. (quoting United States v. Camacho, 739 F. Supp.
1504, 1515 (S.D. Fla. 1990)).
Here, there is nothing in the record to indicate the Long Branch police had
the authority or power to discharge or recommend discharge of non-law
enforcement municipal employees. Thus, even if James subjectively believed
he would be discharged from his municipal position if he was not more
forthcoming, this belief was not "objectively reasonable," and the fact Detective
Romano may have engaged in speculation to persuade James to be more candid
did not eliminate the voluntariness of James's consent. Cf. State v. Hagans, 233
N.J. 30, 42 (2018) (alteration in original) (quoting State v. Cancel, 256 N.J.
Super. 430, 434 (App. Div. 1992)) ("An officer's comment regarding the
inevitability of a search warrant does not indicate coercion if it is 'a fair
prediction of events that would follow' rather than 'a deceptive threat made to
deprive [an individual] of the ability to make an informed consent.'").
A-4830-18
28
It also is worth noting that between the time Detective Romano inquired
about James's job and James's equivocal statement about leaving the interview,
statements of possible import appear limited to James telling the police he
thought Kirkpatrick hit Hessian, but he did not see Kirkpatrick do so. Thus, any
error arising from the detective's speculation was not clearly capable of
producing an unjust result.
James's Point II Argument
James next argues his attorney should have been permitted to cross-
examine Hessian about prior inconsistent statements made to Investigator
Mendez, and Mendez should have been allowed to testify that Hessian told him
he didn't think either defendant assaulted him on November 3. Further, James
reprises his contention he should have been allowed to introduce into evidence
the entirety of Kirkpatrick's statement to the police. We are not convinced.
Generally, evidentiary rulings are within the trial court's discretion and
will not be reversed on appeal absent a clear abuse of that discretion. State v.
McGuire, 419 N.J. Super. 88, 123 (App. Div. 2011) (citing Est. of Hanges v.
Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010)). It follows, then, that
the scope of cross-examination is within the sound discretion of the trial court,
the exercise of which will not be disturbed unless clear error and prejudice are
A-4830-18
29
shown. State v. Adames, 409 N.J. Super. 40, 61 (App. Div. 2009) (quoting
Glenpoint Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990)).
Under N.J.R.E. 611(b), cross-examination "should not go beyond the
subject matter of the direct examination and matters affecting witness
credibility." Here, the judge denied James the opportunity on recross-
examination — not cross-examination — to question Hessian about his
statement to Mendez that he didn't believe defendants assaulted him, after
testifying he didn't know who assaulted him. We discern no abuse of discretion
in this regard, considering: both defense attorneys failed to ask Hessian on
cross-examination if he told Mendez he didn't believe defendants assaulted him;
there was no redirect on the part of the State after both attorneys extensively
cross-examined Hessian; and James's attorney admitted to the judge she
expected Jason's attorney to question Hessian about the victim's statements to
Mendez. It also is well established that questions of defense counsel trial
strategy and motives, as well as errors of counsel as a basis for reversal of a
conviction, are normally deferred to a petition for post-conviction relief, and not
resolved on direct appeal. State v. Preciose, 129 N.J. 451, 462 (1992) (quoting
State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991)).
A-4830-18
30
Turning to James's argument the judge erred in barring Mendez from
testifying about Hessian's purported inconsistent statements to the investigator,
we again disagree. Initially, we note the judge did not bar all testimony from
Mendez. Instead, the judge disallowed Mendez from testifying about Hessian's
purported prior inconsistent statements. He explained:
The issue here is whether or not the defense should be
permitted to call Mr. Mendez as a witness to testify to
the contents of that statement which, as I understand it,
is a summary of a statement, not a question and answer
statement, not having been reviewed by the victim, Mr.
Hessian, not having been signed, reviewed, corrected,
as a formal statement but as a summary by Mr. Mendez.
The judge quoted the applicable text of N.J.R.E. 613(b) to counsel and stated:
So, . . . had Mr. Hessian been confronted with the
allegations contained in the statement prepared by Mr.
Mendez and been given the opportunity to say I either
did or didn't say those things to Mr. Mendez, perhaps
Mr. Mendez would have been able to testify to the
circumstances surrounding the statement taking; but
without having confronted Mr. Hessian with that
statement, it would seem to me that Rule 613(b)
precludes the admission of that statement.
Therefore, testimony regarding that statement is
inadmissible.
