STATE OF NEW JERSEY VS. JAQUIL JOHNSON (15-12-2837, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-5290-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAQUIL JOHNSON, a/k/a
JAQUILA JOHNSON,
Defendant-Appellant.
_______________________
Argued November 2, 2020 – Decided January 26, 2021
Before Judges Messano and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 15-12-2837.
Susan Lee Romeo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Daniel V. Gautieri,
Assistant Deputy Public Defender, of counsel and on
the brief).
Valeria Dominguez, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Valeria Dominguez, of counsel and
on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
A jury convicted defendant Jaquil Johnson of the lesser-included charge
of second-degree passion-provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), in
the shooting death of Calvin Auston, and unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b). The jury acquitted defendant of possession of a firearm
for an unlawful purpose. N.J.S.A. 2C:39-4(a). The judge granted the State's
motion for an extended term pursuant to N.J.S.A. 2C:44-3(a) and sentenced
defendant to an eighteen-year term of imprisonment subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, on the manslaughter conviction, and
a concurrent ten-year term with a five-year period of parole ineligibility
pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), on the weapons offense.
Defendant raises the following points on appeal:
POINT I
THE TRIAL JUDGE FAILED TO ENSURE
DEFENDANT'S RIGHTS TO A FAIR AND
IMPARTIAL JURY, DUE PROCESS AND
CONFRONTATION, WHEN HE FAILED TO VOIR
DIRE THE JURORS AFTER MEMBERS OF THE
VICTIM'S FAMILY WORE SHIRTS TO COURT
DISPLAYING A PHOTOGRAPH OF THE VICTIM
AND THE WORDS "REST IN PEACE." (NOT
RAISED BELOW)
A-5290-17T1
2
POINT II
THE COURT ERRED IN PERMITTING A KEY
STATE'S WITNESS TO TESTIFY IN HANDCUFFS
AND PRISON GARB. (PARTIALLY RAISED
BELOW)
POINT III
THE PROSECUTOR COMMITTED MISCONDUCT
IN SUMMATION, INCLUDING WHEN SHE
URGED, WITHOUT SUPPORT IN THE RECORD,
THAT DEFENDANT'S HAVING LEFT NEW
JERSEY REFLECTED A CONSCIOUSNESS OF
GUILT, AND THE COURT ERRED IN FAILING TO
CORRECT THE PROSECUTOR'S ERRORS.
POINT IV
IN SENTENCING THE DEFENDANT, THE COURT
ERRED IN MISSTATING THE APPLICABLE
SENTENCING RANGE AND FINDING, AS AN
AGGRAVATING FACTOR, THE NATURE AND
CIRCUMSTANCES OF THE OFFENSE.
Defendant raises the following issues in a pro se supplemental brief:
POINT ONE
THE TRIAL COURT'S JURY INSTRUCTIONS ON
ELEMENTS OF MURDER AND ITS LESSER
INCLUDED OFFENSES WAS CONTRADICTORY,
CONFUSING AND LESSENED THE STATE'S
BURDEN, THUS DEPRIVING DEFENDANT DUE
A-5290-17T1
3
PROCESS AND A FAIR TRIAL . . . . [NOT RAISED
BELOW]1
POINT TWO
THE DEFENDANT WAS DENIED A FAIR TRIAL
AND DUE PROCESS WHEN THE TRIAL COURT
FAILED TO CHARGE THE JURY ON SELF-
DEFENSE . . . . [NOT RAISED BELOW]
POINT THREE
DEFENDANT WAS DENIED DUE PROCESS AND
A FAIR TRIAL WHEN THE PROSECUTOR
SOUGHT TO APPEAL TO THE JURORS
SYMPATHY AND PREJUDICES TO LESSEN THE
STATE'S BURDEN . . . . [NOT RAISED BELOW]
POINT FOUR
THE TRIAL COURT'S FAILURE TO FIND
MITIGATING FACTORS WHICH DEFENDANT
WAS ENTITLED TO RECEIVE, VIOLATED THE
SENTENCING GUIDELINES AND DEPRIVED
DEFENDANT OF DUE PROCESS [NOT RAISED
BELOW]
Considering the record and applicable legal standards, we affirm defendant's
conviction and remand the matter for re-sentencing consistent with this opinion.
1
We omitted the subpoint contained in defendant's brief, as well as citations in
the point headings to the United States and New Jersey Constitutions.
