STATE OF NEW JERSEY VS. QUINNIZEL J. CLARK (17-01-0033, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-2755-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUINNIZEL J. CLARK,
Defendant-Appellant.
_________________________
Argued October 7, 2020 – Decided December 1, 2020
Before Judges Fuentes, Rose, and Firko (Judge Rose
concurring in part and dissenting in part).
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 17-01-
0033.
Daniel S. Rockoff, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Daniel S. Rockoff, of
counsel and on the briefs).
Valeria Dominguez, Deputy Attorney General, argued
the cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Kayla E. Rowe, Deputy Attorney
General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Quinnizel J. Clark appeals from a judgment of conviction for
murder and unlawful possession of a weapon and the life sentence imposed by
the trial court. Based on our review of the record in light of applicable law, we
are convinced that the cumulative effect of errors committed during the trial
rendered the trial unfair. Accordingly, we reverse defendant's conviction, vacate
his sentence, and remand for further proceedings.
I.
These are the facts adduced at trial. Defendant and the victim, sixty-eight-
year-old James Dewyer, who was physically disabled and homeless, were
acquaintances who knew each other from a circle of individuals who stayed at
the Riverfront Motel located on Route 130 in Mansfield Township and gambled
together. Defendant resided at the Riverfront Motel, a state-run low-income
shelter. Dewyer was a retired corrections officer with a substantial pension and
was known to give rides and spend time with individuals living at the Riverfront
Motel. Dewyer was defendant's gambling companion, and defendant called him
"Jimmy Dean." Both men enjoyed betting horse races.
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On January 3, 2016, at approximately 4:17 p.m., Sergeant Daniel Pachuta
of the Mansfield Township Police Department responded to a 9-1-1 call made
from Kinkora Road between Stratton Avenue and Third Street on a one-hundred-
foot-long unfinished side street called Monica Drive. Sergeant Pachuta arrived
at the location and met the caller, Dan Michal, who pointed to a parked vehicle
facing the woods. Michal testified that he approached the vehicle and saw a
man, later identified as Dewyer, inside with his head slumped as if he was
"drunk" or "sleeping."
Sergeant Pachuta approached the vehicle and saw Dewyer in an upright
position in the passenger seat facing forward wearing his seatbelt but
unresponsive to attempts to get his attention. Dewyer was warm to the touch
but had no pulse and was not breathing. When paramedics arrived and lifted
Dewyer out of the car seat, blood poured out of a wound to his abdomen.
Dewyer never regained consciousness. Paramedics informed Sergeant Pachuta
that Dewyer was shot multiple times.
At trial, the medical examiner testified Dewyer sustained a prominent
gunshot wound on his left side underneath his ribs. Five bullets created three
overlapping entrance wounds, which left a large hole in the side of Dewyer's
body. Near his underarm was a "two-and-a-half-inch zone of dense gunpowder
A-2755-17T1
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stippling and soft tissue abrasion," meaning the gun "was stuck into Dewyer's
side and touching it when it was discharged." In addition, the medical examiner
testified that Dewyer had used heroin within thirty minutes of his death. The
officers concluded that three cartridges found inside the vehicle were all fired
from the same weapon. However, the weapon was never recovered.
Investigator Tim Horne from the Burlington County Prosecutor's Office
took over the case and collected evidence, including Dewyer's wallet containing
his driver's license, his retirement credentials, a one-dollar bill, and a Delaware
Park Casino betting ticket from the morning stamped 9:52 a.m. Several officers
went to the casino and obtained video footage depicting Dewyer. The footage
also showed a black male, later identified as defendant, buying the betting ticket
and handing it to Dewyer. The investigator also found a Burlington County Jail
bail receipt in Dewyer's glove compartment box, indicating Dewyer had posted
$1500 bail for defendant on October 30, 2015.
Video footage obtained from the Riverfront Motel, where defendant was
registered, showed Dewyer arriving in his vehicle at 7:00 a.m. on the day of the
murder. Defendant emerged from a residential area at 7:08 a.m., and the two
drove away. They arrived at the casino at 8:34 a.m. as confirmed by video
footage. At 11:01 a.m., defendant and Dewyer left the casino and returned to
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the Riverfront Motel at 12:21 p.m. in Dewyer's vehicle, a silver Dodge Avenger.
Defendant drove Dewyer's vehicle because Dewyer complained of leg pain.
