STATE OF NEW JERSEY VS. HARRY WILKINS (17-03-0111, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5385-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HARRY WILKINS, a/k/a
NALANI WILKINS,
Defendant-Appellant.
_________________________
Submitted September 30, 2020 – Decided November 13, 2020
Before Judges Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 17-03-
0111.
Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth E. Hunter, Designated Counsel, on the
brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Paul H. Heinzel, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
A jury convicted defendant of second-degree robbery, N.J.S.A. 2C:15-
1(a)(1), and defendant was sentenced to five years in prison subject to the No
Early Release Act, N.J.S.A. 2C:43-7.2. On appeal, defendant challenges the
conviction and sentence, arguing that the trial court erred in (1) not precluding
hearsay testimony; (2) giving improper instructions on flight as consciousness
of guilt; and (3) not instructing the jury on a lesser-included offense as an
accomplice. Defendant also argues that (4) the prosecutor engaged in
misconduct in closing arguments and (5) her sentence was improper. 1 Having
reviewed the record and applicable law, we reject these arguments and affirm.
I.
Defendant's conviction arose out of an altercation with a cab driver. On
November 5, 2016, defendant and co-defendant, Carlos "Royal" Martinez, were
staying at a hotel in New Jersey and arranged for a taxi to take them to the Bronx
in New York City. Defendant and Martinez identify as transgender. Their
counsel argued that the cab driver disparaged them because of this and their
ethnicities. By contrast, the cab driver testified that he requested payment up
front, defendant and Martinez refused, and they assaulted him with pepper spray,
threatened him with scissors, and robbed him.
1
We use feminine pronouns out of respect for defendant's wishes and identity.
A-5385-17T4
2
We take the facts from the trial, at which the jury heard testimony from
the cab driver, a hotel clerk, and several police officers. Defendant and Martinez
elected not to testify.
The cab driver testified that on November 5, 2016, he was dispatched to
pick up customers from a hotel and take them to the Bronx. When he arrived at
the hotel, he met the two customers. He described one of the customers as
wearing a pink jacket and the other as wearing a gray sweater with a hood. Once
the customers were in the cab, he told them that the fare would be $160 plus
tolls and he requested payment upfront. An argument ensued and the customer
wearing the pink jacket pepper sprayed him. The customer in pink then ordered
him to give them money, pulled out scissors, and threatened to kill him.
According to the driver, the customer wearing pink sprayed him at the
instruction of the customer in gray. The customers then took money from him,
smashed his cell phone, and fled.
The hotel clerk testified that sometime around 10 p.m. on November 5,
2016, two guests requested he call them a cab. He let them use the hotel's phone
to make the arrangements. Approximately fifteen to twenty minutes later, the
cab driver arrived, and the clerk saw the guests get into the taxi. Shortly
thereafter, the clerk heard someone scream for help and went outside. He saw
A-5385-17T4
3
the driver, who yelled that he could not see. As the clerk assisted, the driver
told him the customers had sprayed his eyes and robbed him. Another person in
the vicinity then asked what happened and, according to the clerk, the driver
stated, "somebody robbed me," and "they sprayed my eyes."
Following a call to 911, the police responded. Police Officer Leonard
Bird was the first officer to arrive at the hotel. The driver told Bird that two
"gay" customers had requested a ride to the Bronx, he had requested pre -
payment, and an argument ensued. The driver reported that one of the customers
pepper sprayed him, he was threatened with a pair of scissors, he gave them
money, and the customers fled.
Other police officers located defendant and Martinez at the Fairfield Inn.
Two of those officers subsequently described defendant as wearing a gray shirt
and Martinez as wearing a pink shirt. The cab driver was brought to the Inn and
he identified defendant and Martinez as the individuals who had pepper sprayed
and robbed him. That identification was recorded on a police vehicle's mobile
video recorder. During the identification, the cab driver stated that the person
wearing gray had pepper sprayed him at the instruction of the person wearing
pink.
A-5385-17T4
4
Defendant and Martinez were arrested. The police found a pair of scissors
and a container of mace on Martinez. Defendant was searched and police found
two keys for rooms at the hotel where the cab driver had picked up the
customers. The police also found $155 in cash in defendant's property.