The judge's reasoning here was sound. Accordingly, we detect no basis
to second-guess his evidentiary ruling. Although Hessian's statement to Mendez
is not contained in the record, it is clear to us, as the judge noted, defendants'
A-4830-18
31
attorneys had Mendez's report and could have used it to cross-examine Hessian
about what he said to Mendez. They simply did not do so.
James next argues the judge erred in barring the defense from playing
Kirkpatrick's entire police statement for the jury, and by limiting the defense to
cross-examining Kirkpatrick about statements he made to the police which were
inconsistent with his testimony at trial. According to James, the entire police
statement should have been shown to the jury so it could assess Kirkpatrick's
"demeanor and manner when lying and assess his credibility at trial in that light."
We do not agree.
"Hearsay is an out-of-court statement 'offered in evidence to prove the
truth of the matter asserted.' N.J.R.E. 801(c). It is inadmissible absent an
exception to the rule against hearsay. N.J.R.E. 802. N.J.R.E. 803(a)(1) governs
the admissibility of witnesses' prior inconsistent statements." State v. Baluch,
341 N.J. Super. 141, 178 (App. Div. 2001). "To be admissible under N.J.R.E.
803(a)(1), a prior statement offered by an adversary of the party calling the
witness must be inconsistent with testimony given by the witness at the trial or
hearing." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt.
1(b) on N.J.R.E. 803(a)(1) (2022). "For a statement to be admissible under this
A-4830-18
32
Rule it must be offered in compliance with the requirements of N.J.R.E. 613(a)
and (b)." Id. at cmt. 1(a).
Here, the judge found that to the extent Kirkpatrick's recorded statement
to the police did not contradict the witness's trial testimony, it was inadmissible
hearsay. James does not challenge that finding. In fact, he points to no
exception to the rule against hearsay that would have permitted the admission
of the entire video. Further, the record reflects jurors were able to compare
Kirkpatrick's demeanor from portions of his recorded police statement against
his demeanor on the stand. Therefore, we detect no reason to conclude the judge
erred in barring James from admitting Kirkpatrick's entire statement to police.
Jason's Point II and James's Point III Arguments
Defendants next argue their convictions should be reversed due to the
judge's failure to charge the jury on conspiracy to commit theft as a lesser-
included offense to conspiracy to commit robbery. James also contends his
convictions and sentence should be reversed because the jury reached
inconsistent verdicts. We disagree.
Because defendants did not explicitly request the judge to charge
conspiracy to commit theft, nor did defense counsel object when the judge failed
to sua sponte charge the jury on the offense of conspiracy to commit theft, we
A-4830-18
33
review defendants' jury charge argument under the plain error standard. State
v. Montalvo, 229 N.J. 300, 320-21 (2017) (citations omitted).
[P]lain error requires demonstration of "legal
impropriety in the charge prejudicially affecting the
substantial rights of the defendant and sufficiently
grievous to justify notice by the reviewing court and to
convince the court that of itself the error possessed a
clear capacity to bring about an unjust result."
[State v. Chapland, 187 N.J. 275, 289 (2006) (quoting
State v. Hock, 54 N.J. 526, 538 (1969)).]
A court shall not charge an included offense "unless there is a rational
basis for a verdict convicting the defendant of the included offense." N.J.S.A.
2C:1-8(e). An offense is an included offense when:
(1) It is established by proof of the same or less than
all the facts required to establish the commission of the
offense charged; or
(2) It consists of an attempt or conspiracy to commit
the offense charged or to commit an offense otherwise
included therein; or
(3) It differs from the offense charged only in the
respect that a less serious injury or risk of injury to the
same person, property or public interest or a lesser kind
of culpability suffices to establish its commission.
[N.J.S.A. 2C:1-8(d).]
A trial court should deliver a lesser-included offense instruction sua
sponte where the facts in evidence "clearly indicate" the appropriateness of that
A-4830-18
34
charge. State v. Funderburg, 225 N.J. 66, 81 (2016) (quoting State v. Savage,
172 N.J. 374, 397 (2002)). Thus, "[o]nly if the record clearly indicates a lesser-
included charge—that is, if the evidence is jumping off the page—must the court
give the required instruction." Id. at 81-82 (quoting State v. Denofa, 187 N.J.
24, 42 (2006)). But the court may not sua sponte charge a lesser-included
offense where it would "cause complete surprise, or [be] so inconsistent with
the defense as to undermine the fairness of the proceedings." State v. Garron,
177 N.J. 147, 181 (2003) (citations omitted).
Theft is a lesser-included offense of robbery, State v. Ingram, 196 N.J. 23,
39 (2008), because robbery has the same elements as theft with the additional
requirement of demonstrating that the defendant used force or threatened bodily
harm, N.J.S.A. 2C:1-8(d)(3); N.J.S.A. 2C:15-1(a); N.J.S.A. 2C:20-2(b)(2)(d).
