STATE OF NEW JERSEY VS. STERLING C. SPENCE STATE OF NEW JERSEY VS. MAURICE BURGESS (13-01-0083 AND 17-08-1760, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3652-18T3
A-4134-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STERLING C. SPENCE, a/k/a
STERLING SPENCE JR.,
Defendant-Appellant.
__________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE BURGESS, a/k/a
MAURICE DE'ANDRE
BURGESS, MAURICE
BURGES, and MOE,
Defendant-Appellant.
__________________________
Submitted December 7, 2020 – Decided December 23, 2020
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment Nos. 13-01-0083
and 17-08-1760.
Joseph E. Krakora, Public Defender, attorney for
appellant Sterling C. Spence (Michele A. Adubato,
Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for
appellant Maurice Burgess (Frank M. Gennaro,
Designated Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John J. Lafferty, IV, Assistant
Prosecutor, of counsel and on the brief).
Appellant Sterling Spence filed a pro se supplemental
brief.
PER CURIAM
In these back-to-back appeals, which we have consolidated for purposes
of this opinion, Sterling Spence (Spence) and Maurice Burgess (Burgess)
(collectively defendants) appeal from multiple convictions related to the murder
of DeVonte Molley (the victim), which took place in the course of a robbery of
the victim at an Atlantic City hotel (the Hotel). We affirm as to both defendants.
On December 21, 2015, the victim, Burgess, and an acquaintance were staying
in a room at the Hotel which was registered to the victim. The victim and Burgess
sold heroin out of the room and occasionally left to facilitate sales. That night,
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Burgess texted Charles Wynn1 (Wynn) to ask if he knew anyone who wanted to
purchase heroin. Wynn called Spence to ask if he personally had any drugs to sell.
Spence contacted Burgess, who told Spence to search the dresser in the Hotel room
to retrieve more drugs to sell.
Spence and Wynn entered the Hotel and went to the eighth-floor stairwell so
that the manager would not see the them moving drugs and call the police. Burgess
let them into the Hotel room and then left to sell drugs. The victim was asleep on
the couch when Spence and Wynn entered. Wynn went into the bedroom to check
the dresser drawer for drugs while Spence went to the bathroom.
As Spence exited the bathroom, he saw the victim walking towards the
bedroom with a gun. Spence called out to the victim to let him know that he and
Wynn were in the Hotel room, and then the victim turned towards Spence and
pointed the gun at him. Spence slapped the gun out of the victim's hand, resulting
in both the victim and Spence struggling for control over the gun. The gun
discharged while the victim and Spence were struggling for the gun and Spence was
attempting to turn the gun away. The victim fell to the ground, and both Spence and
Wynn fled.
1
Charles Wynn is also a co-defendant. The three were tried together, however,
Wynn is not participating in this appeal.
A-3652-18T3
3
Police responded to the scene and found the victim, who was still alive, lying
on the floor of the lobby with a gunshot wound. A bystander (the bystander),
attempted to administer medical assistance to the victim but was unsuccessful. An
autopsy later determined that the victim died from a gunshot wound to the lower
abdomen on his right side. Police interviewed the bystander within twenty-four
hours of the incident. Police also found heroin, a digital scale, an LG cellphone, and
a nine-millimeter shell with a "Luger" stamp in the Hotel room. Surveillance footage
showed an individual holding the door open for Spence and Wynn and remaining in
the room for a little over one minute. After that time, the three men quickly exited
the room and went to the elevator, later followed by the victim, who exited the room
holding his stomach. Utilizing a photo array and a photo from a Facebook page of
"Mo Humble," officers were able to identify Burgess exiting the hotel room.
On December 23, 2015, police conducted surveillance of Burgess outside a
Motel (the Motel). Burgess exited the Motel and entered a vehicle driven by Spence.
Police followed the vehicle to a McDonald's where they arrested the defendants.
During the course of the arrest, a Cricket cellphone fell to Burgess's feet. Spence
informed the police that there were two phones in the vehicle; one was his own LG
flip phone, and the other belonged to his cousin Burgess.
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Forensic examination of the cell phones revealed that on the night of
December 21, 2015, Spence and Burgess exchanged more than twenty text
messages. The messages contained such information as "everything still a go?"
"Yeah, he asleep"; "What's the room number?"; "Little bit of work in the dresser.
IDK where the rest is, but I know it's bread in here besides his pockets."; "How far?"
"Bout to pull up."; "Search everything and make him get the rest of the bread."; "Hit
me when on the floor." The last text message coincided with the arrival of Spence
and Wynn to the Hotel, and Burgess letting the two into the room.
During plea negotiations, Spence certified that he "entered the room to steal
money and drugs . . . [when the victim] woke up waving a gun and screaming."
Spence explained that when he "tried to disarm [the victim] . . . the gun went off,"
but denied planning to rob the victim or entering the victim's room with a weapon.
All three defendants were tried together, and each testified. Burgess
testified that the text messages were all related to the preparation and supply of
drugs for sale, not a scheme to rob the victim.
Wynn testified Burgess suggested that the two could make money selling
drugs. He further testified that when he entered, he did not have an intent to
steal anything, but once inside, the opportunity arose. He testified that he was
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unarmed and saw no gun. While he was in the bedroom checking the dresser,
he heard a gunshot. He and Spence then ran.
Spence testified that he went with Wynn to the room to sell drugs. He
testified that when Burgess let him and Wynn into the room, neither was armed
and the victim was asleep. He testified that the text messages he exchanged with
Burgess related to drug dealing. When they arrived, the victim awoke and
produced a gun, which fired during a struggle between he and Spence.
The jury found Spence guilty of two counts of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3), one count of second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b)(1), and one count of second-degree certain person
not to have a weapon because of a prior conviction, N.J.S.A. 2C:39-7(b)(1). The
judge sentenced Spence to an aggregate sentence of fifty years with an 85%
parole ineligibility and five years parole supervision pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-
6.
The jury found Burgess guilty of two counts of first-degree felony murder,
N.J.S.A. 2C:11-3(a)(3), one count of first-degree armed robbery, N.J.S.A.
2C:15-1(a)(3), one count of second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b), and one count of second-degree possession of a firearm for
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an unlawful purpose, N.J.S.A. 2C:39-4(a). In a separate proceeding, the judge
found Burgess guilty of one count of second-degree certain persons not to have
a weapon because of a prior conviction, N.J.S.A. 39-7(b). The judge sentenced
Burgess to an aggregate sentence of fifty years with 85% parole ineligibility
pursuant to NERA, a concurrent term of eight years for unlawful possession of
a handgun, a concurrent term of seven years for certain persons not to have
firearms, and a concurrent term of four years for violation of a probationary
sentence imposed in 2013.