After returning to the Riverfront Motel, Dewyer remained in his vehicle and
smoked a cigarette while defendant went to his room for about an hour. At 1:34
p.m., defendant placed a backpack on the back seat, and the two drove away.
On January 13, 2016, officers interrogated defendant. In a recorded
statement, defendant told the officers that on January 3, 2016, around 1:00 p.m.
to 1:30 p.m., Dewyer dropped him off in the Roebling section of Florence
because defendant had to complete a transaction in that area. Defendant thought
Dewyer planned to pick up young women afterwards, something that he
"always" did. According to defendant, he walked back to the Riverfront Motel
in twenty or thirty minutes after he completed his transaction in Roebling.
Video footage from the Riverfront Motel showed defendant returning at
3:37 p.m. with an unidentified woman. They left together in a vehicle shortly
thereafter, and defendant returned alone eight minutes later at 3:45 p.m.
Defendant had the backpack he carried when he entered Dewyer's vehicle earlier
that morning. Dewyer was not with defendant and the woman. When officers
pressed defendant for an alibi, he repeatedly requested assistance of counsel , but
his request was not heeded.
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The surveillance footage from the Riverfront Motel showed defendant
wearing dark blue jeans with white sneakers and a light-colored long sleeve shirt
when he and Dewyer returned from Delaware. Later in the afternoon, defendant
was depicted on surveillance footage wearing a dark colored hoodie. When he
returned to the motel at 3:28 p.m., he was still wearing a dark colored hoodie,
dark pants, and white sneakers.
Although defendant told law enforcement officers that he was in Roebling,
surveillance footage reviewed by the officers did not bear out his claim. When
questioned about where he was after leaving the Riverfront Motel, defendant
could not provide an alibi. Defendant simply told investigators that Dewyer
dropped him off in Roebling because he had something to do there.
On January 18, 2017, defendant was charged under indictment number 17-
01-0033 with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and 2C:11-3(a)(2)
(count one); second-degree possession of a handgun for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1) (count two); and second-degree unlicensed possession
of a handgun, N.J.S.A. 2C:39-5(b)(1) (count three).
Prior to trial, defendant moved first to suppress his July 8, 2016 statement
and later to suppress his January 13, 2016 statement to the police. Defendant
argued that his January 13, 2016 statement should be suppressed because he was
A-2755-17T1
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effectively under arrest at the time of interrogation, and the failure of the officers
to inform him of his custodial status impacted a knowing, voluntary, and
intelligent waiver of his Miranda1 rights. The trial court previously denied
defendant's motion to suppress his July 8, 2016 statement, noting in an oral
decision that it's "[seventy-four] pages of denial" and "wouldn't harm the
defendant."
In a written memorandum and order, the trial court also denied defendant's
motion to suppress his January 13, 2016 statement. At the time of his
interrogation on January 13, 2016, there was an outstanding municipal warrant
for defendant's arrest, which police did not disclose prior to questioning him.
Before the interrogation began, the police informed defendant, "You're not
under arrest, but it's a murder investigation." Defendant consented to the
interrogation. However, when the interrogation ended, the officers arrested
defendant on the outstanding municipal warrant. The trial court concluded that
"the decision of the police to withhold information about the outstanding
municipal warrant had no bearing on defendant's knowing, voluntary and
intelligent waiver of his rights."
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2755-17T1
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During the subsequent jury trial, the State presented two pieces of
evidence to challenge defendant's claim that he left Dewyer in Roebling. Sandra
and Jeffrey Carver testified that at 2:30 p.m. on January 3, 2016, they drove their
tractor past a man walking along Kinkora Road where Dewyer was found dead.
The Carvers noticed a silver car pulled to the side of an unfinished road between
Second and Third streets. They slowed down and saw a man walking up Kinkora
Road. Sandra2 described a "large, tall" man, "over six f[ee]t and over 200
pounds," "in blue jeans," carrying a "black" backpack, and possibly wearing a
"red," "orange," or "yellow" hoodie. She further testified that the man
"definitely was not black," but "could have been a mix." 3
Jeffrey testified that the man wore "dark pants," a "dark jacket," a "black
backpack" with a "silver trim," and "a little bit of red or bright color around the
neck area," or "red and white," possibly from a "hooded sweatshirt." According
to Jeffrey, the man's "skin coloring was a light tan. He wasn't a white person."
