STATE OF NEW JERSEY VS. HAKEEM O. WILLIAMS (17-01-0029, SALEM COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4276-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HAKEEM O. WILLIAMS, a/k/a
HAKEEM BRIAN WILLIAMS,
HAKEEM O. BRIAN WILLIAMS,
HAKEEM GOLDSMITH, and
HAKEEN WILLIAMS,
Defendant-Appellant.
_____________________________
Submitted February 25, 2020 – Decided May 5, 2020
Before Judges Fisher and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 17-01-0029.
Joseph E. Krakora, Public Defender, attorney for
appellant (Susan Brody, Assistant Deputy Public
Defender, of counsel and on the briefs).
John T. Lenahan, Salem County Prosecutor, attorney
for respondent (David M. Galemba, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
A man, his girlfriend, and their one-year old son were driving together in
a car, when the man, who was driving, stopped the car to speak with another
man walking on the street. The pedestrian pulled out a gun, shot the driver four
times, and took the car with the infant still in the backseat.
A jury convicted defendant Hakeem Williams of first-degree murder of
the driver, N.J.S.A. 2C:11-3(a)(1); first-degree kidnapping of the son, N.J.S.A.
2C:13-1(b)(1); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(a)(2); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b)(1); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1); third-degree theft of a motor vehicle, N.J.S.A. 2C:20-
10(c); and fourth-degree reckless endangering another, N.J.S.A. 2C:24-
7.1(a)(2). Defendant was sentenced to an aggregate prison term of fifty years ,
with periods of parole ineligibility.
Defendant appeals his convictions and sentence, arguing that there were
evidentiary errors at his trial and the sentence was excessive because three of
the prison terms were run consecutively. Discerning no reversible error, we
affirm the convictions and sentence.
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I.
We take the facts from the evidence at trial. On the afternoon of July 9,
2016, J.I., his girlfriend, Y.T., and their one-year-old son were driving together
in a Jetta Volkswagen. 1 J.I. was driving and the couple was looking at
neighborhoods in Penns Grove where they were considering buying a home. As
they drove down a street, they saw a man walking in the opposite direction and
J.I. turned the car around to speak with the man. At trial, the girlfriend explained
that J.I. thought the man had given him a strange look. As the men were
speaking, the girlfriend told J.I. she thought the man had a gun. The man then
pulled out a gun and started shooting at J.I.
The girlfriend got out of the car and J.I. followed her through the front
passenger seat door. J.I. then collapsed on the sidewalk. As the girlfriend was
attending to J.I., she saw the man get into their car and drive away with their son
still in the backseat.
Shortly after the shooting, police officers responded to the scene. The
girlfriend explained what happened and that she did not know the shooter. She
then described the shooter as a heavy-set black man with big eyes, who was
1
We use initials or descriptions for the victim and witnesses to protect their
privacy interests.
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approximately five feet six inches to five feet seven inches tall. Some of the
events at the scene were recorded on a motor vehicle recording (MVR) system
on one of the police vehicles.
J.I. was taken to a hospital where he was pronounced dead. An autopsy
revealed that he had been shot four times, and a medical examiner testified J.I.
died as a result of his gunshot wounds. Police recovered three bullet casings at
the scene.
The Jetta was found later that same evening. A woman saw the car parked
on a street in Philadelphia with its engine running. She noticed a child asleep
in the backseat, after observing the car for several minutes, she called the police.
When the police responded they found that the child was unharmed and he was
returned to the girlfriend, his mother.
That same night the girlfriend was shown a photo array containing six
photographs. The photo array was administered by a detective who was not
involved in the investigation and the procedure was video recorded and played
for the jury at trial. The girlfriend identified a photograph of defendant as the
man who had shot her boyfriend and taken her car and child.
At trial the girlfriend also identified defendant as the shooter and the man
who had taken her car and child. On cross-examination the girlfriend revealed,
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apparently for the first time, that when she first came into the office at the police
station where the array was conducted, she saw a picture that looked like
defendant sitting on the side on a table. The girlfriend went on to testify that
she told a police officer that the photograph looked like the "guy."
Defense counsel contended that the identification should be excluded;
accordingly, the trial court conducted an evidentiary hearing outside the
presence of the jury. At that hearing, the girlfriend was shown a portion of the
video of her photo identification and she testified that she was unsure where
exactly she saw the "side" photo.