On appeal, Spence raises the following arguments for this court's
consideration:
POINT I
[SPENCE'S] MULTIPLE MOTIONS FOR MISTRIAL
ON THE BASIS OF PROSECUTORIAL
MISCONDUCT SHOULD HAVE BEEN GRANTED
SINCE [SPENCE'S] RIGHT TO A FAIR TRIAL WAS
VIOLATED.
POINT II
IT WAS AN ABUSE OF DISCRETION FOR THE
[JUDGE] TO REFUSE TO ADMIT THE
[BYSTANDER'S] STATEMENT CONCERNING THE
VICTIM'S DYING DECLARATION.
A-3652-18T3
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POINT III
THE REFUSAL OF THE [JUDGE] TO ADMIT
PHOTOGRAPHS OF THE VICTIM BRANDISHING
FIREARMS WAS ERROR WHICH DEPRIVED
[SPENCE] OF A FAIR TRIAL.
POINT IV
CONDUCT BY THE PROSECUTOR IN
QUESTIONING WITNESSES AND COMMENTS HE
MADE DURING SUMMATION WERE GROSSLY
PREJUDICIAL AND DEPRIVED [SPENCE] OF A
FAIR TRIAL.
POINT V
THE TRIAL [JUDGE] ERRED IN NOT INSTRUCTING
THE JURY SUA SPONTE ON SELF-DEFENSE AS IT
RELATED TO THE LESSER-INCLUDED OFFENSES
OF MANSLAUGHTER[.]
POINT VI
THE DENIAL OF [SPENCE'S] MOTION TO
SUPPRESS WAS ERROR.
POINT VII
THE FIFTY . . . YEAR NERA SENTENCE IMPOSED
UPON [SPENCE] WAS EXCESSIVE AND SHOULD
BE REDUCED.
POINT VIII
THE ERRORS, EITHER SINGLY OR IN THE
AGGREGATE, DENIED [SPENCE] OF A FAIR TRIAL.
A-3652-18T3
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In his pro se brief, Spence raises the following arguments on appeal, which
we have renumbered:
[POINT IX]
THE TRIAL [JUDGE] VIOLATED [SPENCE'S]
SIXTH AND FOURTEENTH AMENDMENT
RIGHTS TO HAVE A FAIR TRIAL AND DUE
PROCESS BY ALLOWING THE STATE TO
VIOLATE CONDITIONS OF THE BRUTON [2]
MOTION THAT WAS AGREED UPON BY ALL
PARTIES.
[POINT X]
THE TRIAL [JUDGE] COMMITTED REVERSIBLE
ERROR WHEN INSTRUCTING THE JURORS ON
FLIGHT CHARGES AFTER AGREEING NOT TO
DO SO ON BOTH SIDES, BECAUSE OF THE
PREJUDICIAL [E]FFECTS ON THE DEFENDANTS.
On appeal, Burgess raises the following arguments for this court's
consideration:
POINT I
[BURGESS] WAS ENTITLED TO JUDGMENTS OF
AQUITTAL ON THE ROBBERY AND FELONY
MURDER COUNTS.
2
Bruton v. United States, 391 U.S. 123 (1968).
A-3652-18T3
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POINT II
THE TRIAL [JUDGE] IMPROPERLY EXCLUDED
OTHER CRIMES EVIDENCE OFFERED BY THE
DEFENDANTS.
POINT III
THE PROSECUTOR'S COMMENTS DURING
SUMMATION DENIED [BURGESS] A FAIR TRIAL.
POINT IV
THE SENTENCE OF [FIFTY] YEARS IN PRISON,
SUBJECT TO THE NO EARLY RELEASE ACT, IS
EXCESSIVE.
I.
Defendants both maintain that several comments made by the prosecutor
on summation denied them a fair trial, the trial judge abused her discretion by
excluding photographs of the victim, and that their fifty-year sentences are
manifestly excessive. We will discuss each of these overlapping arguments in
turn.
A.
Defendants argue that several comments made by the prosecutor during the
State's summation denied them a fair trial. Spence specifically argues that the judge
erred in denying his motion for mistrial on this ground. Burgess made no such
A-3652-18T3
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motion, but nevertheless takes issue with the same comments about defendants and
defense counsel and an additional comment about a fact allegedly not in evidence.
The decision to grant or deny a motion for mistrial is "within the sound
discretion of the trial judge[.]" State v. DiRienzo, 53 N.J. 360, 383 (1969). "The
grant of a mistrial is an extraordinary remedy to be exercised only when necessary
'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397 (2011)
(quoting State v. Harvey, 151 N.J. 117, 205 (1997)). Therefore, this court will not
"reverse a trial [judge's] denial of a mistrial motion absent a 'clear showing' that 'the
defendant suffered actual harm' or that the [judge] otherwise 'abused its discretion.'"
Ibid. (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)).
A prosecutor must ensure that their "remarks and actions [are] consistent with
his or her duty to ensure that justice is achieved." State v. Ribalta, 277 N.J. Super.
277, 293 (App. Div. 1994). If a prosecutor's conduct does not conform with this
expectation, the court's inquiry does not end; such misconduct "is not ground for
reversal of a criminal conviction unless the conduct was so egregious that it deprived
defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987). This requires
us to 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 [judge] ordered the remarks stricken from the record and instructed the
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jury to disregard them." State v. Frost, 158 N.J. 76, 83 (1999). We presume that the
jury followed any limiting instructions that the judge provided. State v. Loftin, 146
N.J. 295, 390 (1996).
Our court recognizes that "[p]rosecutors are afforded considerable leeway in
[summations] as long as their comments are reasonably related to the scope of the
evidence." State v. Cole, 229 N.J. 430, 457 (2017) (first alteration in original)
(quoting Frost, 158 N.J. at 82). They can "strike hard blows . . . [but not] foul ones."
State v. Echols, 199 N.J. 344, 359 (2009) (alterations in original) (quoting State v.
Wakefield, 190 N.J. 397, 436 (2007)). It is just as much the prosecutor's duty "to
refrain from improper methods calculated to produce a wrongful conviction as it is
to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99,
105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).
When a criminal defendant chooses to testify, they are "not simply another
witness." State v. Daniels, 182 N.J. 80, 97 (2004). Although testifying witnesses
are typically susceptible to attacks on their credibility, "[p]rosecutorial comment
suggesting that a defendant tailored his testimony . . . permit[s] the prosecutor to
punish the defendant for exercising that which the Constitution guarantees." Id. at
98.