After loading their tractor onto their pickup truck, the Carvers stopped to see if
2
Because these two witnesses have the same last name, we will refer to them
by their first names. We do not intend any disrespect.
3
We recognize the word "mix" in this context may be considered offensive or
racially insensitive. We have nevertheless decided to quote the witness'
testimony verbatim in the interest of clarity.
A-2755-17T1
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anyone was inside the oddly parked silver car. They did not notice anyone in
the silver car and went home. The Carvers never identified defendant in court
or from a photo array, or in any other type of identification procedure.
Nonetheless, during his summation to the jury, the assistant prosecutor argued
that based upon the Carvers' "description," the person they saw that day "was
the defendant."
The State also presented other witnesses, including John Hauger, an FBI
special agent, who was qualified and admitted, without objection, as an expert
witness "in the area of cellphone technology, cell cite analysis and cellular
records analysis." Hauger testified about defendant's historical cellular site data
on the day of the murder. Defendant voluntarily gave his cellphone number to
the investigating officers. After reviewing defendant's cellphone records,
Hauger opined that between 2:06 p.m. and 3:09 p.m., defendant's cellphone was
in a cellular coverage area that encompassed the crime scene. Of the twenty -
three calls and text messages made from defendant's cellphone on the afternoon
in question, Hauger concluded "none" were "made in the section that included
Kinkora Road and the crime scene," and "none" were "generated in Roebling."
A Riverfront Motel resident, Charlene Rivera, overheard a conversation
between defendant and Dewyer a few weeks before the murder. According to
A-2755-17T1
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Rivera, she heard the two men "hollering and screaming" about money in front
of her motel room door. Rivera also testified that she gave Dewyer coffee before
he and defendant left for the casino, and she gave Dewyer lunch when they
returned at 12:21 p.m. She testified the two appeared "friendly" and "normal."
Nancy Cristinzio, another Riverfront Motel resident, testified that Dewyer
lived in his vehicle, but was at the motel on a daily basis giving rides to residents.
Cristinzio and Rivera both denied ever seeing defendant with a firearm . But
Cristinzio heard defendant talking about a firearm in the several weeks
preceding Dewyer's murder. Cristinzio testified that defendant asked Dewyer
to retrieve a firearm from room number eleven, and Dewyer refused to do so.
At least part of the time, defendant resided in room eleven. Defendant did not
testify at trial.
During his summation to the jury, the prosecutor referred to the video
recording from the casino, depicting defendant and Dewyer, in a manner
intended to malign defendant's character:
Now, [defendant] acknowledges James Dewyer has
these bad legs, he could hardly get around. But does
his good friend, Quinnizel Clark, drop [Dewyer] off at
the front door of that casino? No, he goes and parks,
gets out of the car, leaves [Dewyer] in the car, walks
into the casino, is gambling for a period of time and
then finally you see [Dewyer] come walking out. He
doesn't try to help him into the casino. He doesn't try
A-2755-17T1
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to walk with him. He doesn't stay with him. He's not
his friend. He's using him.
Without any evidential basis in the record, the prosecutor then told the
jury that defendant changed his clothes when he arrived at the Riverfront Motel
the afternoon of the murder to avoid identification. The prosecutor argued:
"Well, why in that short nine minute period of time does he have to change
clothes? Well, I submit to you, he just killed somebody and he's trying not to
be seen in the same clothing so he can't be identified."
Then, without defendant having the benefit of counsel at the time he gave
his recorded statement, the prosecutor argued to the jury:
You heard his statement, when he tells Detective
Raynor he's down there doing business in Roebling,
Detective Raynor practically begged him, well, who
you were with, tell us you're with, we'll go out, track it
down and talk to this person. No, I'm not gonna tell you
who I was with.
[Emphasis added.]
The jury convicted defendant of murder, second-degree possession of a
handgun for an unlawful purpose, and second-degree unlawful possession of a
handgun. The sentencing judge imposed life imprisonment subject to the
requirements of the No Early Release (NERA), N.J.S.A. 2C:43-7.2. This appeal
followed.
A-2755-17T1
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II.
Defendant's counsel presents the following arguments for our
consideration:
POINT I
THE COURT ERRED BY NOT GIVING ANY
IDENTIFICATION INSTRUCTION AFTER THE
PROSECUTOR ARGUED THAT EYEWITNESSES
SAW [DEFENDANT] AT THE HOMICIDE SCENE.