The detective who conducted the photo array also testified during the
evidentiary hearing. He explained that there were no other photographs on his
desk when the girlfriend entered the office and he was unaware of any other
photographs of defendant being in the room at the time that the photo array was
conducted. He also testified that the girlfriend never mentioned seeing
defendant depicted in a photograph other than the photograph presented in the
array.
The sergeant who prepared the photo array also testified at the evidentiary
hearing. He explained that he placed the photographs in a folder and handed it
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to the detective who conducted the array and that the girlfriend never mentioned
seeing another photograph depicting defendant.
After hearing that testimony, the trial court found that there was no
evidence that any law enforcement officer showed the girlfriend a photograph
prior to the photo array. In that regard, the trial court found that the evidence
did not establish that the girlfriend saw a photograph of defendant before being
presented with the photographs in the photo array. Accordingly, the trial court
allowed the testimony concerning the girlfriend's out-of-court and in-court
identification of defendant to stay in evidence.
At trial the State also called another witness, A.G., to support the
identification of defendant as the shooter. A.G. testified that on the day of the
shooting she was visiting a friend's house near where the shooting took place.
She explained that she was introduced to a heavy-set black man who she
identified as defendant at trial. A.G. went on to testify that approximately
fifteen minutes after defendant left the house she was visiting, she heard
gunshots.
As part of its case, the State also played the MVR video of the scene
following the shooting. The MVR video was admitted into evidence after an
officer testified that it accurately reflected what he observed at the scene.
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The video was played for over an hour in two segments. The first segment
lasted approximately thirty-seven minutes. The video depicted the visibly
distressed girlfriend stating that the assailant had taken her "baby" and imploring
the police officer to pray for her son.
After the first portion of the video was paused, defense counsel requested
a side bar. Counsel then, for the first time, contended that the remainder of the
video should be excluded from evidence as prejudicial. The State countered that
the jury should be allowed to see the entire video because a storm prevented law
enforcement from taking pictures of the crime scene. The court denied
defendant's application and ruled that the jury would be allowed to see the entire
MVR video.
In the second portion of the video the girlfriend was again depicted and
heard to repeatedly ask for her son to be brought back. Also, an unidentified
speaker can be heard saying a prayer for the girlfriend and her son.
After seeing the entire MVR video, the trial court informed counsel that
it would give the jury a limiting instruction concerning the video. The court
then instructed the jury to disregard statements or comments made by people
who had not yet testified in court. The court also instructed the jury to disregard
any expressions of sympathy for the girlfriend and the child and that their
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decision was to be based only on the evidence presented in the court room and
not on sympathy.
After hearing the evidence at trial, the jury found defendant guilty of first-
degree murder, first-degree kidnaping, third-degree endangering the welfare of
a child, second-degree unlawful possession of a weapon, second-degree
possession of a weapon for an unlawful purpose, third-degree theft of a motor
vehicle, and fourth-degree endangering another person.
Thereafter, the court sentenced defendant. The conviction for possession
of a weapon for an unlawful purpose was merged with the murder conviction
and the convictions for endangering the welfare of a child and reckless
endangerment were merged with the kidnaping conviction. On the murder
conviction, defendant was sentenced to thirty years in prison with thirty years
of parole ineligibility. On the kidnapping conviction, he was sentenced to
fifteen years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On the conviction for unlawful possession of a weapon, defendant was sentenced
to five years in prison with forty-two months of parole ineligibility. Finally, on
the conviction for theft of a motor vehicle, defendant was sentenced to three
years in prison. The prison terms for the convictions of murder, kidnaping, and
unlawful possession of a weapon were run consecutively and the prison term for
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the conviction for theft of a motor vehicle was run concurrently to the other
prison terms. Consequently, the aggregate sentence was for fifty years in prison
with over forty-five years of parole ineligibility.
Defendant filed this appeal. Shortly thereafter, the trial court filed a
written memorandum amplifying its sentencing decision. See R. 2:5-1(b).
II.
On appeal, defendant presents five arguments for our consideration:
POINT I - DEFENDANT WAS DEPRIVED OF HIS
CONSTITUTIONAL RIGHTS TO DUE PROCESS
AND A FAIR TRIAL BY THE JUDGE'S DECISION
TO PERMIT THE PROSECUTOR TO PLAY FOR
THE JURY THE ENTIRE HOUR-PLUS MV
RECORDING OF THE CRIME'S AFTERMATH AT
THE SCENE.