A-5290-17T1
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I.
On New Year's Eve, 2014, a small group of people gathered for a party at
the home of Jacqueline Auston. Her son, Calvin, was visiting from North
Carolina. Also present were Jacqueline's cousin, Latisia Dodd, and a friend of
Jacqueline's niece, Kianna Waiters. 2 Soon, an argument erupted between Dodd
and Waiters, and Jacqueline told them to "take it outside," which they did.
Someone called Dodds's husband, Jihad Jones, who was also a friend of the
family, and told him Waiters had been "jumped" in a fight. Jones arrived with
defendant.
Calvin and his brother Haneef got into a physical altercation with Jones
and defendant. What exactly happened was the subject of confusing testimony,
with one witness describing the scene as "chaotic." Ultimately, a shot rang out.
Calvin was struck in the abdomen and later died at the hospital.
Jones left with defendant. In a statement to police, Jones said defendant
"pull[ed] . . . out [the gun] just to back [Calvin] off of him and the gun went
2
We apologize for the informality of using the first names of the Auston family
members, but we do so only to avoid confusion.
A-5290-17T1
5
off."3 No one else saw who fired the shots, but Jacqueline and Haneef provided
a general description. Dodd did not see the shooting, but she later identified
defendant in an out-of-court photographic array as the man who arrived with
Jones, had a gun in his hand, and ran after the shot was fired.
Before and after the shooting, Khristine Miles was with defendant, who
she identified at trial, at a gathering in another apartment. Miles knew defendant
and said he spoke of having a gun, a "forty." After the shooting, when defendant
and Jones returned to the party, defendant told Miles he had gotten into an
altercation and "had to defend himself." Defendant said he did not mean to shoot
anyone. Miles also recalled that when defendant and Jones returned, Jones was
without his jacket. Miles said Jones and defendant left again to try and find the
missing jacket.
At the scene of the shooting, police recovered a jacket that contained court
documents belonging to Jones, who in turn, in his statement, identified
defendant. They also recovered a .40 caliber shell casing and a bullet fragment
on the walkway in front of Jacqueline's townhouse.
3
Although called as a State's witness, the prosecutor introduced Jones'
videotaped statement to police after the judge conducted a Gross hearing. State
v. Gross, 121 N.J. 1 (1990).
A-5290-17T1
6
An arrest warrant was issued for defendant on January 13, 2015; he was
not arrested until May 5, 2015, in North Carolina. Defendant did not testify or
call any witnesses.
II.
After the jury was selected and sworn, the prosecutor and defense counsel
gave opening statements, and Jacqueline and another State's witness testified,
the prosecutor prepared to call Jones as a witness. Anticipating the need to
redact some of Jones' statement before it was disclosed to the jury, the judge
released the panel for lunch. Apparently, members of both defendant's and the
victim's family were present, and the judge cautioned both to stay clear of the
jurors as they exited the courtroom and outside of court. The judge then said
without the jury present:
Counsel, before we address the issue with regard to the
statement . . . , I just wanted to indicate that my sheriff's
officer brought to my attention a few of the family
members had t-shirts on that said "Rest in Peace[,]" and
I think a picture of the victim in this case. I intend to
just let the jurors know — I don't think it's appropriate
for me to tell people they can't wear or honor their lost
relative; however, I just want to make sure the jurors
know that that has nothing to do with the evidence in
this case and it should have no influence on their
consideration of the evidence in any way, shape or
form.
A-5290-17T1
7
Both the prosecutor and defense counsel agreed with the judge's course of
action; defense counsel did not seek any further relief.
When the jury returned from lunch, the judge said:
I just wanted to let you know, this morning . . . one of
the Sheriff's Officers pointed out that some of the
members in — in the audience had some shirts on that
had words to the effect of rest in peace and a — a photo
of the victim in this case.
I just want to let you know that that should have
no bearing whatsoever on your view of the evidence in
this case or testimony.
Certainly, victims are allowed to remember a
loved one, but that has nothing to do — you're not to
base [sic] this case based upon any passion, prejudice
or sympathy in this case, only on the facts in the
testimony. So that should in no way influence your
view of the testimony in any way, shape or form. So[,]
I just want to make that clear to you again.
Defendant was represented by two attorneys throughout trial; neither one
objected to the judge's charge nor requested anything further.