(Not Raised Below).
1. THE PROSECUTOR'S THEORY AT
TRIAL WAS THAT, DESPITE THE
DEFENDANT'S DENIAL,
EYEWITNESSES SAW HIM AT THE
CRIME SCENE.
2. THE COURT FAILED TO INSTRUCT
JURORS THAT THE PERPETRATOR'S
IDENTITY WAS AKIN TO AN
ELEMENT WHICH THE STATE HAD
THE BURDEN OF PROVING BEYOND
A REASONABLE DOUBT.
3. THE COURT FAILED TO INSTRUCT
JURORS ON ESTIMATOR VARIABLES,
WHICH WERE ESSENTIAL TO
EVALUATING THE RELIABILITY OF
THE EYEWITNESS TESTIMONY.
4. THE COURT'S FAILURE TO
ADMINISTER ANY IDENTIFICATION
INSTRUCTION WAS CLEARLY
CAPABLE OF CAUSING AN UNJUST
RESULT.
A-2755-17T1
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POINT II
THE COURT ERRED BY ADMITTING AN FBI
AGENT'S OPINION THAT CELLPHONE
LOCATION DATA WAS INCULPATORY.
1. THE CELLPHONE LOCATION DATA
SHOULD HAVE BEEN SUPPRESSED,
BECAUSE IT WAS THE POISONED
FRUIT OF INTERROGATORS'
FAILURE TO HONOR THE
DEFENDANT'S UNEQUIVOCAL
INVOCATION OF HIS RIGHT TO
COUNSEL.
2. AS IN STATE V. CARRERA,4 AN FBI
AGENT'S OPINION DISPARAGING
THE DEFENSE SHOULD HAVE BEEN
EXCLUDED AS UNRELIABLE. THE
AGENT FAILED TO FOLLOW BEST
PRACTICES, AND IMPARTIAL
EVIDENCE CONTRADICTED HIM.
3. BECAUSE THE STATE COULD NOT
PROVE THAT THE DEFENDANT
TOOK THE PHONE WITH HIM WHEN
HE LEFT THE MOTEL, THE
CELLPHONE EVIDENCE WAS NOT
PROBATIVE OF THE DEFENDANT'S
4
State v. Richard Carrera, A-5486-16 (App. Div. Aug. 26, 2019) (slip. op.), is
an unpublished opinion. Pursuant to Rule 1:36-3, "no unpublished opinion shall
constitute precedent or be binding upon any court." Unreported decisions "serve
no precedential value, and cannot reliably be considered part of our common
law." Trinity Cemetery v. Wall Twp., 170 N.J. 39, 48 (2001) (Verniero, J.
concurring).
A-2755-17T1
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LOCATION, AND SHOULD HAVE
BEEN EXCLUDED.
4. THE COURT ALSO ERRED BY
ADMITTING THE FBI AGENT'S
MISLEADING BLOWN-UP MAP IN
SUPPORT OF HIS OPINION
TESTIMONY.
5. THE PREJUDICIAL IMPACT OF THE
FBI AGENT'S OPINION WAS
CLEARLY CAPABLE OF CAUSING AN
UNJUST RESULT.
POINT III
THE COURT ERRED BY LETTING JURORS HEAR,
WITHOUT ANY LIMITING INSTRUCTION, THAT
THE DEFENDANT EXERCISED HIS RIGHTS TO
COUNSEL, BAIL, AND THE KEEPING OF A
FIREARM IN THE HOME. (Not Raised Below).
1. THE COURT ERRED BY
ADMITTING EVIDENCE, WITHOUT
ANY LIMITING INSTRUCTION, THAT
THE DEFENDANT INVOKED HIS
FIFTH AMENDMENT RIGHT TO
COUNSEL WHEN INTERROGATORS
ASKED HIM ABOUT HIS ALIBI.
2. THE COURT ERRED BY
ADMITTING EVIDENCE, WITHOUT
ANY LIMITING INSTRUCTION, THAT
THE DEFENDANT HAD PREVIOUSLY
BEEN INCARCERATED AND WAS
OUT ON BAIL AT THE TIME OF THE
OFFENSE.