POINT II - THE PROSECUTOR'S ACTS OF
PROFESSIONAL MISCONDUCT DURING HIS
OPENING AND SUMMATION DEPRIVED
DEFENDANT OF HIS RIGHTS TO DUE PROCESS
AND A FAIR TRIAL.
POINT III - THE KIDNAPPING CONVICTION
MUST BE VACATED BECAUSE THE STATE
FAILED TO ESTABLISH AN ESSENTIAL
ELEMENT OF THE OFFENSE.
POINT IV - THE FAIRNESS OF THE TRIAL WAS
IRREPARABLY DAMAGED BY THE COURT'S
REFUSAL TO EXCLUDE [THE GIRLFRIEND'S] IN-
COURT AND OUT-OF-COURT IDENTIFICATIONS
OF DEFENDANT.
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POINT V - THE COURT ERRED IN IMPOSING
THREE CONSECUTIVE TERMS IN VIOLATION OF
THE APPLICABLE SENTENCING PRINCIPLES.
We are not persuaded by any of these arguments and we will address them in
turn.
1. The MVR Video
Defendant argues that it was prejudicial error to allow the MVR video to
be played for the jury. In particular, he challenges the playing of the second
portion of the video after defense counsel raised an objection.
We review rulings on the admissibility of evidence for abuse of discretion.
State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v. Demello, 191 N.J.
18, 31 (2007)). Only those evidentiary rulings that are "so wide [of] the mark
that a manifest denial of justice resulted" should be reversed. Griffin v. City of
E. Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160
N.J. 480, 492 (1999)). When no objection is made, we review for plain error
and reverse only if the error is "clearly capable of producing an unjust result."
Rose, 206 N.J. at 157 (quoting R. 2:10-2).
Neither the State nor defense counsel made a pre-trial motion concerning
the admissibility of the MVR video. Instead, the State introduced the MVR
video during the testimony of a police officer who responded to the shooting
A-4276-17T2
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scene. The State contended that the video recording was relevant to show the
crime scene and to hear the girlfriend's description of the shooter. Defense
counsel made an authenticity objection, which was overruled, and the MVR
video was introduced into evidence.
The video was then played for the jury in two segments. The first segment
ran for approximately thirty-seven minutes. During that segment the video
showed, among other things, (1) the officer's arrival; (2) the girlfriend
explaining what happened and describing the shooter; (3) the girlfriend
recognizing that her boyfriend had no pulse and had died; and (4) the girlfriend
repeatedly asking the police to find her baby and to pray for the safety of the
child.
The video was then paused, and the trial judge asked the jury if they
wanted to take a break, which they declined. Defense counsel then requested a
side bar and there argued that no more of the video should be shown because it
would be prejudicial and cumulative. In response, the State contended that the
video was already in evidence and the jury should be allowed to see the entire
video because it depicted the crime scene. In that regard, the State argued that
the scene had not been extensively photographed because a storm arrived and
therefore the video was probative evidence.
A-4276-17T2
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The trial judge noted that no pre-trial motion concerning the video had
been made and she had not reviewed the rest of the video. The judge then ruled
that because the video was already in evidence, the remainder of the video could
be played for the jury.
Accordingly, the second segment of the video, which was approximately
fifty minutes long, was played. That portion of the video showed or recorded
(1) police and the girlfriend discussing the search for the child; (2) concern for
the safety of the child; and (3) an unidentified speaker saying a prayer for the
girlfriend and the child.
After the entire video had been played, the trial judge, outside the presence
of the jury, informed counsel that she would give a limiting instruction
concerning the MVR video. The judge and counsel then agreed upon an
instruction and the judge read that instruction to the jury. The judge directed
the jury to disregard any comments by unidentified individuals or police officers
who had not testified in court. The judge also instructed the jury to disregard
any comments based on sympathy and to decide the case based only on the facts
as they found them from the evidence and testimony presented at trial.
Specifically, the jury was instructed as follows:
A-4276-17T2
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This morning, you viewed a DVD recording of
images from the MVR, or motor vehicle recorder, of
Patrolman Hemple's vehicle.
This recording, which occurred at the scene of the
crime, included comments by not only Patrolman
Hemple and . . . the girlfriend of the victim.
But also by other officers, both identified and
unidentified, about the crime scene or the ongoing
investigation. There were comments made by
unidentified individuals, who were not officers.