A-3652-18T3
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"A tailoring allegation is a claim that a witness has adapted his testimony to
conform to other evidence that has been produced during a trial." State v. Feal, 194
N.J. 293, 305 (2008). Claiming that a defendant tailored his or her testimony to
conform to the facts testified by other witnesses is a violation of the defendant's
constitutional rights as it undermines a defendant's right to a fair trial. Daniels, 182
N.J. at 97-98. Prosecutors are prohibited from making general accusations of
tailoring, or attacks against the defendant's credibility in the absence of any "specific
evidentiary basis that defendant has tailored his testimony[.]" Id. at 98. A
prosecutor, however, may make specific allegations of tailoring, but in a limited
fashion. Id. at 98-99. "The prosecutor's comments must be based on the evidence
in the record and the reasonable inferences drawn therefrom." Id. at 99. It is
impermissible for a prosecutor to explicitly "reference the defendant's attendance at
trial or his ability to hear the testimony of preceding witnesses" as the basis for
defendant's ability to tailor his testimony. Ibid. Moreover, it is improper for a
prosecutor to cast aspersions on defense counsel. Frost, 158 N.J. at 86; State v.
Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008).
Defendants take issue with three separate remarks in the State's summation
which touch on defendants' and defense counsel's presentation and alleged tailoring
A-3652-18T3
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of evidence. First, defendants challenge the prosecutor's remarks that the defense
has presented no evidence:
So there are not other messages that were left off those
pages because they explain that this was really all about
drugs and not about a robbery. Do you know how you can
be confident? Because the attorneys had the exact same
discs. They could have made any report they wanted.
They could have picked out any test they wanted to that
supported their arguments, that showed what this was all
about, that showed that this was just a big
misunderstanding and that flames actually means Bic
lighters or whatever, but they didn't show you that because
it doesn't exist.
Second, defendants challenge the prosecutor asserting that the defendants
were attempting to tailor their testimony to the evidence at trial:
What you heard last week was three people who made a
conscious choice in 2015 to participate in these events and
are now trying to avoid the consequences. The evidence
is not consistent with their testimony. They molded their
testimony to try to fit the evidence that you saw two weeks
ago. And, ultimately, the pieces that they submit through
their testimony, through their story, just doesn't fit.
Third, defendants challenge the prosecutor's comments about defendants and
defense counsel:
Plan B is, I suggest to you, an invention of the defendants
and their attorneys trying to account for why these guys
were really snooping around a sleeping man's room.
....
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So [Spence's counsel] said yesterday that Spence testified
because he wanted to tell you the truth, and in a few
minutes I think I'm going to be able to prove that that's
quite the opposite. But, first, we know that back in 2017.
. . Spence wrote a letter that tells a pretty different story
than he told you on Friday. So this is another piece to the
puzzle that they introduced that doesn't really fit. In that
letter he mentioned nothing about selling drugs or being
friends with [the victim] or Trenton guys or seeing [the
victim] walk to the bedroom. Instead he says that [the
victim] woke up waving a gun and screaming.
So why should we accept that he wanted to tell you the
truth on Friday when two years ago he certified that that
was the truth? Back then he admitted that all three men
were in on this plan to sneak into the room and steal [the
victim's] stuff. That's illegal, too. It's called a burglary,
and that can also be the basis for felony murder.
So Spence told us on Friday that that letter wasn't true, that
they were not there to steal. His attorney seemed to
disagree, because they're the ones who kind of keep
referring to Plan B. In fact, one person even said -- they
acknowledged that maybe Plan B was actually Plan A.
They even go so far as instructing you, I know at least two
of the attorneys did, I don't know if three did, instructing
you to convict of attempted theft.
Spence's defense counsel objected and moved for a mistrial. Counsel took
issue with the prosecutor accusing defense counsel of "sinisterly characteriz[ing]
evidence" and "trying to distort the evidence." Counsel also objected to the
prosecutor attempting to "put[] the burden on the defense, saying the defense had
two years to present this evidence that would have helped their case, knowing that
A-3652-18T3
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[defendants] don't have a constitutional obligation to do anything." Finally, counsel
argued against the prosecutor "say[ing] that . . . these stories were the invention of
the defendants and their attorneys, implying that the defense attorneys deliberately
commit[ted] legal malpractice, enter[ed] into unethical conduct, and coached their
defendants to provide testimony that isn't true." The judge denied the motion and
stated that she would instruct the jury that "they're only to consider the . . . testimony
and the evidence and the law that [she] give[s] them."
Defendants also contend the prosecutor made improper comments regarding
the trajectory of the bullet that killed the victim. Defendants maintain that since the
medical examiner offered no opinion on the trajectory of the bullet, the prosecutor's
opinion as to how it could or could not have been fired is an improper expert opinion,
which was not based upon the facts in evidence. See State v. Papasavvas, 163 N.J.
565, 616 (2000) (noting that while a prosecutor may present to the jury the State's
theory of the case, the presentation will constitute prosecutorial misconduct if it
draws reasonable inferences from evidence not adduced at trial).
The medical examiner described the path of the bullet as follows:
The bullet traveled right to left, front to back and
downwards. It passed through the abdominal cavity. It
did not strike any of the intestines or organs of the
abdomen. It passed through a large artery and vein called
the iliac artery and vein. The main artery in the body is
the aorta -- that's the largest one. It branches as it goes
A-3652-18T3
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down to the right and left iliac arteries, one goes to the
right side, one goes to the left. And it passed through the
left iliac artery and vein and then I followed the path up
further and I found a jacketed bullet from the tissues near
the top of the femur, the thigh bone, on the left.
The prosecutor commented the following:
And trust [the victim]. Trust his body. His body contains
evidence that he was shot from somewhat of a distance and
from above. His body, his wound, is evidence that
[defendants'] version and the defense's version is not
physically possible. And he can't be here to testify and tell
us himself, but that wound you can take as evidence.
Defense attorneys can say whatever they want, and they
have, about the way that [the victim] chose to make his
way in the world, but his body can't lie. It can't exaggerate.
The wound can't downplay things or exaggerate things.
It's physical evidence. It's evidence that I submit will
leave you firmly convinced that this was not just some big
misunderstanding. It's evidence that will leave you firmly
convinced that these three men knew exactly what they
were doing that night. They knew the risks involved, and
they did it anyway. Evidence that will leave you firmly
convinced that these three men are responsible for that one
gun, that one bullet, this one death. Choices and
consequences.