A-2755-17T1
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3. THE COURT FAILED TO INSTRUCT
THE JURY THAT IT IS LEGAL TO
KEEP EVEN AN UNLICENSED
FIREARM IN ONE'S OWN RESIDENCE.
POINT IV
A RESENTENCING REMAND IS REQUIRED
BECAUSE THE COURT IMPOSED A LIFE TERM
WITHOUT EXPLAINING WHY THE [THIRTY]-
YEAR STATUTORY MINIMUM WOULD NOT
SUFFICE.
In his pro se supplemental brief, defendant presents the following
arguments:
POINT I
PROSECUTION COMMITTED MISCONDUCT AND
BRADY5 VIOLATION BY FAILING TO PROVIDE
AUDIO TRANSCRIPTS OF ALL WITNESSES TO
THE DEFENSE. TRIAL COURT ERRED IN
ADMITTING WITNESS TESTIMONY OF NANCY
CHRISTINZIO AND CHARLENE RIVERA, WHERE
THE DEFENSE HAD NOT RECEIVED THEIR
TRANSCRIPTS. TRIAL COURT ERRED IN
ALLOWING THE PROSECUTION TO VIOLATE
SEVERAL N.J. COURT RULES WHICH CAUSED A
MANIFEST DENIAL OF JUSTICE UNDER THE
LAW.
POINT II
TRIAL COURT ERRED BY FAILING TO BASE
RULINGS "ON THE LAW" AND "ON THE FACTS."
5
Brady v. Maryland, 373 U.S. 83 (1963).
A-2755-17T1
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TRIAL COURT ERRED IN BASING RULINGS OFF
OF FACTS NOT IN EVIDENCE. TRIAL COURT
ERRED IN ABUSING ITS DISCRETION.
POINT III
TRIAL COURT ERRED BY ABUSING ITS
DISCRETION WITH BIASED AND HIGHLY
PREJUDICIAL STATEMENTS THAT DENIED THE
DEFENDANT A FAIR TRIAL.
POINT IV
TRIAL COURT ERRED VIOLATING
DEFENDANT'S FIFTH, SIXTH, AND
FOURTEENTH AMENDMENT RIGHTS
GUARANTEED BY THE UNITED STATES
CONSTITUTION.
Defendant challenges his conviction based on numerous claims
concerning alleged errors by the trial court, most of which were not raised before
the trial court. Therefore, unless otherwise noted, we consider the alleged errors
under the plain error standard. R. 2:10-2. "'A defendant who does not raise an
issue before a trial court bears the burden of establishing that the trial court's
actions constituted plain error'" because "'to rerun a trial when the error could
easily have been cured on request[] would reward the litigant who suffers an
error for tactical advantage either in the trial or on appeal.'" State v. Santamaria,
236 N.J. 390, 404-05 (2019) (quoting State v. Ross, 229 N.J. 389, 407 (2017)).
A-2755-17T1
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Under the plain error standard's "high bar," id. at 404, "[w]e may reverse
. . . only if the error was 'clearly capable of producing an unjust result,'" Ross,
229 N.J. at 407 (quoting 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.'" Ibid. (quoting State v. Williams,
168 N.J. 323, 336 (2001)).
Although we are compelled to assess most of defendant's arguments under
the plain error standard, we must also consider the cumulative effect these errors
had on defendant's fundamental right to a fair trial. State v. Jenewicz, 193 N.J.
440, 473 (2008). In doing so, we must determine whether "the probable effect
of the cumulative error was to render the underlying trial unfair," State v.
Wakefield, 190 N.J. 397, 538 (2007), thereby "dictat[ing] the grant of a new trial
before an impartial jury." Ibid. (quoting State v. Orecchio, 16 N.J. 125, 129
(1954)).
For the first time on appeal, defendant contends the trial court erred by
not giving an identification instruction after the prosecutor presented evidence
and argued in summation that the Carvers saw defendant at the crime scene.
More particularly, defendant argues the State had the burden of proving the
perpetrator's identity beyond a reasonable doubt but instead convicted him on
A-2755-17T1
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purely speculative proofs in violation of his Fifth, Sixth, and Fourteenth
Amendment rights. U.S. Const. Amends V, VI, and XIV and N.J. Const. Art. I,
para.10.