You are the judges of the facts. One of the things
you will consider in deciding the facts is the credibility
of the witnesses who appear before you.
At this point in the trial, you have heard the
testimony of just two witnesses; Patrolman Hemple and
Patrolman Spinelli.
To the extent that you heard other officers or
individuals speak on the recording, you should
disregard statements or comments made by them until
such time as you have had an opportunity to hear them
testify in this courtroom. Only then can you fully
consider their statements and their credibility.
Second; the recording also included comments by
officers and other individuals, expressing sympathy for
[the girlfriend] and concern for her child.
While those events are part of the DVD that is in
evidence, you are instructed that your ultimate decision
in this case must be based upon the facts that you find
from the testimony and evidence presented in this
courtroom. Your decision may not be based upon
sympathy.
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You are instructed to disregard any comments or
statements contained in the DVD, which were not
factual in nature but were instead expressions of
sympathy or concern.
As already noted, there was no objection to playing the first portion of the
video. We discern no plain error in the playing of the first portion of the video,
particularly considering the judge's limiting instruction. The video had some
probative value in depicting the crime scene. It also had the potential to appeal
to the jury's sympathies. The limiting instruction, however, addressed that
potential prejudice. Accordingly, the record does not reflect that the video was
unduly prejudicial. Moreover, the record does not reflect that the playing of the
first portion of the video was capable of producing an unjust result. See R. 2:10-
2.
We also discern no abuse of discretion in the playing of the second portion
of the MVR video. The better practice may have been for the trial judge to have
taken a recess and reviewed the remaining portion of the video before it was
played for the jury. Nevertheless, the record does not demonstrate that the
second portion of the video was unduly prejudicial. "Evidence claimed to be
unduly prejudicial is excluded only when its 'probative value is so significantly
outweighed by [its] inherently inflammatory potential as to have a probable
capacity to divert the minds of the jurors from a reasonable and fair evaluation'
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of the issues in the case." Griffin, 225 N.J. at 421 (alteration in original)
(citations omitted). Again, the trial judge's instruction to the jury limited the
prejudicial impact of the full MVR video. The jurors were instructed to
disregard statements or depictions that played on their sympathy and they were
expressly instructed to base their determinations on the evidence at trial.
As part of the challenge to the playing of the MVR video, defendant
argues that the video functioned as a preemptive attempt to bolster the credibility
of the girlfriend in violation of Rule 607. Rule 607 states that a "prior consistent
statement shall not be admitted to support the credibility of a witness, except to
rebut an express or implied charge against the witness of recent fabrication or
of improper influence or motive and except as otherwise provided by the law of
evidence." Defense counsel did not make this argument at trial and again, we
review it for plain error. See State v. Nunez, 436 N.J. Super. 70, 76 (App. Div.
2014). Having reviewed the MVR video and the testimony of the girlfriend, we
discern no plain error.
Finally, defendant argues that his trial counsel was ineffective in failing
to file a pre-trial motion to exclude the MVR video and that we should remand
for a new trial. We decline to consider this argument as part of this direct appeal.
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We generally do not hear ineffective assistance claims on direct appeal because
the claim ordinarily "involve[s] allegations and evidence that lie outside the trial
record." State v. Hooper, 459 N.J. Super. 157, 175 (App. Div. 2019) (quoting
State v. Castagna, 187 N.J. 293, 313 (2006)). Such ineffective assistance claims
are "particularly suited for post-conviction review because they often cannot
reasonably be raised in a prior proceeding." Id. at 174-75 (quoting State v.
Preciose, 129 N.J. 451, 460 (1992)).
2. The Alleged Misconduct by the Prosecutor
Defendant contends that the assistant prosecutor engaged in misconduct
that deprived him of a fair trial. He points to three types of statements and
arguments made by the prosecutor during his opening and closing statements.
First, defendant argues that the prosecutor misrepresented the roles of counsel
by glorifying the prosecutor's role and diminishing the role of defense counsel.
Second, he asserts that the prosecutor improperly flattered the jurors to win them
over as allies. Finally, he contends that the prosecutor invited the jury to identify
with the girlfriend and to sympathize with the trauma she experienced.
Prosecutors are afforded reasonable latitude during openings and closings.