Spence's defense counsel again objected to the prosecutor "offer[ing] expert
testimony in his closing" which was not borne out by examination or cross-
examination, suggesting that the "shooting could not have happened in the way that
the defendant said it did," and moved for a mistrial. The judge provided the jury a
A-3652-18T3
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limiting instruction "as to some of the items that [defense counsel] raised with
respect to expert testimony."
None of the above passages rise to the level of prosecutorial misconduct that
could not be cured with a proper limiting instruction. The comments about defense
counsel tailoring are improper, as the prosecutor may not attack defense counsel's
credibility in this manner. See Frost, 158 N.J. at 86. However, because the
prosecutor only directly a single comment towards counsel, a limiting instruction
could cure any perceived prejudice. The comments about defendants' tailoring also
are not fatal here. The prosecutor did not make a generic tailoring accusation, nor
did he allege that defendants tailored their testimony based on their ability to hear
preceding witnesses' testimony at trial. See Daniels, 182 N.J. at 99.
The judge provided a limiting instruction that addressed each of the allegedly
improper statements:
Now you've heard all of the evidence, and I do -- I want to
give you a couple instructions right now based upon what
you just heard in the State's summation. I'm going to ask
you and tell you that you need to disregard any comments
relative to the defense attorneys. So, in other words, any
comments that were made as to the preparation by the
defense attorneys as to their client should not pay -- or you
should not give that any consideration in your
deliberations. That should go out of your mind and that's
not to play any part in your deliberations.
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You can consider the defendants themselves, their
testimony and their credibility and what weight you give
that is something that the jury can decide. But, again, any
comments made about the attorneys themselves doesn't
play any part in your deliberations. Does everybody
understand that? Yes. Okay.
Also, you heard comments in summation that the defense
did not show you certain things, whether it was video or
otherwise. I have to tell you and I'm going to give you a
complete instruction on this, but I just want to tell you
right now so it's fresh in your mind that the defendants do
not have any obligation to present any proof as to their
innocence. That burden is on the State. They have to
prove each and every element of the charged beyond a
reasonable doubt. That never transfers to the defendants,
so they don't have any obligation. And, again, I'm going
to give you a complete instruction on that, but does
everybody understand that?
We presume that the jury followed the limiting instructions and did not
consider the statements made by the prosecutor for any improper purpose. Loftin,
146 N.J. at 360. The statements do not amount to prosecutorial misconduct, defense
counsel made timely objections to each statement, and the judge provided adequate
limiting instructions to remove any potential prejudice. A mistrial was therefore not
warranted, and the judge did not err in denying Spence's motion. It follows that
Burgess was not denied a fair trial based on these same statements.
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Burgess also maintains that the prosecutor's reference to Urban Dictionary3 to
define the term "flame" during summation was improper. He specifically alleges
that the definition was a fact not in evidence. In reference to one of Burgess's text
messages, the prosecutor noted that defendants claimed that "flames" referred to
heroin, and then quoted from Urban Dictionary, which he claimed defined the term
"flames" as a handgun. The record reveals—and the State does not dispute—that it
was not a fact in evidence. The State maintains, however, that it was only responding
to an argument made by Burgess's defense counsel during summation.
The judge noted that because defense counsel had used a different Urban
Dictionary definition, despite it not being a fact in evidence, it was only fair to allow
the State to respond. The judge emphasized that the comments were not evidence.
The judge reiterated, upon defense counsel's request for a limiting instruction, "I
gave a limiting instruction that [the jury is] not to consider anything that wasn’t in
evidence so . . . I've done that." Such instruction was sufficient to remove any
prejudice, especially where both parties were given the opportunity to speak on the
same fact. See State v. Murray, 338 N.J. Super. 80, 88 (App. Div. 2001) (noting that
courts should consider "the context in which the challenged [comments] were made,
3
Urban Dictionary is a crowd-sourced, unpublished online dictionary for slang
words and phrases.
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determining whether the remarks were a measured response to defendant's
summation made in an attempt to 'right the scale'"). Burgess was not denied a fair
trial on this ground.
B.
We next address defendants' argument that the trial judge erred by excluding
photographs of the victim holding firearms. Defendants argue that the victim's
potential access to firearms was material and relevant to the defense theory that the
victim was armed at the time of the incident.
"A trial [judge]'s evidentiary rulings are 'entitled to deference absent a
showing of an abuse of discretion[.]" State v. Brown, 170 N.J. 138, 147 (2001)
(quoting State v. Marrero, 148 N.J. 469, 484 (1997)). We may not "substitute [our]
own judgement for that of the trial [judge], unless the trial [judge]'s ruling was so
wide of the mark that a manifest denial of justice resulted." Ibid. (quoting Marrero,
148 N.J. at 484).
Evidence is relevant if it has "a tendency in reason to prove or disprove any
fact of consequence to the determination of the action." N.J.R.E. 401. In making
this determination, the trial judge "should focus on the logical connection between
the proffered evidence and a fact in issue," and "whether the [evidence offered]
'renders the desired inference more probable than it would be without the evidence.'"
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State v. G.V., 162 N.J. 252, 263 (2000) (alteration in original) (quoting State v.
Davis, 96 N.J. 611, 619 (1984)).
Evidence that is relevant may still be excluded. N.J.R.E. 403 permits a trial
judge to exclude evidence "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 judge "has broad discretion to exclude evidence as unduly prejudicial pursuant
to N.J.R.E. 403." State v. Jackson, 243 N.J. 52, 65 (2020) (quoting State v.
Nantambu, 221 N.J. 390, 402 (2015)).
The trial judge initially examined the two photographs and noted that, acting
as a layperson, she "[could not] tell what portion of the rifle [was visible]" or "if it
is even a rifle in either photograph." Although defense counsel asserted that the
photographs could be authenticated by Officer Yeates, who extracted the pictures
from the victim's phone, the judge was still concerned that he would be unable to tell
whether the photograph was taken by the victim himself or by another person in the
room. The judge noted that in one photograph she could see one hand, suggesting
that the photo may have been taken by the victim, but the other photograph she did
not see either hand, making it unclear whether the victim or someone else took the
photograph.
A-3652-18T3
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Defense counsel also explained that because the photographs of the victim
allegedly holding firearms did not have a timestamp, the November 26, 2015
timestamp provided was an estimated date based on those photographs' vicinity to
other photographs found on the victim's phone. Based on the alleged timestamp,
these photographs are nearly a month old, and do not depict a handgun the defendant
alleged that the victim had on his person the day of the incident.