Pursuant to Article I, paragraph 22 of the New Jersey Constitution, the
Legislature enacted the Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38.
In 2012, the Legislature passed "Alex DeCroce's Law," L. 2012, c. 27, which
ostensibly strengthened crime victim's rights and added a new provision
reiterating the right "in any homicide prosecution" of a "victim's survivor" to
A-5290-17T1
8
"display directly to the sentencing court a . . . still photograph, a computer-
generated presentation, or a video presentation of the victim" that was "taken
before the homicide[.]" N.J.S.A. 52:4B-36.1(a).4 The Legislature extended this
right, in a modified way, to "any judicial proceeding involving the defendant"
by providing:
A victim's survivor may . . . wear a button not
exceeding four inches in diameter that contains a
picture of the victim, if the court determines that the
wearing of such button will not deprive the defendant
of his right to a fair trial under the Sixth Amendment of
the United States Constitution and Article I of the New
Jersey Constitution. Other spectators at such judicial
proceedings may also wear similar buttons if the court
so determines. If the victim's survivor seeks to wear
the button at trial, the victim's survivor shall give notice
to the defendant and to the court no less than [thirty]
days prior to the final trial date.
[N.J.S.A. 52:4B-36.1(b).]
Defendant argues the statute obviously does not permit spectators to wear t-
shirts displaying a homicide victim's picture, much less including the phrase,
"Rest in Peace." We agree. Moreover, the Legislature itself recognized the
4
See Assemb. Comm. Statement to S. 2380 (June 18, 2012) ("The bill clarifies
and expands the current right of a victim's survivor to display a photograph of a
homicide victim, transferring that right to a new section of law (section 2 of the
bill) and adding the right of a victim's survivor to wear a button containing the
victim's picture." (emphasis added)).
A-5290-17T1
9
constitutional ramifications of such displays, limiting the size of any "button"
so as not to impinge on a defendant's right to a fair trial. See, e.g., State v. Hess,
207 N.J. 123, 156–60 (2011) (discussing prejudicial effects of victim-impact
statements and videos displayed at sentencing).
It appears that no one in the courtroom, including the judge, was familiar
with the statute. 5 However, defendant's precise argument is not that the judge
should have prohibited spectators from wearing a shirt with the victim's photo.
See State v. Castoran, 325 N.J. Super. 280, 284–85 (App. Div. 1999) (approving
of trial judge's order forcing defendant to change her shirt as within the court's
discretion "to maintain decorum and prevent conduct which may improperly
impact on the trial").
Rather, defendant argues the judge was required sua sponte to voir dire
the jurors regarding their observations of the shirts and what, if any impact, that
may have had on a juror's impartiality. Indeed, we agree with defendant that the
critical issue is not whether the shirts violated the statute, but whether their
presence in the courtroom so tainted the jury that defendant was denied a fair
trial. See, e.g., State v. Loftin, 191 N.J. 172, 187 (2007) ("A defendant's right
to be tried before an impartial jury is one of the most basic guarantees of a fair
5
No published case has addressed N.J.S.A. 52:4B-36.1(b).
A-5290-17T1
10
trial." (citations omitted)); State v. Brown, 442 N.J. Super. 154, 179 (App. Div.
2015) ("The Court has stressed that jurors must be 'as nearly impartial "as the
lot of humanity will admit."'" (quoting State v. Singletary, 80 N.J. 55, 62
(1979))).
Because defendant made no request to voir dire the jurors at trial, we must
consider whether the failure to do was plain error, i.e., error that was "clearly
capable of producing an unjust result." R. 2:10-2. "The possibility of an unjust
result must be 'sufficient to raise a reasonable doubt as to whether the error led
the jury to a result it otherwise might not have reached.'" State v. Ross, 229 N.J.
389, 407 (2017) (quoting State v. Williams, 168 N.J. 323, 336 (2001)). "The
'high standard' used in plain error analysis 'provides a strong incentive for
counsel to interpose a timely objection, enabling the trial court to forestall or
correct a potential error.'" State v. Santamaria, 236 N.J. 390, 404 (2019)
(quoting State v. Bueso, 225 N.J. 193, 203 (2016)).