State v. R.B., 183 N.J. 308, 330 (2005) (citation omitted); State v. Williams, 113
N.J. 393, 447 (1988) (citations omitted). Nevertheless, prosecutors must
A-4276-17T2
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"confine their comments to evidence revealed during the trial and reasonable
inferences to be drawn from that evidence." State v. Smith, 167 N.J. 158, 178
(2001). When considering claims of prosecutorial misconduct, we first
determine whether misconduct occurred, and if so, whether it deprived the
defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 446 (2007) (quoting
Smith, 167 N.J. at 181). Accordingly, even when a prosecutor's comments
constitute misconduct, reversal of a defendant's conviction is not justified unless
the comments were "so egregious . . . [they] deprived [the] defendant of a fair
trial." State v. McGuire, 419 N.J. Super. 88, 139 (App. Div. 2011) (quoting
State v. Ramseur, 106 N.J. 123, 322 (1987)).
We also consider whether defense counsel made a timely objection.
Smith, 167 N.J. at 181-82 (citations omitted). If no objection was made, usually
the remarks will not be deemed prejudicial. State v. Frost, 158 N.J. 76, 83
(1999) (citing Ramseur, 106 N.J. at 323). In such circumstances, we look for
plain error and will only reverse if there is a "reasonable doubt as to whether the
error led the jury to a result that it otherwise might not have reached." State v.
Feal, 194 N.J. 293, 312 (2008) (quoting State v. Daniels, 182 N.J. 80, 102
(2004)).
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Defendant first complains about the prosecutor's misstatements
concerning the roles of counsel. In his opening statement the prosecutor told
the jury:
Now, the purpose of my opening statement is to
give you a brief outline of what you can expect to hear
the next few days and also give you a general
description of what the different roles of the people in
this courtroom are.
Now, there's you, the jury . . . [defense counsel]
and myself. We are the . . . main parties in this game
or in this trial.
Now, [defense counsel] is a well-respected
attorney. He's experienced and someone that I hold in
high regard. His job simply is to advocate passionately
and strenuously for his client.
His job is to serve as the mouthpiece for his
client, to give you arguments as to why he believes his
client is [innocent].
Another person in the courtroom is myself, the
Assistant Prosecutor. Now, a lot of people think my job
is difficult but to be quite frank with you, my job is not.
It's pretty simple.
My job is simply to present the evidence to you
and present the witnesses to you, that led to these
charges. My job is not to punish Hakeem Williams.
My job is not to convict Hakeem Williams.
My job is simple. I just present the evidence, I
present the witnesses and it's for you to consider.
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We agree with defendant that these descriptions were not appropriate or
accurate. Defendant did not object to them at the time, however, and we discern
no plain error. Fortunately, the trial court had defined the roles of the various
parties in the preliminary instructions to the jury. In the closing instructions,
the court also explained that statements by counsel were not evidence and that
the court would explain the law to the jury. Accordingly, any potential prejudice
from the prosecutor's misstatements did not have the potential to mislead the
jury.
Next, defendant argues that the prosecutor tried to win the jury over with
flattery. In that regard, he points to the prosecutor's opening and closing
statements. In his opening statement, the prosecutor told the jury:
Now, we just went through several days of a jury
selection process. I think it was like two or three days.
We even had to take a week break for you guys to come
back in.
You answered five to six pages of questions. You
guys gave us biographical information about
yourselves. I hope you realized and I hope you noticed
that when you guys were answering these questions, I
was paying attention very closely and very carefully.
I want to make sure that whatever members of the
jury [are] in this box, that they are able to keep an open
mind. I want to be able to make sure that they're able
to pay attention, stay focused and listen to what
the people say.
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And most importantly, I wanted to make sure
that every member of this jury box is someone who is
free of any potential bias. I can confidently say that
every person in this jury box is someone that I feel has
all of those qualities.
We agree that these comments were not appropriate. Here again, however,
defense counsel made no timely objection. Indeed, defense counsel engaged in
similar flattery to the jury in his opening remarks.
When viewed side-by-side both counsel attempted to win over the jury
with flattery. Thus, to the extent that these arguments were made, the jury heard
them from both sides. More importantly, the trial judge properly instructed the
jury that the attorneys' opening and closing remarks were not evidence. Thus,
we trust that the jury followed the court's instructions. See State v. Smith, 212
N.J. 365, 409 (2012) (citing State v. Loftin, 146 N.J. 295, 390 (1996)).
Consequently, we find no plain error concerning these remarks.
Finally, defendant takes issue with the prosecutor's description of what
the girlfriend would testify to during the prosecutor's opening statement. In
that regard, the prosecutor made the following remarks to the jury:
And, ladies and gentlemen, the most important
witness you're going to hear from is the witness who's
life was impacted the most by this incident.