The judge explained her N.J.R.E. 403 analysis, and repeated her concerns that
the photographs could not be properly authenticated, and even if they could, they
may confuse the jury:
Clearly, again, as has been argued by the defense, they do
not know the date, again, of the photograph. They do not
know who took the photograph. Even if it were to come
in and they could authenticate it and there was a
foundation laid, there's no other information that the jury
is going to be provided. They're going to be given two
photographs purporting to be the victim holding some type
of item, possibly two different items, and that's really all
they're going to know.
For these reasons, the trial judge excluded the photographs, determining that
"even the relevancy and probative value is substantially outweighed by the risk of
undue prejudice, but more so confusion of issues and misleading the jury." As such,
we conclude that the trial judge did not abuse her discretion by excluding the
photographs.
A-3652-18T3
23
C.
We now address defendants' argument that their sentences are manifestly
excessive. The judge sentenced both Spence and Burgess to fifty-year aggregate
sentences subject to NERA. In addition to his excessive sentence argument, Spence
maintains that the judge erred by not considering four mitigating factors when
imposing his sentence and that she wrongly stated that she was "required to impose
a sentence at the higher end of the sentencing range." Burgess also contends that
trial judge erred by failing to consider the real-time consequences of NERA when
imposing his sentence.
We review the trial judge's sentencing decision for an abuse of discretion.
State v. Blackmon, 202 N.J. 283, 297 (2010). We will not disturb a trial judge's
sentence unless it is manifestly excessive or unduly punitive. State v. O'Donnell,
117 N.J. 210, 215-16 (1989). We will consider "whether the trial [judge] . . . made
findings of fact that are grounded in competent, reasonably credible evidence and
whether 'the factfinder [has] appl[ied] correct legal principles in exercising its
discretion.'" Blackmon, 202 N.J. at 297 (third and fourth alterations in original)
(quoting State v. Roth, 95 N.J. 334, 363 (1984)).
In reviewing a sentence, "[a]n appellate court is not to substitute its assessment
of aggravating and mitigating factors for that of the trial court." State v. Bieniek,
A-3652-18T3
24
200 N.J. 601, 608 (2010). We will not set aside a sentence unless "(1) the sentencing
guidelines were violated; (2) the findings of aggravating and mitigating factors were
not 'based upon competent credible evidence in the record;' or (3) 'the application of
the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" State v.
Bolvito, 217 N.J. 221, 228 (2014) (quoting Roth, 95 N.J. at 364-65).
A trial judge "must identify any relevant aggravating and mitigating factors
set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220
N.J. 49, 64 (2014). The trial judge must then "determine which factors are supported
by a preponderance of evidence, balance the relevant factors, and explain how [her
or she] arrives at the appropriate sentence." O'Donnell, 117 N.J. at 215. The findings
supporting these factors "must be supported by competent, credible evidence in the
record." Case, 220 N.J. at 64.
As to Spence, the trial judge reviewed the record and found three aggravating
factors and no mitigating factors. The trial judge found aggravating factors three,
six, and nine, and gave significant weight to each. As to factor three, the trial judge
determined that Spence would likely commit another offense based on his "prior
record and his escalating violent lawlessness[.]" As to factor six, the trial judge
determined that "while [Spence's criminal record is] not lengthy, [it] does include a
prior gun related offense, as well as a CDS conviction." As to factor nine, the trial
A-3652-18T3
25
judge determined that "[t]here is a very strong need to deter [Spence] specifically . .
. from violating the law." This was because "[Spence] has now been convicted of
the most serious offense in the criminal code . . . . He needs to be deterred and others
need to know that violation of the law that results in the taking of a life, any life, will
meet with serious consequences and a serious sentence."
The trial judge did consider Spence's request that mitigating factor one apply,
but she declined to do so because "[t]he evidence at trial confirmed, and the jury
found that [Spence] undertook to rob the victim and that he possessed a gun during
the commission of that crime." This fact shows that to some extent, Spence
contemplated that some harm would come from his actions.
Spence argues that the trial judge should have considered mitigating factors
three and four during sentencing based on victim "brandish[ing] a gun at him and
[being] shot during a struggle" and that none of the aggravating factors warranted
"great weight." But the trial judge reviewed the record and found that none of the
mitigating factors applied to Spence's circumstances, and this court may not
"substitute [our] assessment of aggravating and mitigating factors for that of the trial
court." Bieniek, 200 N.J. at 608. It does not appear that the trial judge felt that she
was "required" to impose an upper-range sentence, but rather she was explaining
that based on finding only aggravating factors and no mitigating factors, it logically
A-3652-18T3
26
followed that she would impose a sentence in the upper range. The trial judge did
not impose an excessive sentence.
As to Burgess, the trial judge reviewed the record and found three aggravating
factors and no mitigating factors. The trial judge noted that Burgess had a "prior
record . . . and escalating lawlessness [which] shows that given the opportunity he
would reoffend," had a prior history which makes this his "third offense for gun
possession", and lesser forms of punishment have failed to deter him. Burgess was
arrested multiple times as a juvenile, including for robbery and unlawful possession
of a firearm, for which he served three years in a juvenile detention facility. The
trial judge also noted that Burgess had three convictions as an adult, including one
for third-degree burglary for which he received three years' probation. While on
probation, Burgess incurred new charges.
At sentencing, Burgess argued that the trial judge should have considered
numerous mitigating factors, such as the fact that he did not intend to cause or
threaten harm, that he did not contemplate serious harm, that he was provoked, and
that he was not aware of his conduct. The trial judge rejected considering any of
these mitigating factors because the jury found that Burgess intended to help rob the
victim, there was "absolutely no evidence" of provocation and "absolutely nothing
A-3652-18T3
27
in the record to [excuse or justify defendant's conduct]," and not being aware of one's
conduct because of age was not applicable to Burgess's situation.
There is no reason to second-guess the trial judge's application of the
sentencing factors as to Burgess. Nor can it reasonably be said that the trial judge
failed to consider "the real-time consequences of [NERA]" when imposing "nearly
a life sentence." The trial judge considered the consequences before sentencing
Burgess and the sentence imposed is not excessive.
II.
Spence raises four additional separate arguments on appeal. These
include that the trial judge erred by denying two additional motions for mistrial
based on comments made by a witness and the prosecutor, that the trial judge
abused her discretion by declining to admit the bystander's statement to the
police, that the trial judge erred in not sua sponte instructed the jury on self-
defense, and that the trial judge erred in denying his motion to suppress
cellphone evidence. We address these arguments in turn.
A.
We first address Spence's argument that the trial judge erred by denying
two other motions for a mistrial based on statements made by a witness and by
the prosecutor.