The Court has said that
[u]ltimately, the trial court is in the best position to
determine whether the jury has been tainted. That
determination requires the trial court to consider the
gravity of the extraneous information in relation to the
case, the demeanor and credibility of the juror or jurors
who were exposed to the extraneous information, and
the overall impact of the matter on the fairness of the
proceedings.
A-5290-17T1
11
[State v. R.D., 169 N.J. 551, 559 (2001).]
As a result, we apply an abuse of discretion standard to the judge's decision.
Ibid. As the Court subsequently made clear, "the overarching relevant inquiry
is not whether the trial court committed error, but whether it abused its
discretion." State v. Wakefield, 190 N.J. 397, 496 (2007) (citing R.D., 169 N.J.
at 559).
Here, it was the judge who brought the shirts to the attention of the
attorneys, and it was the judge who concluded that any possible prejudice was
best addressed by issuing a curative instruction. He did so, in the clearest terms,
immediately after the jury returned from its luncheon recess. Defense counsel
did not request any other relief. Under the circumstances, we certainly cannot
conclude the judge mistakenly exercised his discretion. 6
To be sure, in the future, trial judges should acquaint themselves with
N.J.S.A. 52:4B-36.1(b). We do not necessarily conclude that the statute defines
the outer boundaries of the court's discretion regarding such displays during
6
In his brief, defendant, in a single sentence suggests alternatively we should
remand for the judge to create a more complete record, e.g., how many people
wore the shirts and for how long were those people in the courtroom with the
jury present. We see no need to do that. The incident occurred after Jacqueline's
testimony, and nothing in the record indicates she wore such a shirt or that the
shirts appeared again during the trial.
A-5290-17T1
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trial. However, the procedure for pre-trial notice is undoubtedly intended to
permit a defendant to lodge a timely objection, and for the judge to weigh in a
reasoned manner the exercise of her or his discretion.
III.
Jones was serving a sentence in State prison for "[e]luding and aggravated
assault" when the State called him as a witness. Before Jones was sworn and
outside the jurors' presence, the following occurred:
Judge: Can you hold up the jurors for a minute[]. Take
the cuffs off.
Court Officer: It comes – you want them completely
off?
Judge: The cuffs off. Yes. He – he can't have cuffs in
front of the jurors, yes.
Court Officer: Uh, I mean, he is in custody, though.
Judge: I understand. But he's not – he's not supposed
to have cuffs in front of jurors. Jurors shouldn’t see –
shouldn’t see him in cuffs.
Court Officer: Well, not – but not in his case.
Prosecutor: I think the only person is the defendant
can't be seen.
Court Officer: Yes.
Defense Counsel: Yes.
A-5290-17T1
13
Prosecutor: He can. He's – he's a State prisoner.
Court Officer: He's in custody.
Judge: It's not – it's not normally. Does anybody have
any objection to the cuffs staying on?
Prosecutor: No Judge. They're going to hear he's in
custody. I – I don't object.
Defense Counsel: Yes.
Judge: All right. Then that's fine.
Court Officer: If not, he would have been dressed.7
Judge: All right. All right. We could bring them in.
Defense Counsel: He's in custody.
Prosecutor: Yes. They've already heard he's in
custody, actually. We opened to it. 8
[(emphasis added).]
Defendant now contends it was error to permit Jones to testify in prison garb
and handcuffs and for the judge not to provide the appropriate model jury
7
We assume from the court officer's words that Jones was also in prison garb,
although there is no specific reference to his clothing in the record.
8
The prosecutor referenced Jones being in State prison during her opening
statement.
A-5290-17T1
14
charges in this regard. He also argues trial counsel provided ineffective
assistance by not objecting or requesting the instructions.
In State v. Kuchera, a State's witness, i.e., a co-defendant who had pled
guilty and was about to testify against the defendant, appeared at trial in prison
garb and leg shackles. 198 N.J. 482, 488–90 (2009). The defendant posed no
objection, id. at 489, however, on appeal, he contended the court should have
held "a hearing on the security issue and [issued] an appropriate jury instruction
in the event that the hearing led to restraints being kept on [the co-defendant]."
Id. at 493.
The Court held that "witnesses in criminal cases presumptively should be
allowed to testify without restraints." Id. at 496. However, the Court made clear
that whether to require restraints lies within the trial judge's discretion, guided
by "a straightforward, candid colloquy among the court, counsel and security
staff[.]" Ibid.