You're going to hear from a woman who saw her
boyfriend shot while he sat in the driver's seat and she
A-4276-17T2
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sat in the passenger seat, in the middle of the day on
July 9, 2016.
You're going to hear from the woman who ran
out of the car in panic, in terror, and as you watched her
boyfriend get out of the vehicle and collapse on the side
of the -- sidewalk.
You're going to hear from the woman who held
her boyfriend in her arms; [J.I.], as he lay dying. You're
going to hear from the woman who saw her car pull
away at a high rate of speed, with her one year old child
inside.
You're going to hear about that woman's terror
and concern and desperation as the child goes missing
and she doesn't know where she -- where he is. Ladies
and gentlemen, the last person you're probably going to
hear from is [the girlfriend].
Defendant argues that these remarks invited the jury to identify with the
girlfriend and the panic and terror that she faced. We disagree. The remarks
concerning the girlfriend fell within the bounds of what a prosecutor may
permissibly discuss in an opening statement. In that regard, prosecutors are
permitted to discuss how he or she generally anticipates a witness will testify.
See State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004). We do not
discern any blatant and improper appeal to apply the golden rule.
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3. The Kidnapping Conviction
At the close of the State's case, defendant moved to dismiss the kidnapping
charge arguing that the State failed to submit evidence that he knew the child
was in the car when he stole the car. The trial judge rejected that argument
reasoning that the jury could infer that defendant knew or discovered that the
child was in the backseat while he had possession of the car.
We review a trial court's decision to deny a motion for acquittal de novo.
State v. Williams, 218 N.J. 576, 593-94 (2014) (citing State v. Bunch, 180 N.J.
534, 548-49 (2004)). Accordingly, we "determine whether, based on the entirety
of the evidence and after giving the State the benefit of all its favorable
testimony and all the favorable inferences drawn from that testimony, a
reasonable jury could find guilt beyond a reasonable doubt." Id. at 594 (citing
State v. Reyes, 50 N.J. 454, 458-59 (1967)).
A person is guilty of kidnapping "if he unlawfully removes another from
his place of residence or business, or a substantial distance from the vicinity
where he is found, or if he unlawfully confines another for a substantial period
. . . [t]o facilitate commission of any crime or flight thereafter . . . ." N.J.S.A.
2C:13-1(b)(1). The statute does not specify the culpability requirement.
Nevertheless, defendant must have acted knowingly in removing the child. See
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N.J.S.A. 2C:2-2(c)(3) (explaining that unless strict liability is clearly intended,
a statute setting forth a crime without specifying the mens rea requirement
should be construed as requiring a knowing state of mind); see also State v.
Eldakroury, 439 N.J. Super. 304, 310 (App. Div. 2015) (holding that when a
criminal statute does not specify the requisite mens rea, the "rule of lenity"
requires application of "the knowingly standard").
N.J.S.A. 2C:2-2(b)(2) defines the knowledge requirement and explains:
A person acts knowingly with respect to the nature of
his conduct or the attendant circumstances if he is
aware that his conduct is of that nature, or that such
circumstances exist, or he is aware of a high probability
of their existence. A person acts knowingly with
respect to a result of his conduct if he is aware that it is
practically certain that his conduct will cause such a
result. "Knowing," "with knowledge" or equivalent
terms have the same meaning.
A jury "may draw logical inferences from the evidence presented to them,"
including direct and circumstantial evidence. State v. Cango, 211 N.J. 488, 512
(2012). Our Supreme Court has explained that different inferences can be drawn
provided they are based on direct or circumstantial evidence and they support a
finding of guilt beyond a reasonable doubt. State v. Samuels, 189 N.J. 236, 246
(2007) (citations omitted). In that regard, the Court has stated:
[T]here are no legal rules as to what inferences may be
drawn. The question is one of logic and common sense.
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When each of the interconnected inferences [necessary
to support a finding of guilt beyond a reasonable doubt]
is reasonable on the evidence as a whole, judgment of
acquittal is not warranted .
[Ibid. (alterations in original) (citations omitted).]