Thus, "all robberies are thefts, but not all thefts are robberies." State v. Mejia,
141 N.J. 475, 495 (1995) (citations omitted).
"Conspiracy to commit an offense is considered to be a lesser-included
offense of the substantive criminal offense . . . ." In re State ex rel. A.D., 212
N.J. 200, 222 (2012) (citing N.J.S.A. 2C:1-8(d)(2)). The difference between
conspiracy to commit robbery, a crime against a person, and conspiracy to
commit theft, a property crime, is that conspiracy to commit robbery requires
A-4830-18
35
threat of bodily injury or the use of a deadly weapon, while conspiracy to commit
theft only requires that the defendant had the purpose of facilitating a theft.
N.J.S.A. 2C:15-1(a); N.J.S.A. 2C:20-2(b)(2)(d).
Here, there is no indication in the record, let alone a clear indication,
Hessian was a victim of theft versus a robbery, or that defendants and
Kirkpatrick conspired to commit a theft. Also, Jason and James maintained
Kirkpatrick acted unilaterally in attacking Hessian and each defendant denied
having agreed with any co-defendant to steal money from Hessian.
Additionally, the jury asked during deliberations, "Is the charge for
conspiracy to commit a robbery the charge because of the fact that there was an
assault involved or could there have been a lesser charge of conspiracy to
commit a theft?" And James's attorney responded, in part, "Should we tell
them . . . there is no lesser charge of conspiracy to commit theft?" Further, after
the judge said he would refer jurors back to the definition of robbery he gave in
his charge, James's counsel replied, "Okay" and Jason's attorney lodged no
objection to the judge's plan. Under these circumstances, the judge was not
required to sua sponte charge the jury on conspiracy to commit theft.
We also are not persuaded the jury's inconsistent verdict cannot stand.
Indeed, "[o]ur system of justice has long accepted inconsistent verdicts as
A-4830-18
36
beyond the purview of correction by our court[]." State v. Kelly, 201 N.J. 471,
487 (2010) (citing United States v. Powell, 469 U.S. 57, 58 (1984)).
"Inconsistent verdicts are accepted in our criminal justice system" so long as the
evidence was sufficient to establish guilt on the offenses beyond a reasonable
doubt. State v. Banko, 182 N.J. 44, 53-55 (2004) (citations omitted).
Jason's Point III Argument
Next, Jason argues the judge erred in admitting evidence that members of
his family contacted Hessian after the victim completed rehabilitation. He
contends this evidence should have been excluded as unduly prejudicial under
N.J.R.E. 403 and N.J.R.E. 404(b). Again, we disagree.
Prior to the start of trial, James objected to Hessian being able to testify
about what defendants' relatives said to him after he was discharged from the
rehabilitation facility. The State indicated it would not elicit the details of the
conversation but would ask Hessian if these individuals spoke to him. The
assistant prosecutor represented:
I have an indication that Ivan Mendez, the public
defender investigator[,] is going to be testifying as a
defense witness.
[A]nd so if there is going to be any cross[-]
examination about what [Hessian] might have said to
Ivan Mendez, the fact that Ivan Mendez is the fifth
A-4830-18
37
person who talks to him on behalf of the defendant, I
think is important.
Jason's attorney countered, "the only inference you draw from somebody
coming to the house and [asking] how he feels is to suggest it's witness
tampering. To somehow connect these two defendants to that conduct now."
The judge stated, "I think that . . . [Hessian] was approached by them are facts
in the case." James's counsel interjected,
I don't see how it's relevant and I think that we are doing
a preemptive rebuttal here, of Ivan Mendez, and we are
leading the jury to believe that I, through my defensive
investigator, . . . somehow tampered with witnesses and
the victim. And I think that's fantastically prejudicial.
The judge ruled the anticipated testimony was relevant and admissible but
cautioned the State not to elicit from Hessian how the conversation "made him
feel." Subsequently, the following exchange occurred during Hessian's direct
examination:
[STATE]: [W]ithout going into any specifics, were you
approached in your apartment by anyone who knows
James or Jason Dotts?
[HESSIAN]: Yes.
[STATE]: And [who] would that be?
[HESSIAN]: [Their] mother, and two of [their] family
members and a neighbor that lived down the way from
my apartment.