The Court also said that
regardless of the identity of the proponent of a witness,
trial courts have an independent obligation to gauge
whether a witness is a security risk sufficient to justify
the use of restraints . . . . [T]rial courts must inquire as
to the bases for the proposal and must be satisfied that,
for security concerns and in the proper exercise of
judicial discretion, some level of restraints is
appropriate . . . . [S]uch inquiry and conclusions must
A-5290-17T1
15
be spread on the record, to allow meaningful appellate
review . . . . [I]f the trial court in fact does order the use
of restraints, the jury must be instructed "in the clearest
and most emphatic terms that it give such restraint no
consideration whatever in assessing the proofs and
determining guilt."
[Id. 496–97 (emphasis added) (quoting State v. Artwell,
177 N.J. 526, 538 (2003)).]
It referred to committee the "adoption of a standard charge concerning the
appearance of a trial witness in restraints, consistent with the principles to which
we have adverted." Id. at 497 n.4. The result was the adoption of two model
jury charges, one to use for witnesses appearing in restraints, a second to use
when the witness appears in prison garb. See Model Jury Charges (Criminal),
"Witness – Testifying While Wearing Restraints" (approved May 12, 2014);
Model Jury Chagres (Criminal), "Witness – Testifying in Jail Garb or Prison
Garb" (approved May 12, 2014). In Kuchera, the Court ultimately held that
permitting the testifying co-defendant to appear in leg shackles that were likely
unobserved by the jury was not plain error. 198 N.J. at 498.
Initially, we reject the State's contention that somehow the judge's
decision in this case reflects the "informed . . . exercise [of the court's]
discretion." Id. at 496. From the colloquy quoted above, it is clear that although
nearly a decade had passed since the Court's holding in Kuchera, neither the
A-5290-17T1
16
prosecutor nor defense counsel were aware of it, and both led the judge — who
expressed initial concern for having Jones testify in handcuffs — astray by
telling him the prohibition only applied to defendants.
We equally reject defendant's implication that trial counsel did not consent
or acquiesce to the procedure. A fair reading of the colloquy demonstrates
otherwise. See State v. A.R., 213 N.J. 542, 561 (2013) (noting as "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.'" (quoting State v. Corsaro, 107 N.J. 339, 345 (1987))).
If not invited error, the issue becomes whether it was plain error to permit
Jones to testify in handcuffs and prison garb, particularly without any curative
instruction to follow. We conclude that any error in this regard was not "clearly
capable of producing an unjust result[.]" R. 2:10-2.
From the onset of trial, the jury knew Jones was serving a prison sentence.
Defendant contends Jones' appearance before the jury in handcuffs and prison
garb tainted its fair consideration of the evidence, because the jury would
associate defendant with this convicted person, who, the State contended, was
with defendant at the shooting. However, although Jones' statement supported
the State's case, his live testimony before the jury did not. Jones denied knowing
A-5290-17T1
17
defendant, or that defendant was with him at the time of the shooting. Jones
also testified that he feared being accused himself and was under the influence
when he gave his statement to police.
Jones admitted fabricating defendant's involvement, and, after feigning
any familiarity with firearms, acknowledged defense counsel's assertion that he
had been previously "convicted of having a firearm." In her summation, defense
counsel highlighted Jones' incarceration, the fact that he was supplying drugs at
the New Year's Eve party, and that all the State's witnesses "seem[ed] to be a
little bit afraid of [Jones]." In short, under the particular circumstances of this
case, any error in allowing Jones to testify in prison garb or handcuffs or in
failing to give the model charges was harmless beyond a reasonable doubt. 9
IV.
In her opening, the prosecutor told jurors that the State's witnesses were
reluctant to provide information to police and reluctant to testify. In summation,
she characterized the witnesses as "brave enough to come forward," and said
defendant "was apprehended, not by any help of him, because you heard about
his – the conduct post-shooting, after the shooting. What did he do? He
9
We preserve defendant's claims of trial counsel's ineffective assistance for
post-conviction relief. State v. Mohammed, 226 N.J. 71, 81 n.5 (2016).
A-5290-17T1
18
immediately fled the scene with Jihad Jones. He was ultimately arrested down
in North Carolina. And now he has a changed appearance."