After hearing the evidence at trial, the jury found defendant guilty of
robbery. Defendant now appeals.
II.
On appeal, defendant challenges both her conviction and sentence and
makes five arguments, which she articulates as follows:
POINT I – THE TRIAL COURT COMMITTED
PLAIN ERROR IN ALLOWING THE STATE
WITNESSES TO TESTIFY THAT THE CAB
DRIVER TOLD THEM HE HAD BEEN ROBBED,
WHICH WAS INADMISSIBLE HEARSAY AND
IMPROPERLY BOLSTERED THE CREDIBILITY
OF THE ALLEGED VICTIM.
POINT II – THE PROSECUTOR'S COMMENTS
DURING HIS CLOSING ACCUSING DEFENSE
COUNSEL OF MAKING HOMOPHOBIC AND
RACIAL SLURS DEPRIVED DEFENDANT OF A
FAIR TRIAL, AND THE COURT'S GENERAL
INSTRUCTION NOT TO CONSIDER POWERPOINT
PRESENTATIONS AS EVIDENCE WITHOUT
ADDRESSING THE STATE'S OFFENSIVE
REMARKS WAS WHOLLY INADEQUATE.
POINT III – THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY ISSUING AN
A-5385-17T4
5
UNCONSTITUTIONAL INSTRUCTION ON FLIGHT
AS CONSCIOUSNESS OF GUILT.
POINT IV – THE TRIAL COURT'S FAILURE TO
INSTRUCT THE JURY THAT DEFENDANT
COULD BE FOUND GUILTY OF A LESSER
OFFENSE AS AN ACCOMPLICE DEPRIVED
DEFENDANT OF THE RIGHT TO DUE PROCESS
OF LAW AND A FAIR TRIAL.
POINT V – THIS COURT SHOULD REMAND FOR
RESENTENCING BECAUSE: THE TRIAL COURT
ERRED IN DENYING DRUG COURT; IMPOSED
AN EXCESSIVELY DISPARATE SENTENCE WITH
RESPECT TO THE CO-DEFENDANT;
IMPROPERLY FOUND AND WEIGHED
AGGRAVATING AND MITIGATING FACTORS;
AND FAILED TO CONSIDER THE DEFENDANT'S
YOUTH.
A. The Hearsay Testimony Regarding What the Cab Driver Told Others
Defendant contends that the trial court committed reversible error by
allowing several witnesses to testify about what the cab driver told them
concerning the incident. In that regard, defendant argues that the testimony was
inadmissible hearsay and that it improperly bolstered the driver's credibility.
Defendant acknowledges that no objection to the hearsay was made at trial
but argues that the admission of the testimony was plain error. In particular,
defendant objects to the hearsay testimony provided by two police officers.
A-5385-17T4
6
The State maintains that defense counsel strategically did not object to the
testimony because it revealed inconsistent statements by the cab driver
concerning which of the customers assaulted him. The State also argues that
defense counsel thereafter cross-examined the witnesses using the hearsay
statements to highlight their theme of inconsistency by the cab driver.
Because no objection was made at trial, we review the admission of the
testimony for plain error. R. 2:10-2; see also State v. Scharf, 225 N.J. 547, 576-
78 (2016). The trial record establishes that defense counsel used the
inconsistencies in what the cab driver reported to others as a means of attacking
his credibility. Accordingly, defendant's argument on appeal is also barred by
the doctrine of invited error. State v. A.R., 213 N.J. 542, 561 (2013). "Under
that settled principle of law, trial errors that 'were induced, encouraged or
acquiesced in or consented to by defense counsel ordinarily are not a basis for
reversal on appeal.'" Ibid. (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)).
Moreover, at trial defense counsel agreed that the cab driver's statements
to the hotel clerk were admissible as excited utterances and under the present-
sense impression exception to the hearsay rule. Thereafter, defense counsel did
not object when the State offered testimony from Officer Bird concerning what
A-5385-17T4
7
the cab driver reported to him. Both defendant and Martinez's counsel then used
those same hearsay statements in cross-examining Officer Bird.