A-3652-18T3
28
First, Spence argues that a statement made by Detective Jason Dorn
(Dorn) during his counsel's cross-examination regarding the fact that Dorn
believed Spence invoked his right remain silent during an interview warranted
a mistrial. The examination proceeded as follows:
[SPENCE'S COUNSEL]: Well, after that interview you
indicated on direct that [R.S.] was let go, correct?
[DETECTIVE DORN]: He -- [R.S.] was let go; that's
correct.
[SPENCE'S COUNSEL]: Okay. . . . Spence was also let
go that day, correct?
[DETECTIVE DORN]: Not that I remember. You know,
I didn't have much interaction with . . . Spence. I believe
he invoked his right --
....
[SPENCE'S COUNSEL]: Judge, I make a motion for a
mistrial. That was not in response to my question and he
just said that . . . Spence invoked his rights. It's obvious to
the jury now that he didn't speak to the police, so -- and I
think that's -- obviously, I think it's -- I can't think of the
name of the case, but basically, I mean, that's something
that the jury shouldn't have been told.
THE COURT: I agree. They shouldn't, either, but --
[PROSECUTOR]: But, also, counsel did open the door
and counsel did pursue a follow-up question after the
witness said that he didn't have much interaction with . . .
A-3652-18T3
29
Spence. I don't think (indiscernible) instruction,
especially because he barely got it out.
....
[SPENCE'S COUNSEL]: I am making a motion for a
mistrial.
THE COURT: Okay. All right. The only thing I'm going
to do at this point is I'm going to give a limiting instruction,
so I can hear you as to what you want me, if anything, to
say. I know what I'm going to kind of say, but is there
anything in particular from the defense's team, since I'm
going to deny your motion for a mistrial at this point.
After discussion as to the content of the instruction and whether to instruct the
jury at that moment or whether to wait until the end of the presentation of the
case, the parties agreed that the jury should be instructed at that moment. The
trial judge then instructed the jury:
I give limiting instructions or instructions as to what
you should disregard based upon an objection or
statement from a witness. In this case there was a
response from the detective to or a comment by the
detective in response to a question asked by [Spence's
counsel], and that last question dealt with whether or
not he spoke with the defendant. Any answer he gave
to that I want you to disregard. It is not proper for you
to consider. Any answer that he may have given to that
response, anything that you may have heard, you should
put it out of your mind. It's not to play any part in your
deliberations in this case at any time. It's not for your
consideration.
A-3652-18T3
30
Spence's counsel made a timely objection, and both parties quickly
recognized the error made by Dorn in mentioning that Spence may have invoked
his right to remain silent. The judge promptly provided a limiting instruction to
the jury to ensure that they do not consider the statements during their decision -
making. The trial judge did not abuse her discretion by denying the motion for
a mistrial based on this statement.
Next, Spence argues that the prosecutor's question to him regarding
whether he told anyone his version of events in 2015 warrants a mistrial. The
examination proceeded as follows:
[PROSECUTOR]: Have you discussed your testimony
with your co-defendants?
[SPENCE]: No, I can't because you have us on keep
separate so we can't get next to each other.
[PROSECUTOR]: In 2017 -- excuse me. Now the story
that you told [Spence's defense counsel] today, you didn't
tell that to anyone in 2015, correct?
[SPENCE'S COUNSEL]: Objection, Judge. Can we
approach?
....
[SPENCE'S COUNSEL]: My motion for a mistrial, he
just asked whether or not he told anybody. The jury
already knows that he can assert his rights. But my prior
motion for a mistrial, once he's been read his Miranda
rights, he can't be asked questions about whether or not he
A-3652-18T3
31
gave a particular story and it violates his right to remain
silent. Again, it's an audio tape, so I'm going to have to
hook it up. I know you can't ask questions about
somebody telling a different story if they asserted their
Fifth Amendment rights after they've read the Miranda
rights to them by that point.
The parties agreed that the prosecutor's question was improper, and after the
judge denied defendant's motion for a mistrial, she gave the following limiting
instruction before proceeding:
All right. Members of the jury, I'm going to give you
another instruction. I'm going to direct that you're to
disregard the last question, not to speculate as to what
that question meant or what the response might have
been. And so just disregard that, put it out of your mind
as if it never happened. Can everybody do that and
make sure it doesn't play any part in your deliberations
in this case? Can everybody do that? Yes. Okay.
Spence's counsel made a timely objection, the parties quickly recognized
the error, and the judge gave the jury a limiting instruction. The error was not
such egregious prosecutorial misconduct as to warrant granting Spence's motion
for a mistrial, and the trial judge did not abuse her discretion by denying the
motion.
B.
Next, we turn to Spence's argument that the trial judge abused her
discretion by refusing to admit a recorded statement made by the bystander
A-3652-18T3
32
hours after the incident. Spence asserts that the statement provided by the
bystander qualifies as a dying declaration and excited utterance and should
therefore be admitted.
As stated previously, "a trial [judge]'s evidentiary rulings are 'entitled to
deference absent a showing of an abuse of discretion[.]" Brown, 170 N.J. at 147(quoting Marrero, 148 N.J. at 484). We may not "substitute our own judgement for
that of the trial [judge], unless the trial [judge]'s ruling was so wide of the mark that
a manifest denial of justice resulted." Ibid. (quoting Marrero, 148 N.J. at 484).
"Hearsay is an out-of-court statement offered 'to prove the truth of the matter
asserted' therein." State v. R.K., 220 N.J. 444, 459 (2015) (quoting N.J.R.E. 801).
Hearsay is not admissible unless there is an exception provided within the rules of
evidence or other laws. N.J.R.E. 802. Hearsay within hearsay may be admitted "if
each part of the combined statement conforms with an exception to the rule."
N.J.R.E. 805.
The excited utterance exception permits admission of "[a] statement relating
to a startling event or condition made while the declarant was under the stress of the
excitement caused by the event or condition and without opportunity to deliberate
or fabricate." N.J.R.E. 803(c)(2). Because there is no definitive interval of time that
is considered sufficient in length for deliberation or fabrication, a trial judge "must
A-3652-18T3
33
use a fact-specific analysis to determine whether a statement made after a specific
period of time will qualify as an excited utterance." State v. Long, 173 N.J. 138, 159
(2002). Although "the hearsay statement need not be contemporaneous with the
startling event," there must be a showing that "the interval was brief and the excited
state of the declarant continued." Ibid. (quoting State v. Clark, 347 N.J. Super. 497,
506 (App. Div. 2002)). A trial judge must also consider whether there has been
opportunity to deliberate or fabricate by considering "the element of time, the
circumstances of the incident, the mental and physical condition of the declarant,
and the nature of the utterance." Ibid. (quoting State v. Williams, 106 N.J. Super.