A-4830-18
38
[STATE]: And that was after you had been assaulted
in your apartment.
[HESSIAN]: Right. Well, it was after I had gotten
home from the hospital.
[STATE]: Do you remember how long you had been
home from the hospital at that point?
[HESSIAN]: Maybe . . . a day.
[STATE]: Okay. And again, without going into
specifics, did they want to talk to you about what
happened to you?
[HESSIAN]: Yes.
Because defense counsel objected to the admission of this evidence during
the trial, the harmful error standard applies. State v. Bradshaw, 195 N.J. 493,
509 (2008); R. 2:10-2. An evidentiary error will not be deemed "'harmless' if
there is a reasonable doubt as to whether the error contributed to the verdict."
J.R., 227 N.J. at 417 (citing State v. McLaughlin, 205 N.J. 185, 211-12 (2011)).
N.J.R.E. 403 provides relevant evidence may be excluded "if its probative
value is substantially outweighed by the risk of: (a) [u]ndue prejudice,
confusion of issues, or misleading the jury; or (b) [u]ndue delay, waste of time,
or needless presentation of cumulative evidence." A trial court has considerable
discretion on whether to exclude potentially prejudicial evidence. State v.
A-4830-18
39
McDougald, 120 N.J. 523, 577-78 (1990) (citing State v. Allison, 208 N.J.
Super. 9, 17 (App. Div. 1985)). An abuse of discretion occurs when admission
of the prejudicial evidence "divert[s] jurors 'from a reasonable and fair
evaluation of the basic issue[s] of guilt or innocence.'" State v. Moore, 122 N.J.
420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App.
Div. 1988)).
Guided by these principles and given that Hessian offered no testimony
about what defendants' family members said to him or how he responded to
them, we are not persuaded admission of this evidence constituted harmful error.
Jason also contends Hessian's testimony about defendants' family
members should have been excluded under N.J.R.E. 404(b), as other crime or
bad act evidence. This argument is misplaced.
N.J.R.E. 404(b) provides that "[e]vidence of other crimes, wrongs or acts
is not admissible to prove a person's disposition . . . to show that on a particular
occasion the person acted in conformity with such disposition." "However, if
that evidence is offered to prove other facts in issue such as motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident,
it may be admissible subject to a weighing of the probative value against its
A-4830-18
40
apparent prejudice." State v. Barden, 195 N.J. 375, 388 (2008) (citing State v.
Stevens, 115 N.J. 289, 300 (1989)).
Other crime evidence should not be used to bolster the credibility of a
witness testifying against the defendant. State v. P.S., 202 N.J. 232, 256 (2010)
(citing State v. Darby, 173 N.J. 509, 520 (2002)). "[U]nder N.J.R.E. 404(b), the
party seeking to admit other-crimes evidence bears the burden of establishing
that the probative value of the evidence is not outweighed by its
apparent prejudice." State v. Reddish, 181 N.J. 553, 608-09 (2004) (citing State
v. Long, 173 N.J. 138, 162 (2002)).
The Cofield Court articulated the following four-prong test to guide the
determination of when to admit such evidence:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[Barden, 195 N.J. at 389 (citations omitted) (quoting
Cofield, 127 N.J. at 338).]
A-4830-18
41
The Cofield analysis is intended to reduce the underlying danger that the
factfinder may convict a defendant because "he or she is a 'bad person' who must
be guilty of the crime charged." State v. Castagna, 400 N.J. Super. 164, 175
(App. Div. 2008) (citations omitted). "Because of the damaging nature of such
evidence, the trial court must engage in a 'careful and pragmatic evaluation' of
the evidence to determine whether the probative worth of the evidence is
outweighed by its potential for undue prejudice." Barden, 195 N.J. at 389(quoting Stevens, 115 N.J. at 303).
Here, there is no evidence defendants' family said anything criminal or
even improper to Hessian. Moreover, no member of the family testified at trial.
Nor did the limited testimony from Hessian about defendants' family members
show that either defendant was disposed toward criminal or bad conduct, as
N.J.R.E. 404(b) seeks to prevent. Additionally, nothing in the record indicates
either defendant instructed family members to speak to Hessian. Accordingly,
we perceive no error in the judge permitting the challenged testimony.
Jason's and James's Point IV Arguments
Each defendant urges us to reverse his convictions based on the judge
allowing Hessian to testify about his military service and injuries. Jason further
contends the assistant prosecutor improperly stated in summation that Hessian
A-4830-18
42
occupied a "position of trust" with defendants, and they "t[ook] advantage" of
him.