Defense counsel also cross-examined another officer, Detective Derek
Miller, concerning the cab driver's statements. Indeed, defense counsel agreed
to allow the recorded interview of the cab driver conducted by Miller to be
played to the jury.
In short, we discern no plain error. Consequently, we reject defendant's
arguments that the admission of hearsay constituted reversible error.
B. The Assistant Prosecutor's Closing Argument
In closing arguments, the assistant prosecutor used a PowerPoint
presentation. One of the slides stated: "The only homophobic or racial slurs
used in this courtroom came from the mouths of the defense attorneys." Defense
counsel immediately objected. At a sidebar conference, defense counsel
contended that the slide was inaccurate and derogatory and should not be used.
Counsel also agreed with the court that making further reference to the specific
slide would be more harmful than a limiting instruction.
Thereafter, the assistant prosecutor continued his closing without making
further reference to the slide or language used by defense counsel. In a follow-
A-5385-17T4
8
up instruction to the jury, the court cautioned that PowerPoint presentations and
arguments of counsel were not evidence.
On appeal, defendant argues that the use of the PowerPoint slide was
disparaging to his counsel and deprived him of a fair trial. The State's response
is that the defense attempted to paint the cab driver as a homophobic bigot. The
State points to arguments made in opening and questions asked on cross-
examination, where both defense counsel asked if the cab driver had used
homophobic or racial slurs when talking about defendant or Martinez.
Accordingly, the State argues that the remark in closing was made in response
to defense counsel's questions and arguments and, therefore, was a fair
comment.
Prosecutors are afforded reasonable latitude when making openings and
closings. State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry,
52 N.J. 413, 437 (1968)); State v. Williams, 113 N.J. 393, 447 (1988).
Nevertheless, prosecutors must "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) (citations omitted). 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,
A-5385-17T4
9
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 that [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 discern no reversible error in the assistant prosecutor's closing
argument. The comment was contained in a PowerPoint slide and as soon as the
assistant prosecutor began to read the slide to the jury, defense counsel objected.
Thereafter, there was no further reference to the slide. Just as importantly,
during the sidebar discussion, defense counsel agreed with the court that any
further reference to the comment would only draw more attention to it. Defense
counsel and the court concluded it was better not to further address the slide.
Accordingly, in a follow-up instruction to the jury, the judge instructed that the
PowerPoint presentation and arguments by counsel were not evidence. Under
these circumstances, the comment was not so egregious as to deprive defendant
of a fair trial.
C. The Jury Charge on Flight
Next, defendant contends that the trial court gave an improper charge on
the issue of flight. At the charge conference, the State argued that the record
A-5385-17T4
10
indicated defendant and Martinez ran from the scene, and a flight charge was
appropriate. After the court ruled that it would give such a charge, defense
counsel suggested language to be added to the model flight charge. Ultimately,
the court agreed and gave the charge with the modification suggested by defense
counsel.
Defendant now contends that the charge given was unconstitutional
because it shifted the burden of proof to defendant to establish that she did not
engage in flight as consciousness of guilt. We disagree.
Appropriate jury charges are "essential to a fair trial." State v. Savage,
172 N.J. 374, 387 (2002) (citing State v. Collier, 90 N.J. 117, 122 (1982)). When
defendant fails to object to a jury charge, we review for plain error, and
"disregard any alleged error 'unless it is of such a nature as to have been clearly
capable of producing an unjust result.'" State v. Funderburg, 225 N.J. 66, 79
(2016) (quoting R. 2:10-2). Plain error in the context of jury charges is "[l]egal
impropriety in the charge prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by the reviewing court and
to convince the court that of itself the error possessed a clear capacity to bring
about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (alteration
in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)).
A-5385-17T4
11
In reviewing a jury charge, "[t]he charge must be read as a whole in
determining whether there was any error." State v. Torres, 183 N.J. 554, 564
(2005) (citing State v. Jordan, 147 N.J. 409, 422 (1997)). In addition, "[t]he
error must be considered in light of the entire charge and must be evaluated in
light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J. 73,
90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Furthermore,
defense counsel's failure to object to a jury instruction "is considered a waiver
to object to the instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013)
(first citing R. 1:7-2; and then citing Torres, 183 N.J. at 564).