After the summation, defense counsel requested a sidebar and argued the
prosecutor, who never requested a flight charge, implied defendant fled to North
Carolina because of his guilty conscience. The judge found "nothing improper"
or "unduly prejudicial" in the prosecutor's remarks. Although the record does
not reflect defense counsel asked for a curative charge, the judge said he was
"not going to give any instructions."
Defendant contends these comments amounted to prosecutorial
misconduct, and the judge's failure to provide a curative instruction requires
reversal. Again, we disagree.
While prosecutors are entitled to zealously argue the merits of the State's
case, State v. Smith, 212 N.J. 365, 403 (2012), they occupy a special position in
our system of criminal justice. State v. Daniels, 182 N.J. 80, 96 (2004). "[A]
prosecutor must refrain from improper methods that result in a wrongful
conviction[] and is obligated to use legitimate means to bring about a just
conviction." Ibid. (quoting State v. Smith, 167 N.J. 158, 177 (2001)). Even if
the prosecutor exceeds the bounds of proper conduct, however, "[a] finding of
prosecutorial misconduct does not end a reviewing court's inquiry because, in
A-5290-17T1
19
order to justify reversal, the misconduct must have been 'so egregious that it
deprived the defendant of a fair trial.'" Smith, 167 N.J. at 181 (quoting State v.
Frost, 158 N.J. 76, 83 (1999)).
It is clear from the record that the State's witnesses were reluctant and at
times evasive in their testimony. Characterizing them as "brave" was
unnecessary and inappropriate. The prosecutor admitted at sidebar that she had
no evidence demonstrating defendant's trip to North Carolina was predicated
upon his desire to avoid investigation or apprehension. The remarks may have
been better left unsaid.
However, there was evidence that defendant was at the scene of the
shooting and fled with Jones. There was also evidence that police secured a
statement from Jones shortly after the shooting in which he identified defendant,
but police were unable to locate defendant for five months. And, there was
evidence that defendant no longer wore dreadlocks when apprehended, a
defining feature of the shooter relayed to police by the witnesses at the scene.
Taking the entire summation in context, these brief remarks nears its closing did
not deprive defendant of a fair trial, nor did the judge's discretionary decision
not to provide a curative instruction require reversal.
A-5290-17T1
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V.
In his pro se brief, defendant raises two issues regarding the final jury
charge. He contends the judge's instructions on murder permitted the jury to
infer defendant acted purposefully or knowingly if the State proved motive or
proved he used a deadly weapon, here, a gun. He also contends it was error to
submit written copies of the charge to the jury during deliberations.
We have reviewed the judge's instructions which followed Model Jury
Charge (Criminal), "Murder, Passion/Provocation and Aggravated/Reckless
Manslaughter N.J.S.A. 2C:11-3(a)(1) and (2); 2C:11-4(a), (b)(1) and (b)(2)"
(rev. June 8, 2015), with slight alterations tailored to the facts of the case. Also,
Rule 1:8-8(b)(2) requires that "the court shall submit two or more copies of its
final instructions to the jury for the jury's use in the jury room during
deliberations." The arguments require no further discussion in a written opinion.
R. 2:11-3(e)(2).
Defendant also argues the judge should have charged self-defense.
Although there was ample time for defense counsel to review the charge and
submit requests or lodge objections to the judge's proposed charge, they never
did.
A-5290-17T1
21
"Our rules provide that a defendant waives the right to contest an
instruction on appeal if he does not object to the instruction." State v. Torres,
183 N.J. 554, 564 (2005) (citing R. 1:7-2). "We may reverse on the basis of
unchallenged error if we find error that was 'clearly capable of producing an
unjust result.'" Ibid. (quoting R. 2:10-2). The Court has said that
[i]n the context of a jury charge, plain error requires
demonstration of "[l]egal impropriety in the charge
prejudicially affecting the substantial rights of the
defendant 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. Burns, 192 N.J. 312, 341 (2007) (second
alteration in original) (emphasis added) (quoting State
v. Jordan, 147 N.J. 409, 422 (1997)).]
In the absence of a party's request or objection, the evidence in the record must
clearly indicate the need to provide the unrequested charge. State v. Alexander,
233 N.J. 132, 143 (2018); see also State v. Walker, 203 N.J. 73, 87 (2010)
(applying clearly indicated standard to affirmative defense to felony murder).