Because James's attorney advised the judge pretrial she did not "have any
objection to informing" the jury Hessian was a military veteran and she did not
object to the challenged remarks in the State's summation, and because neither
defendant objected to Hessian's testimony when he stated he was wounded
during his military service and qualified for disability, we review defendants'
contentions for plain error. R. 2:10-2.
As we have mentioned, a trial court "has broad discretion in determining
the admissibility of potentially prejudicial evidence." State v. Scherzer, 301
N.J. Super. 363, 424 (App. Div. 1997) (citing State v. Wilson, 135 N.J. 4, 20
(1994)). Absent a clear abuse of discretion, we will not overturn the decision
unless it was "so wide of the mark that a manifest denial of justice
resulted." Ibid. (citing State v. Carter, 91 N.J. 86, 106 (1982)).
"[T]he fundamental obligation of those representing the State in criminal
prosecutions is not to convict, 'but to see that justice is done.'" State v. Williams,
244 N.J. 592, 607 (2021) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
Prosecutors are prohibited from including in their opening statements
inflammatory comments to generate sympathy for the victim or animosity
A-4830-18
43
toward the defendant. See State v. W.L., Sr., 292 N.J. Super. 100, 108 (App.
Div. 1996). A prosecutor's duty to refrain from improper methods that result in
wrongful conviction extends to the examination and cross-examination of
witnesses. A prosecutor may not elicit improper or inflammatory testimony
from a witness. See McGuire, 419 N.J. Super. at 140-42.
Prosecutors have considerable leeway in summarizing the State's case,
State v. Williams, 113 N.J. 393, 447 (1988), and may do so "graphically and
forcefully," State v. Johnson, 287 N.J. Super. 247, 265 (App. Div. 1996)
(quoting State v. Pratt, 226 N.J. Super. 307, 323 (App. Div. 1988)). They may
not, however, make "inflammatory and highly emotional" appeals that have the
capacity to distract the jury from a fair consideration of the evidence of guilt.
W.L., Sr., 292 N.J. Super. at 111 (quoting State v. Marshall, 123 N.J. 1, 161
(1991)). The prosecutor must confine his or her comments to the evidence and
the reasonable inferences that may be drawn therefrom. Johnson, 287 N.J.
Super. at 265 (citing State v. Smith, 27 N.J. 433, 460 (1958)). A conviction may
be reversed where the prosecutor engaged in conduct so egregious in the context
of the trial as a whole that defendant was deprived of a fair trial. State v.
Wakefield, 190 N.J. 397, 437-38 (2007) (citing State v. Papasavvas, 163 N.J.
565, 625 (2000)).
A-4830-18
44
Here, the record reflects Hessian's military service was mentioned briefly
in the State's opening remarks and again in Hessian's testimony, but only in
conjunction with his eligibility for disability payments. The assistant prosecutor
made no mention of Hessian's veteran status in summation but did fleetingly
refer to how Hessian trusted defendants.
We are satisfied Hessian's brief testimony about his military service and
disability simply made clear defendants knew when Hessian would have
received his monthly disability payment and established their knowledge of
Hessian's vulnerability on the date of the attack. Thus, we are convinced his
testimony was not unduly prejudicial. Also, we are persuaded the assistant
prosecutor's closing remarks constituted legitimate inferences from the facts, id.
at 457, considering she confined her comments to the evidence and stayed within
the wide latitude to which she was entitled, State v. Mayberry, 52 N.J. 413, 437
(1968) (citations omitted). Accordingly, the judge committed no error, let alone
plain error in admitting the challenged testimony, and we reject the notion the
State's closing remarks raise "a reasonable doubt as to whether [the comments]
led the jury to a verdict it might not have [otherwise] reached." State v.
Bankston, 63 N.J. 263, 273 (1973) (citing State v. Macon, 57 N.J. 325, 335-36
(1971)).
A-4830-18
45
Jason's Point V Argument
Jason newly contends he was denied his right to a fair trial because
Detective Romano implied in his testimony that defendants lied during their
police interviews. The challenged testimony occurred after James's attorney
asked during the detective's recross-examination, "if Jason said he took [his
insurance paperwork] with him, then you wouldn't expect to find it in [Hessian's]
apartment; is that fair?"; the detective answered:
No. They told me . . . a lot of different stories from the
beginning. If he told me that he took it after an hour's
worth of essentially lying to me, no, I wouldn't believe
that he would have taken his paperwork; or I . . . could
safely say he might not be telling me the truth.