At trial the State presented sufficient evidence to support a jury
determination that defendant knew the child was in the car when he stole it. The
girlfriend testified that defendant was standing right next to the window of the
car when he began shooting at the victim. Defendant thereafter drove off with
the car and the car was not recovered for several hours. The jury could also
reasonably infer that at some point during the flight defendant came to know the
child was in the backseat. According the State all reasonable inferences, the
trial court did not err in its determination that the jury could conclude beyond a
reasonable doubt that defendant knew or came to know that the child was in the
backseat of the car while he was fleeing from the shooting.
4. The Identification of Defendant
Next, defendant argues that this matter should be remanded for a new trial
because the trial court erred when it denied his request to exclude the girlfriend's
out-of-court identification of him. Specifically, defendant argues that the out-
of-court identification was impermissibly suggestive because the girlfriend saw
a picture of defendant before the photo array was conducted. Defendant argues
A-4276-17T2
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that viewing was an impermissible multiple viewing. Defendant also argues that
the suggestive out-of-court identification compromised the girlfriend's in-court
identification and that identification should have been excluded as w ell. We
disagree.
Our review of a motion to exclude an out-of-court identification is
deferential. State v. Wright, 444 N.J. Super. 347, 356 (App. Div. 2016). We
will affirm such rulings if there is sufficient credible evidence to support the
findings made by the trial court. Ibid. (quoting State v. Johnson, 42 N.J. 146,
162 (1964)). Recognizing that we are not in as good a position to judge
credibility as a trial judge, we give deference to the trial judge's credibility
determinations. State v. Dispoto, 383 N.J. Super. 205, 217 (App. Div. 2006)
(citations omitted).
Identification of a defendant is often critical evidence. See State v.
Anthony, 237 N.J. 213, 241-43 (2019). Accordingly, pre-trial identification
procedures must comply with due process. If the process is overly suggestive,
the identification should be excluded to protect the defendant's constitutional
rights. Foster v. California, 394 U.S. 440, 443 (1969); State v. Henderson, 208
N.J. 208, 285-90 (2011) (citations omitted). In Henderson, our Supreme Court
identified factors to be considered in assessing the reliability of eyewitness
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identifications. 208 N.J. at 247-72. Those factors are grouped into two
categories: system and estimator variables. System variables are factors that are
within the control of the criminal justice system, while estimator variables are
factors over which the legal system has no control. Id. at 247.
When a defendant seeks to exclude an out-of-court identification, he must
show "some evidence of suggestiveness tied to a system variable which could
have led to a mistaken identification." Anthony, 237 N.J. at 233 (citing
Henderson, 208 N.J. at 288-93). One of the system variables is whether there
were "multiple viewings." Henderson, 208 N.J. at 255-56, 290.
If a defendant presents evidence of suggestiveness, the burden shifts to
the State to "offer proof to show that the proffered eyewitness identification is
reliable." Id. at 289. The "ultimate burden remains on the defendant to prove a
very substantial likelihood of irreparable misidentification." Ibid. (citations
omitted). In that regard, the "threshold for suppression" is high and in most
cases the issue of identification should be "presented to the jury." Id. at 303.
Here, defendant did not file a pre-trial motion to exclude the girlfriend's
out-of-court identification of him. Instead, the issue arose at trial when, on
cross-examination, the girlfriend testified that before she was shown the photo
array, she saw a picture of defendant on the side on a table. Following that
A-4276-17T2
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testimony, the court conducted an evidentiary hearing outside the presence of
the jury. The court then heard testimony from the girlfriend, the detective who
administered the photo array, and the sergeant who prepared the photo array.
Thereafter, the court denied defendant's request to suppress the out-of-court
identification finding that the evidence did not support suppression. In that
regard, the court found no credible evidence that the girlfriend had been shown
or even seen a side photograph. Moreover, the trial court noted that the jury
heard the testimony concerning the side photograph and it was in their province
to weigh that evidence in determining the identification issue.
We discern no error in the trial court's ruling. The court's factual findings,
including the credibility assessment of the girlfriend's testimony, are supported
by credible evidence in the record. While the girlfriend testified on cross-
examination that she had seen a side photograph, at the hearing she could not
recall if the side photograph was the same photograph presented during the
photo array. More importantly, the trial court determined that there was
sufficient reliability in the girlfriend's out-of-court identification of defendant.
In that regard, the girlfriend was consistent and confident in her identification
of defendant as the shooter and the person who stole her vehicle.
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As part of his case, defendant presented testimony that a detective had
printed Facebook photographs of defendant in connection with the investigation.
That evidence, however, does not prove that the girlfriend saw a "side"
photograph of defendant.