However, as the Court has recognized, "[a] different and more
complicated calculus pertains when reviewing a trial record for factual support
for an affirmative defense that defendant did not request and may have actively
opposed." State v. Daniels, 224 N.J. 168, 182 (2016). These "factors include
A-5290-17T1
22
whether counsel is surprised, how the case was tried, whether the defense is
incompatible with defendant's position at trial, or whether the instruction would
prejudice the defense in some way." State v. R.T., 205 N.J. 493, 510 (2011)
(Long, J., concurring) (citing State v. Choice, 98 N.J. 295, 300–01 (1985)). "It
goes without saying that a defendant who denies having committed a crime
should not be required to acknowledge, either explicitly or inferentially,
complicity in the event by way of a compelled affirmative defense." Id. at 511.10
In Daniels, the Court refined the analysis even further, setting out factors to
consider when the trial evidence supports an affirmative defense, even
imperfectly, yet defendant objects to the charge. 224 N.J. at 186–87.
The evidence here demonstrated that the victim physically assaulted
defendant, and, according to one witness, had defendant in a headlock. In his
statement to police, Jones said that defendant was attempting to get the victim
"off of him" when the gun discharged. However, the entire defense in the case
was that defendant was never present at the scene of the shooting. In summation,
defense counsel highlighted the lack of identification of defendant by any
10
An equally divided Court in R.T. affirmed our reversal of defendant's
conviction based on the trial court's decision to provide instructions on voluntary
intoxication over defendant's objection. 205 N.J. at 493. However, in Daniels,
the Court recognized that four justices, a majority of the Court, "agreed with the
analysis . . . in Justice Long's concurrence" in R.T. 224 N.J. at 184.
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witness at the scene, except for Dodd, whose out-of-court identification counsel
attacked. Counsel emphasized how everyone at both gatherings was impaired
from alcohol and drugs.
Unlike the defendants in R.T. and Daniels, defendant here never objected
to a charge on the affirmative defense of self-defense, nor did he request it. In
State v. Perry, the Court held the failure to sua sponte provide a self-defense
charge, even if supported by the record evidence, was not plain error. 124 N.J.
128, 163–64 (1991). As the Court explained, "forcing counsel to incorporate
defenses that pre-suppose the existence of the very fact his main method of
defense contests destroys the credibility and coherence of the defense entirely. "
Id. at 163. We subscribe to that view in this case, and do not find plain error
requiring reversal.
VI.
Although defendant does not challenge the judge's decision that he was
eligible for an extended term as a persistent offender pursuant to N.J.S.A. 2C:44 -
3(a), he argues the judge misunderstood the Court's holding in State v. Pierce,
188 N.J. 155 (2006), and concluded the applicable range for any term of
imprisonment was now ten-to-twenty years. He also argues the judge
A-5290-17T1
24
misapplied the aggravating and mitigating sentencing factors to both impose an
extended term and to set the term at eighteen years.
In Pierce, to meet Sixth Amendment standards, the Court explained that
after determining whether a defendant met "the minimum statutory eligibility
requirements for an extended-term sentence" under N.J.S.A. 2C:44-3(a), "the
range of sentences, available for imposition, starts at the minimum of the
ordinary-term range and ends at the maximum of the extended-term range." 188
N.J. at 168–69. In this case, that meant a term of imprisonment between five-
and-twenty years. The sentencing judge then may consider protection of the
public in assessing the aggravating and mitigating sentencing factors, but a
finding of the need to protect the public is "not a necessary condition" to
imposing "a sentence up to the top of the extended-term range." Id. at 170.
At the start of the sentencing proceeding, the judge granted the State's
motion to impose an extended term of imprisonment, noting that meant
"defendant [was] now eligible to be sentenced between [ten-]and[-twenty]
years." Defendant seizes on this remark as evidence that the judge
misunderstood Pierce and believed he had to impose an extended term of
imprisonment between ten and twenty years. The argument lacks sufficient
merit to warrant discussion. R. 2:11-3(e)(2). It suffices to say that later in the
A-5290-17T1
25
proceeding, the judge cited Pierce and demonstrated a complete understanding
of its holding.
The judge found aggravating sentencing factors one, three, six and nine.
See N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense); (a)(3) (the
risk of re-offense); (a)(6) (extent of prior record and seriousness of offense);
(a)(9) (need to deter defendant and others). After considering defendant's
arguments regarding applicable mitigating factors, see N.J.S.A. 2C:44-1(b), the
judge found none. Defendant's primary challenge is to the finding of
aggravating factor one, although he also contends certain mitigating factors
applied, as well as the non-statutory mitigating factor of defendant's relative
youth.