Neither defendant objected to this testimony. Therefore, the issue raised is one
of plain error. Macon, 57 N.J. at 336; R. 2:10-2.
A police officer testifying as a fact witness is not permitted to offer an
opinion as to a defendant's guilt or innocence, directly or by "necessary
inference." State v. Frisby, 174 N.J. 583, 593-94 (2002). Police testimony
concerning a defendant's guilt or veracity is prejudicial because a jury "may be
inclined to accord special respect to such a witness." Neno v. Clinton, 167 N.J.
573, 586-87 (2001).
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In State v. C.W.H., 465 N.J. Super. 574, 592-96 (App. Div. 2021), we
found plain error where the interviewing detective testified on three occasions
that the defendant's denials were "very weak" and "they were some of the
weakest denials I've seen in an interview." The detective also stated "this" was
a "textbook interview of somebody being deceptive throughout the . . . entire
interview." Id. at 592. We concluded the detective's testimony "clearly
conveyed the impression to the jury that defendant was being deceptive during
questioning, [and] impermissibly colored the jury's assessment of defendant's
credibility." Id. at 595.
That is not the case here. In fact, Detective Romano's statement that
defendants told him a "lot of different stories" was not an impermissible
observation because, as a factual matter, they did tell different stories when
questioned about the incident, as evidenced by their interview statements.
To the extent the detective indicated Jason was "essentially lying" to him
for over an hour, we discern no plain error in the admission of this testimony,
which, as noted, was elicited by the defense. Unlike the scenario in C.W.H.,
here the detective made a single reference to Jason "lying." Moreover, the
assistant prosecutor did not refer to defendants' "lies" in her summation. She
simply described "all the different versions of events" defendants gave, and
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"how at the end they don't match." This was fair comment on the evidence and
not improper. In addition, the detective's challenged testimony was limited to
Jason's insurance paperwork, not to the crimes themselves. Therefore, Detective
Romano's reference to defendants "lying" was not clearly capable of producing
an unjust result.
James's Point V Argument
We need not discuss at length James's contention that even if none of his
arguments separately warrants reversal of his conviction, he has established
cumulative error to justify reversal.
A defendant is not entitled to a perfect trial. Wakefield, 190 N.J. at 537.
Only when "legal errors are of such magnitude as to prejudice the defendant's
rights or, in their aggregate, have rendered the trial unfair," the defendant will
be entitled to a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954). Suffice it
to say, because James failed to demonstrate harmful error under Points I through
IV, we discern no cumulative error warranting reversal. See State v. Weaver,
219 N.J. 131, 155 (2014).
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Jason's and James's Point VI Arguments
Finally, defendants argue their sentences are excessive. Jason contends
his fifteen-year prison sentence is excessive because the judge failed to utilize
the correct sentencing range when imposing an extended sentence; James argues
his fifteen-year term is excessive because the judge double-counted aggravating
factors. James also points to the jury's acquittal on the robbery charge and
contends the judge erred in not finding the mitigating factor that James did not
contemplate serious harm to Hessian. Further, James argues the judge erred in
not considering Kirkpatrick's limited jail sentence during James's sentencing.
None of these arguments are persuasive.
In reviewing a sentencing determination, we must determine whether the
findings of fact on the aggravating and mitigating factors were based on
competent and credible evidence in the record, whether the judge applied the
correct sentencing guidelines enunciated in the Code, and whether the
application of the facts to the law constituted such an error of judgment as to
shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984).
Here, the judge sentenced Jason to an extended term; but he first found
Jason was a persistent offender, noting Jason was thirty-nine when he committed
his crimes, had six prior convictions, and his latest conviction was well within
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ten years of his present offenses. Similarly, the judge deemed James a persistent
offender and eligible for an extended-term sentence because he was thirty-nine
when the offenses were committed, had nine prior convictions, including two
aggravated assault convictions, and James's most recent conviction was within
the requisite ten-year period.
In his aggravating and mitigating factor analyses, the judge found
aggravating factors two (gravity and seriousness of harm inflicted), three (risk
of re-offense), six (criminal history), nine (need to deter), and twelve (the
offense was against a person the defendant knew or should have known was
sixty years of age or older, or disabled), N.J.S.A. 2C:44-1(a)(2), (3),(6) (9) and
(12), applied to each defendant. Further, the judge determined no mitigating
factors applied.