170, 172 (App. Div. 1969)).
The dying declaration exception permits admission in a criminal proceeding
of "a statement made by a victim unavailable as a witness . . . if it was made
voluntarily and in good faith and while the declarant believed in the imminence of
the declarant's impending death." N.J.R.E. 804(b)(2).
The trial judge first recognized that the bystander's statement involved
"hearsay within hearsay. Everybody agrees with that." The judge noted that the
victim's statement did not "directly relate[] to the event itself, but his concerns about
police locating potentially something illegal, or illegal items in his room." As a
result, the judge explained that "the nature of the utterance itself . . . seems to be
A-3652-18T3
34
something other than what the exception to [N.J.R.E.] 803(c)(2) provides." But even
if that was not the case, the judge explained that the bystander's statement to the
police could not fall within the excited utterance exception. The judge explained
that during his video statement, the bystander appeared "relatively calm in light of
the events that he did observe" and "[h]is thoughts appear[ed] to be collected and
ma[de] sense given the questions that were asked." The bystander appeared
"comfortable . . . and [did not] seem at all to be what [the trial judge] would observe
as being excited in any form of the matter." The trial judge explained noted that she
"d[id] not see that [the bystander was] in any way what we would describe as
shocked and uttering things about the event. His thoughts, again, seem to be
cohesive."
Further, the trial judge noted that the bystander's statement occurred
"[seventeen] or [eighteen] hours later," which would have given him "time to
deliberate, maybe not fabricate, but . . . have an opportunity to deliberate about the
events before he was interviewed at a set time." Combined with the bystander's
"uncertainty" and "poor recollection" of the situation, the trial judge determined that
the bystander's statement was unreliable and "the probative value . . . [was]
outweighed by the risk of confusion or misleading the jury as to the facts of th[e]
A-3652-18T3
35
case." The trial judge did not abuse her discretion by refusing to admit the
bystander's statement.
C.
We now turn to Spence's argument that the trial judge committed plain
error by not sua sponte instructing the jury on self-defense.
"'[C]lear and correct jury instructions are essential for a fair trial' because the
jury charge 'is a road map to guide the jury, and without an appropriate charge a jury
can take a wrong turn in its deliberations.'" State v. Martini, 187 N.J. 469, 477 (2006)
(alteration in original) (quoting State v. Koskovich, 168 N.J. 488, 507-08 (2001)).
We "review [a] trial [judge's] decision not to give [a self-defense] instruction under
a plain error standard, in accordance with Rule 2:10-2." State v. Galicia, 210 N.J.
364, 389 (2012).
Self-defense is an affirmative defense, which provides that "the use of force
upon or toward another person is justifiable when the actor reasonably believes that
such force is immediately necessary for the purpose of protecting himself against the
use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-
4(a). "A trial judge must sua sponte charge self-defense in the absence of a request
. . . 'if there exists evidence in either the State's or the defendant's case sufficient to
provide a "rational basis" for its applicability.'" Galicia, 210 N.J. at 390 (quoting
A-3652-18T3
36
State v. O'Carroll, 385 N.J. Super. 211, 236 (App. Div. 2006)). Evidence from either
the State or the defendant's case "must 'clearly indicate[]' such a defense to call for
such an instruction in the absence of a request to charge." Id. at 390-91 (quoting
State v. Perry, 124 N.J. 128, 161 (1991)). The trial judge is not required "'to
meticulously sift through the entire record . . . to see if some combination of facts
and inferences might rationally sustain' a lesser charge[.]" State v. Alexander, 233
N.J. 132, 143 (2018) (alteration in original) (quoting State v. Funderburg, 225 N.J.
66, 79 (2016)).
Spence testified that when he saw the victim walking into the room with
the gun and pointed the gun at him, he "tried to slap the gun away from [the
victim] to get it out of [his] face[.]" Spence testified that after he successfully
slapped the gun away from the victim and onto the floor, the victim attempted
to retrieve the gun. Spence and the victim began to "tussle" and Spence "tried
to turn the gun away from him and it went off." Spence explained that
throughout the altercation he did not obtain possession of the gun. Although
Spence testified that he feared for his life, it does not appear that he intended to
fire the handgun for the purpose of protecting himself as required by the self-
defense statute. The testimony does not clearly indicate that a self -defense
A-3652-18T3
37
charge was warranted absent a request by the defense. As a result, the trial judge
did not err by not sua sponte instructing the jury on self-defense.
D.
Finally, we address Spence's argument that the trial judge erred in denying
his motion to suppress the cellphone seized from his car. He argues that there
was no probable cause to seize the cellphone, and that the trial judge wrongfully
denied his request for a Franks4 hearing.
Our review of a determination of a motion to suppress is limited, and we defer
to the "motion judge's factual findings so long as sufficient credible evidence in the
record supports those findings." State v. Gonzales, 227 N.J. 77, 101 (2016) (citing
State v. Elders, 192 N.J. 224, 243-44 (2007)). In other words, we will defer to a trial
judge's determination unless it is "'clearly mistaken' or 'so wide of the mark' that the
interests of justice require appellate intervention." Elders, 192 N.J. at 245. We will
not disturb the findings even if an independent review of the record may lead to a
different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964).
We review a trial judge's decision regarding the need for a Franks hearing for
an abuse of discretion. State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div.
2009). A trial judge abuses his or her discretion when his or her "decision [is] made
4
Franks v. Delaware, 438 U.S. 154 (1978).
A-3652-18T3
38
without a rational explanation, inexplicably depart[s] from established policies, or
rest[s] on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008)
(citing Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
In denying Spence's motion to suppress, the trial judge first noted that "the
search and communications data warrants . . . were issued and executed consistent
with" both the Fourth Amendment of the United States Constitution, as well as
Article I, Paragraph 7 of the New Jersey Constitution. Next, the trial judge noted
that "[t]he seizure of the phone was proper" because the police had already identified
Burgess as a suspect and Spence informed the police that the cellphone belonged to
his cousin Burgess.
The trial judge also found that the magistrate judge who issued the search
warrant was not misled by the affidavits provided which stated that Burgess was in
"possession" of two cellphones, and therefore no Franks hearing was necessary. The
trial judge noted that while the use of the word "possession" may have been
"unartful[]," it could have reasonably been understood that Burgess had constructive
possession over the two cellphones. The trial judge determined that "the affidavit,
though not detailed, was not misleading" as a result of the use of "possession." Nor
did the use of the word "cousin" cast aspersions on the issuance of the search
warrant; as the trial judge explained, "considering the totality of the circumstances,
A-3652-18T3
39
it was reasonable for police to believe that the phone indeed belonged to . . . Burgess"
because "[Spence] had just recently been in the car with . . . Burgess, who he earlier
referred to as his cousin."