An instruction on flight is appropriate if the underlying circumstances
"'reasonably justify an inference that [a defendant's flight] was done with a
consciousness of guilt' to avoid apprehension on the charged offense." State v.
Randolph, 228 N.J. 566, 594-95 (2017) (quoting State v. Ingram, 196 N.J. 23,
46 (2008)). Read in its entirety, the charge properly instructed the jury that they
first had to find that defendant "took refuge in flight for the purpose of evading
the accusation or arrest" to consider the flight as proof of consciousness of guilt.
Accordingly, we discern no improper shifting of the burden and find no
reversible error in the flight instruction.
A-5385-17T4
12
D. The Lack of Jury Instruction on Accomplice Liability
Defendant contends that she was deprived of a fair trial because the court
did not give an instruction on accomplice liability. In that regard, the trial court
instructed the jury on the lesser-included offenses of theft and simple assault
concerning both defendant and Martinez but did not give an accomplice liability
instruction on the lesser offenses.
At trial, the State sought an accomplice liability charge, arguing that both
defendants acted together and were equally responsible. Defense counsel
objected and contended that there was no agreement or common plan between
the defendants. Ultimately, the trial court did not give an instruction on
accomplice liability.
Jury charges are critical in guiding deliberations in criminal trials. State
v. Jenkins, 178 N.J. 347, 361 (2004) (citing Jordan, 147 N.J. at 421-22).
"[I]mproper instructions on material issues are presumed to constitute reversible
error," even where a defendant fails to object at trial. Ibid. Moreover, "a
defendant is entitled to a charge on all lesser included offenses supported by the
evidence." State v. Short, 131 N.J. 47, 53 (1993). Consequently, the trial court
"has an independent obligation to instruct on lesser-included charges when the
facts adduced at trial clearly indicate that a jury could convict on the lesser while
A-5385-17T4
13
acquitting on the greater offense." Jenkins, 178 N.J. at 361. The key
consideration is whether the evidence clearly indicates the need for the
instruction. See ibid.
The jury was properly instructed on simple assault and theft as lesser-
included offenses. At defense counsel's request, no accomplice liability charge
was given. We discern no reversible error. See Ingram, 196 N.J. at 40 (finding
no reversible error where a jury was instructed on the elements of lesser-
included offenses without a specific accomplice liability charge on the lesser-
included offenses).
E. The Sentence
Finally, defendant challenges her sentence, contending (1) she should
have been sentenced to drug court; (2) the sentence was excessive when
compared to Martinez's sentence to drug court probation; (3) the trial court
improperly found and weighed aggravating and mitigating factors; and (4) the
court failed to consider defendant's young age.
We review sentencing decisions using an abuse of discretion standard.
State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J.
503, 512 (1979)). We will affirm a trial court's sentence unless "(1) the
sentencing guidelines were violated; (2) the findings of aggravating and
A-5385-17T4
14
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.'" Ibid. (alteration in original) (quoting State v. Roth, 95
N.J. 334, 364-65 (1984)).
The sentencing judge carefully considered defendant's request to be
admitted into special drug court probation and found, after analyzing her
specific circumstances, that she was ineligible due to the risk of danger she
posed to the community. The judge then reviewed the aggravating and
mitigating factors argued for by the State and defendant and found that
aggravating factors three and nine applied. N.J.S.A. 2C:44-1(a)(3), (a)(9). In
that regard, the court found that defendant had committed other offenses and
there was a need to deter defendant and others from violating the law. Those
findings were supported by credible evidence. The court also found mitigating
factor four, that there "were substantial grounds tending to excuse or justify"
defendant's conduct, albeit failing to establish a defense. N.J.S.A. 2C:44-1
(b)(4).
The court then sentenced defendant to five years of imprisonment, the
minimum sentence for a second-degree crime. In making its evaluations, the
court expressly acknowledged that defendant was twenty-two years old when
A-5385-17T4
15
she was convicted and considered both her age and personal history. Finally,
defendant has presented nothing to support her arguments that her sentence was
excessive as compared to Martinez, given that Martinez had no prior criminal
record.
Affirmed.
A-5385-17T4
16