During his aggravating and mitigating factor analysis at Jason's
sentencing, the judge found Jason knew or should have known Hessian was
particularly vulnerable due to his physical and psychological disability;
aggravating factor three applied because Jason "began his criminal career
immediately upon turning [eighteen] and really hasn't let up, despite stints both
in . . . [p]rison" and the county jail, as well as "probation supervision";
aggravating factors six and nine were implicated because of Jason's lengthy
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criminal record and the need to deter him; and aggravating factor twelve applied
because Jason knew Hessian was disabled. Further, the judge found there were
"no mitigating factors," "this was a particularly cruel case," and Hessian was left
"alone in his apartment after [defendants] beat[] him for a small amount of
money." Additionally, the judge determined, "[t]his was clearly a plan between
three individuals and they executed that plan." The judge stated he was "clearly
convinced that the aggravating factors . . . substantially outweigh the [non-
existent] mitigating factors."
When the judge examined the aggravating and mitigating factors
applicable to James, his analysis was similar. But at James's sentencing, the
judge gave aggravating factors two and twelve "significant weight." Further, he
declined to find any mitigating factors, including mitigating factor two, as James
requested, stating, "[w]hen you engage in a conspiracy and a plan to rob
someone, I cannot find that this defendant did not intend for harm to result . . . .
[T]he harm that resulted lies at the feet of both co-defendants." Also, the judge
stated he was "clearly convinced . . . the aggravating factors . . . very
substantially outweigh[ed] the [non-existent] mitigating factors."
Upon application of the prosecutor, a trial court may impose an extended
term on persons convicted of crimes of the first, second, or third-degree if it
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finds the defendant is a persistent offender. N.J.S.A. 2C:44-3(a). Once the
criteria for a persistent offender are met, "the range of sentences, available for
imposition, starts at the minimum of the ordinary-term range and ends at the
maximum of the extended-term range." State v. Pierce, 188 N.J. 155, 169
(2006). Therefore, a persistent offender convicted of a second-degree crime,
such as aggravated assault, may be sentenced to an extended term of between
ten and twenty years. N.J.S.A. 2C:43-7(a)(3). The choice of a sentence within
that range is within the trial court's "sound judgment," and will be reviewed for
an abuse of discretion. Pierce, 188 N.J. at 169-70.
If the trial court decides to impose an extended sentence, it must weigh
the aggravating and mitigating factors to determine the base term of the extended
sentence, and then whether to impose a period of parole ineligibility. State v.
Dunbar, 108 N.J. 80, 88-89 (1987). In deciding whether to impose a parole
ineligibility period on an extended term, the court must be "clearly convinced
that the aggravating factors substantially outweigh the mitigating factors." Id.
at 92 (quoting N.J.S.A. 2C:43-6(b)).
Jason argues the court incorrectly viewed the sentencing range as ten to
twenty years, although it actually was five to twenty years, consistent with the
holding in Pierce. We are not convinced.
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Before the judge sentenced Jason, he stated Jason was
clearly eligible for sentencing as a persistent offender
pursuant to [N.J.S.A.] 2C:44-3(a). The State's motion
for an extended term as to Count [Two], second-degree
aggravated assault, is granted. And pursuant to
[N.J.S.A.] 2C:43-7(a)(3), the defendant will be
sentenced to Count [Two] within the first-degree range
of [ten] to [twenty] years. And I will sign the order to
that effect.
[(Emphasis added).]
After granting the State's extended-term motion, the judge balanced the
State's request for a seventeen-year sentence on Jason's aggravated assault
conviction against defense counsel's request for a lower term. In that vein, both
Jason's attorney and the judge cited Pierce. As the sentencing progressed,
defense counsel conceded Jason had "the opportunity to plea bargain this
case . . . to a [five]-year sentence," but given the jury's verdict, "the
sentencing . . . will be in [the court's] hands." Importantly, Jason's attorney also
stated, "I think the low end of the first-degree [range] would be more than
appropriate to sentence him to under all of the circumstances of this particular
case. So, that’s my position for you." (Emphasis added).
The record also reflects that at Jason's sentencing, the judge stated,
the extended[-]term range . . . on a second-degree
[offense] is elevated to [ten] to [twenty] years . . . .
[with t]he methodology to be employed []as set forth
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originally in . . . Dunbar, 108 N.J. at 80 . . . and . . .
modified by the Supreme Court in . . . Pierce, 188 N.J.
at 155.
[(Emphasis added).]