"Appellate review of the length of a sentence is limited." State v. Miller,
205 N.J. 109, 127 (2011). As the Court has reiterated:
The appellate court must affirm the 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. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364–65
(1984)).]
A-5290-17T1
26
A remand may be appropriate if the judge fails to perform the required
"qualitative analysis" of the factors or "considers an aggravating factor that is
inappropriate to a particular defendant or to the offense at issue." Ibid. (citing
State v. Kruse, 105 N.J. 354, 363 (1987); State v. Pineda, 119 N.J. 621, 628
(1990)).
Initially, we reject defendant's arguments that the judge improperly found
aggravating factors three, six or nine, or improperly failed to find applicable
mitigating factors. Defendant, who was twenty-five years of age at the time of
the crime and twenty-nine-years old when convicted, had four prior indictable
convictions, twenty-four adult arrests, multiple disorderly persons' convictions,
and had violated probation several times. Defendant also had an active
restraining order against him resulting from a domestic violence complaint.
These findings support the judge's determinations as to those aggravating factors
and the lack of any mitigating factors.
However, the judge mistakenly found aggravating factor one applied.
"Aggravating factor one requires the trial court to consider '[t]he nature and
circumstances of the offense, and the role of the actor therein, including whether
or not it was committed in an especially heinous, cruel, or depraved manner.'"
Id. at 74 (alteration in original) (quoting N.J.S.A. 2C:44-1(a)(1)). This factor
A-5290-17T1
27
requires the judge to "review[] the severity of the . . . crime[.]" Ibid. (quoting
State v. Lawless, 214 N.J. 594, 609 (2013)). In applying this factor, the court
must "scrupulously avoid 'double-counting' facts that establish the elements of
the relevant offense." Id. at 75 (citations omitted). "In appropriate cases, a
sentencing court may justify the application of aggravating factor one, without
double-counting, by reference to the extraordinary brutality involved in an
offense." Ibid. (citing State v. O'Donnell, 117 N.J. 210, 217 (1989)).
Here, the prosecutor did not contend that aggravating factor one applied
at all. The judge, however, concluded there was no double-counting by its
application because "defendant's actions came . . . much closer to either
aggravated manslaughter or murder[.]" He reasoned the "jury's reasonable doubt
that the State ha[d] prove[n] the mitigating elements of passion provocation
manslaughter is not the equivalent . . . of an affirmative finding of fact that the
defendant was reasonably provoked . . . and killed before reason ha[d] sufficient
time to regain its [s]way." This was a slight misstatement of something we said
in State v. Teat, 233 N.J. Super. 368, 373 (App. Div. 1989) ("A jury's reasonable
doubt that the State disproved the mitigating elements of passion/provocation
manslaughter is not the equivalent, for sentencing purposes, of an affirmative
A-5290-17T1
28
finding of fact that the defendant was reasonably provoked to passion and killed
before reason had sufficient time to regain its sway.") (emphasis added).
We made that statement in the context of rejecting the defendant's
argument that the jury's finding of passion-provocation manslaughter
automatically meant the judge must find mitigating factor three applied because
that would be double counting of mitigating factors. Id. at 372–73; see N.J.S.A.
44-1(b)(3) (the defendant acted under a strong provocation). Moreover, the facts
of Teat, which involved the defendant's vicious thirty-minute fatal beating of his
girlfriend and subsequent two-hour wait to call for medical assistance, fully
supported the judge's finding of aggravating factor one. Id. at 371. In short,
Teat had little application to the facts of this case, and there are no other factors
on the record before us that would support a finding of aggravating factor one.
While the sentence the judge imposed might otherwise be supported by
the remaining aggravating factors, we will not presume that to be the cas e. It is
clear from the sentencing transcript that the judge placed significant emphasis
on aggravating factor one. As a result, we vacate the sentence imposed and
remand the matter to the judge for re-sentencing anew without application of
aggravating factor one. We do not opine on an appropriate sentence.
A-5290-17T1
29
Affirmed in part, reversed in part. We vacate defendant's sentence and
remand to the trial court for resentencing in accordance with this opinion. We
do not retain jurisdiction.
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30