The trial judge did not abuse her discretion by declining to suppress the
cellphone, and the trial judge based her decision to deny a Franks hearing on a
rational explanation without any departures from established policies or applications
of impermissible bases.
III.
We now turn to Burgess's contention that he was entitled to judgments of
acquittal on the robbery and felony murder counts.
A judge shall enter an order for a judgment of acquittal only if "the evidence
is insufficient to warrant a conviction." R. 3:18-1. Our Supreme Court articulated
the standard to determine a motion for judgment of acquittal in State v. Reyes, 50
N.J. 454 (1967):
[T]he question the trial judge must determine is whether,
viewing the State's evidence in its entirety, be that
evidence direct or circumstantial, and giving the State the
benefit of all its favorable testimony as well as all of the
favorable inferences which reasonably could be drawn
therefrom, a reasonable jury could find guilt of the charge
beyond a reasonable doubt.
[Id. at 458-59 (citing State v. Fiorello, 36 N.J. 80, 90-91
(1961)).]
A-3652-18T3
40
That standard applies regardless of whether the motion was made during trial under
Rule 3:18-1, or after the jury returned a verdict under Rule 3:18-2. State v. Tindell,
417 N.J. Super. 530, 548-49 (App. Div. 2011). If the motion was made at the close
of the State's case, we do not consider any evidence adduced in the defendant's case.
Reyes, 50 N.J. at 459; State v. Foreshaw, 245 N.J. Super. 166, 185 (App. Div. 1991).
Under Rule 3:18-1, this court "'is not concerned with the worth, nature or
extent (beyond a scintilla) of the evidence, but only with its existence, viewed most
favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State
v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974)). "If the evidence satisfies that
standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
We review the judge's denial of defendant's motion for judgment of acquittal de
novo, State v. Dekowski, 218 N.J. 596, 608 (2014), and conduct an independent
assessment of the evidence, applying the same standard as the trial judge. State v.
Williams, 218 N.J. 576, 593-94 (2014).
At the end of the State's case, Burgess moved for judgments of acquittal,
arguing that the State had failed to prove he participated in a burglary or robbery,
and therefore could not be guilty of felony murder. The judge denied the motion
and the jury ultimately acquitted Burgess of burglary. Defendant now challenges
the robbery count as a predicate offense to felony murder.
A-3652-18T3
41
To convict a defendant of robbery, the State must prove that in the course of
committing a theft, defendant:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear
of immediate bodily injury; or
(3) Commits or threats immediately to commit any crime
of the first or second degree.
[N.J.S.A. 2C:15-1.]
In ruling on the motion, the trial judge cited the correct standard:
This motion is made under Rule 3:18-1, which is a motion
for judgment of acquittal. The case law as cited is State v.
Reyes, and the broad test for determination of such an
application is whether the evidence at this point is
sufficient to warrant a conviction of the charge or charges
involved. More specifically, the question the trial judge
must determine is whether viewing the State's evidence in
its entirety, direct and/or circumstantial, and giving the
State the benefit of all favorable testimony, as well as all
of the favorable inferences which reasonably could be
drawn therefrom, a reasonable juror could find guilt of the
charges beyond a reasonable doubt.
The trial judge accepted the prosecutor's explanation on how he put forth evidence:
[Burgess's text] messages indicate that a robbery was
planned, and that all three people were aware of that. The
text messages obviously do not use the word rob and do
not use the word gun. You wouldn't expect them to. But
the context makes that intent clear. . . .We heard really the
evidence of a robbery [which] is in many ways evidence
of the burglary. [The victim] is asleep, [defendant] can just
walk out. It sure doesn't sound like an invitation . . .
particularly one that the actual resident of the room is in
A-3652-18T3
42
on. And so a robbery in this instance is a burglary, but
there is certainly no indication that these individuals were
invited . . . people don't hide in the stairwell when they're
invited. People knock on the door. People don't act [in
the way that] defendant did on [surveillance] video.
The trial judge then determined:
[C]learly there is evidence now to support the State's
position, again, viewed most favorably to them based upon
not just the text messages but the testimony from the
witnesses, the detective, the lay witnesses, as well as the
expert witnesses as to the location of the phones, and
couple that with the video that's been shown to the jury,
the [c]ourt does not find that . . . the defense . . . has not
met its burden with respect to Rule 3:18-1.
We conclude there exists sufficient evidence in the record from which a
reasonable jury could find Burgess guilty of robbery beyond a reasonable doubt. See
Reyes, 50 N.J. 458-59. The more than twenty text messages exchanged between
Burgess and Spence provide significant circumstantial evidence that defendant
facilitated the robbery of the victim. The last of these text message coincided with
the arrival of Spence and Wynn, who Burgess admitted to the hotel room. Notably,
the text message stating "[s]earch everything and make him get the rest of the bread"
evidences Burgess's intention not just to sneak in and steal drugs and money, but to
use some degree of force, threat, or intimidation to get those items, which N.J.S.A.
2C:15-1 requires.
A-3652-18T3
43
Burgess now contends that the State failed to present evidence of a robbery
because "detectives recovered $225 in cash from the pockets of [the victim],
negating the claim that he was the victim of [a] robbery." The fact that money was
found on the victim and drugs were found in the room is of no moment, however,
because the record reveals that the robbery ended abruptly when Spence shot the
victim. Burgess also contends that he was incapable of robbing the victim because
he was a resident of the room and only granted entry to Spence and Wynn. This
argument is belied by the forensic text message evidence, lay witness testimony, and
surveillance footage showing Burgess helped orchestrate it.
Burgess argues that the State presented "no evidence that defendant had a gun
or that he otherwise planned to participate in the robbery." The fact that the victim
was shot during the robbery is sufficient to create the inference that one or more of
the co-defendants were armed, which would allow the State's case to survive a
motion for judgment of acquittal. It is of no moment that the defense later argued in
its case-in-chief that it was the victim that was armed. See Reyes, 50 N.J. at 459(1967) (explaining that if the motion was made at the close of the State's case, this
court does not consider any evidence adduced in the defendant's case). As such, the
State put forth sufficient circumstantial evidence to survive a motion for judgment
of acquittal and the trial judge did not err by denying it.
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To the extent that we have not addressed defendants' remaining arguments,
we conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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