He subsequently found Jason should "be sentenced [on] Count 2 within the first-
degree range of [ten] to [twenty] years," and that a fifteen-year term was
appropriate because the "second-degree offense [was] treated as a first-degree
offense for purposes of sentencing." (Emphasis added).
Under these circumstances, where Jason's attorney did not argue for a
sentence below ten years but argued in favor of the "low end of the first-degree
[range]," the judge found the aggravating factors substantially outweighed the
non-existent mitigating factors, and nothing in the record suggests the judge was
unaware a sentence below ten years was permissible, the judge's imposition of
a fifteen-year sentence was not an abuse of discretion.
Regarding James's excessive sentence argument, he claims the court
improperly double-counted aggravating factors when finding aggravating
factors two and twelve, despite that both factors cover the vulnerability of the
victim. However, these factors are not identical. N.J.S.A. 2C:44-1(a)(2) refers
to a victim's injuries, in part, and covers the "gravity and seriousness of the harm
inflicted on the victim, including whether or not the defendant knew or
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reasonably should have known that the victim of the offense was particularly
vulnerable or incapable of resistance due to . . . ill-health." But N.J.S.A. 2C:44-
1(a)(12) is applicable when the defendant "knew or should have known" the
victim "was . . . disabled." James cites to no authority, nor are we aware of any,
precluding a judge from finding both factors. Moreover, here, considering
Hessian's circumstances and the nature of the assault against him, the judge's
finding of these factors is amply supported by the record.
James also argues the judge erred in finding aggravating factors three and
six. This argument is completely devoid of merit. R. 2:11-3(e)(2). Further,
James contends the judge improperly considered his criminal record to sentence
him as a persistent offender. He cites State v. Vasquez, 374 N.J. Super. 252,
269-70 (App. Div. 2005), where we held the trial court erred in sentencing the
defendant to an extended term after finding aggravating factors "that arguably
go beyond defendant's criminal record." James's argument is misplaced.
As the Court explained in State v. Tillery, 238 N.J. 293, 327-28 (2019),
no error is committed by the trial court when relying on the defendant's criminal
record both to determine the defendant was a persistent offender and to support
the findings of aggravating factors three and six. See also State v. McDuffie,
450 N.J. Super. 554, 576-77 (App. Div. 2017) (rejecting the defendant's claim
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the sentencing court impermissibly doubled-counted his criminal record when it
granted the State's motion for a discretionary extended term, and again when
imposing aggravating factor six).
Next, James argues the judge erred in not finding mitigating factor two,
i.e., that James did not contemplate serious harm. He cites his acquittal on the
robbery charge to support his argument. However, James's argument ignores he
was found guilty of aggravated assault, which necessarily involved causing
bodily injury. Therefore, his argument lacks merit. R. 2:11-3(e)(2).
Finally, James contends the judge erred in finding Kirkpatrick's one-year
sentence "irrelevant" to the sentencing determination. Citing State v. Hicks, 54
N.J. 390, 391-92 (1969), James maintains the leniency Kirkpatrick received at
sentencing should have resulted in James receiving a more lenient sentence.
Again, we disagree.
In Hicks, the Court noted "grievous inequities in sentences destroy a
prisoner's sense of having been justly dealt with, as well as the public's
confidence in the even-handed justice of our system." Id. at 391. But it also
recognized "a sentence of one defendant not otherwise excessive is not
erroneous merely because a codefendant's sentence is lighter." Ibid. (citations
omitted). Also, the Court has instructed, when a court considers imposing
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disparate sentences, it "must determine whether the co-defendant is identical or
substantially similar to the defendant regarding all relevant sentencing criteria."
State v. Roach, 146 N.J. 208, 233 (1996).
Here, James fails to demonstrate he and Kirkpatrick were "substantially
similar" regarding all relevant sentencing criteria. For instance, Kirkpatrick was
convicted of a less serious offense. He also cooperated with the State to secure
the benefit of his plea bargain, so he was entitled to a finding of mitigating factor
twelve, N.J.S.A. 2C:44-1(b)(12); this was not the case for James, who chose to
proceed to trial, as was his right. Moreover, there is no evidence Kirkpatrick
had a criminal history akin to James's lengthy criminal record. Therefore, we
cannot conclude the judge erred by disregarding Kirkpatrick's sentence when he
sentenced James.
In sum, we perceive no basis to disturb defendants' convictions or
sentences. To the extent we have not addressed defendants' remaining
contentions, we are persuaded they lack sufficient merit to warrant discussion
in this opinion. R. 2:11-3(e)(2).
Affirmed.
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