Moreover, the trial court provided the jury with a comprehensive
instruction regarding the girlfriend's identification of defendant. In that
instruction, the court explained the issue of multiple viewings. Accordingly, we
discern no reversible error in the trial court's denial of defendant's request to
suppress the out-of-court identification. Having found no error in that issue, we
find no error in the trial court allowing the girlfriend to identify defendant in
court. See State v. Madison, 109 N.J. 223, 242-43 (1988) (citations omitted)
(holding that an in-court identification should be excluded if the out-of-court
identification was so impermissibly suggestive that the in-court identification
was probably based on the suggestive procedure rather than first-hand
observations or if it was otherwise unreliable).
5. The Sentence
Finally, defendant contends it was error to sentence him to consecutive
prison terms for his convictions for murder, kidnapping, and unlawful
possession of a weapon. We disagree.
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We review sentencing determinations under a deferential standard. State
v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 549, 606
(2013)). We do not substitute our judgment for "the judgment of the sentencing
court." Lawless, 214 N.J. at 606 (first citing State v. Cassady, 198 N.J. 165, 180
(2009); then citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). Instead, we
will affirm a sentence unless
(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[State v. Miller, 237 N.J. 15, 28 (2019) (alteration in
original) (quoting State v. Fuentes, 217 N.J. 57, 70
(2014)).]
When sentencing a defendant for multiple offenses, "such multiple
sentences shall run concurrently or consecutively as the court determines at the
time of sentence . . . ." N.J.S.A. 2C:44-5(a). In State v. Yarbough, 100 N.J.
627, 643-44 (1985), our Supreme Court established criteria that a sentencing
court must consider when deciding whether to impose consecutive sentences.
Namely, the court must evaluate whether
(a) the crimes and their objectives were predominantly
independent of each other;
A-4276-17T2
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(b) the crimes involved separate acts of violence or
threats of violence;
(c) the crimes were committed at different times or
separate places, rather than being committed so closely
in time and place as to indicate a single period of
aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be
imposed are numerous . . . .
[Id. at 644.]
"The Yarbough factors are qualitative, not quantitative; applying them involves
more than merely counting the factors favoring each alternative outcome." State
v. Cuff, 239 N.J. 321, 348 (2019) (first citing State v. Molina, 168 N.J. 436, 442-
43 (2001); then citing State v. Carey, 168 N.J. 413, 427-28 (2001)).
"When a sentencing court properly evaluates the Yarbough factors in light
of the record, the court's decision will not normally be disturbed on appeal."
State v. Miller, 205 N.J. 109, 129 (2011) (citing Cassady, 198 N.J. at 182).
Nevertheless, when a sentencing court fails to explain its decision to impose
consecutive sentences a remand is generally required for the judge to provide an
explanation on the record. Ibid. (citations omitted).
In sentencing defendant, the court considered the various aggravating and
mitigating factors and then found aggravating factors three, six, nine, and
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thirteen. N.J.S.A. 2C:44-1(a)(3), (6), (9), (13). The court also found mitigating
factor two regarding the kidnaping conviction. N.J.S.A. 2C:44-1(b)(2). The
court then balanced those aggravating and mitigating factors and imposed
sentences within the ranges for the various convictions.
After defendant filed his appeal, the sentencing judge issued a written
memorandum amplifying her reasons for imposing consecutive sentences. The
judge explained that she considered the various Yarbough factors and imposed
a consecutive sentence for the murder and the kidnapping because those crimes
involved separate victims and were independent of each other. In imposing a
consecutive sentence for unlawful possession of a firearm, the judge explained
that the evidence showed that defendant possessed the gun prior to any contact
with the victim.
We discern no error in the consecutive sentences imposed for the murder
and the kidnapping. There is evidence supporting the sentencing judge's
findings that both crimes were independent of each other and involved two
different victims. The consecutive sentence for unlawful possession of a gun is
a closer call. While the sentencing judge did not provide a lengthy explanation
for imposing consecutive sentences, we cannot conclude that she mistakenly
exercised her discretion. The sentencing judge adequately explained that the
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unlawful possession of the gun was separate and distinct from the murder. The
judge also explained that the evidence showed that defendant possessed the
firearm prior to contact with the victim. See Cuff, 239 N.J. at 351; but see State
v. Copling, 326 N.J. Super. 417, 441-42 (App. Div. 1999).
Affirmed.
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