Defendant further asserts the prosecutor reinforced the notion that the
Carvers saw him at the homicide scene when in fact no identification procedure
ever took place during the course of the investigation, and no in -court
identification of defendant was made. The Carvers merely testified in a general
manner about their observations of a man they saw on the day in question near
the murder scene. The prosecutor noted in his summation that there were no
eyewitnesses to Dewyer's murder but defendant was the man the Carvers saw
based on the timeline defendant provided, his lack of cellphone activity at that
time, and what the Carvers said they saw about a man matching defendant's
description.
“[I]f the defendant does not object to the charge at the time it is given
[. . .] there is a presumption that the charge was not error and was unlikely to
prejudice [his] case.” State v. Singleton, 211 N.J. 157, 182 (2012) (citing State
v. Macon, 57 N.J. 325, 333-34 (1971)). The appellate court reviews the jury
charge for plain error and evaluates the charge as a whole. State v. Mann, 132
N.J. 410, 417-18 (1993). Model Jury Charges (Criminal) "Identification: No In-
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or Out-of-Court Identification" (approved October 26, 2015) provides for a jury
instruction when defendant's defense is that he or she did not commit the crime,
and the State is seeking to prove his or her guilt without adducing direct
identification evidence:
(Defendant), as part of his/her general denial of guilt,
contends that the State has not presented sufficient
reliable evidence to establish beyond a reasonable
doubt that he/she is the person who committed the
alleged offense. The burden of proving the identity of
the person who committed the crime is upon the State.
For you to find this defendant guilty, the State must
prove beyond a reasonable doubt that this defendant is
the person who committed the crime. The defendant
has neither the burden nor the duty to show that the
crime, if committed, was committed by someone else,
or to prove the identity of that other person. You must
determine, therefore, not only whether the State has
proven each and every element of the offense charged
beyond a reasonable doubt, but also whether the State
has proven beyond a reasonable doubt that this
defendant is the person who committed it.
Here, the trial court explained the difference between direct and
circumstantial evidence to the jurors and that they should carefully scrutinize
any circumstantial evidence. Further, the trial court explained the elements of
murder the State had to prove beyond a reasonable doubt "that the defendant
caused [Dewyer's] death" and "the defendant did so purposely or knowingly."
Defense counsel agreed to the jury charge and acknowledged she had no
A-2755-17T1
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objections. Nonetheless, we are concerned that the Carvers' testimony was
impermissibly suggestive and prejudicial to defendant, and the jury may have
erroneously drawn a conclusion that he was the perpetrator.
Although not briefed by the parties, we are convinced that on remand, the
trial court should conduct a Rule 104(a) hearing outside the presence of the jury
as to the admissibility of Sandra and Jeffrey Carver's testimony. 6 Indeed, Rule
104(a) provides for a hearing when the admissibility of evidence "is in issue."
A Rule 104(a) hearing addresses "preliminary evidence questions that are
the exclusive province of the court . . . ." See Biunno, Current N.J. Rules of
Evidence, comment on Rule 104(a) (2020-2021). The matter under review does
not fall under the ambit of United States v. Wade, 388 U.S. 218 (1967), 7 because
it does not involve show-up identification. Defense counsel did not object to
6
Rule 104 provides in pertinent part: (a) In General.
(1) The court shall decide any preliminary question
about whether a witness is qualified, a privilege exists,
or evidence is admissible . . .
(2) The court may hear and determine such matters out
of the presence or hearing of the jury.
7
A Wade hearing is conducted for the purpose of determining whether an out-
of-court identification was made in unduly suggestive circumstances and, if so,
whether or not any ensuing in-court identification procedure would be fatally
tainted thereby. State v. Henderson, 208 N.J. 208, 238 (2011).
A-2755-17T1
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admission of the Carvers' testimony at trial. Nonetheless, we conclude that the
trial court must conduct a Rule 104(a) hearing to ascertain if the proffered
testimony by the Carvers would aid the jury as the trier of fact in deciding the
merits of the controversy or whether the Carvers' testimony may cause undue
prejudice in the minds of the jurors and should be barred.
If after the Rule 104(a) hearing the trial court finds from the totality of
the circumstances that the Carvers' testimony should not be suppressed, and their
testimony should be admitted at trial, then the court "should provide appropriate,
tailored jury instructions" explaining how the evidence is to be considered.
Henderson, 208 N.J. at 289.
III.
Next, defendant argues that in order to challenge his defense that he was
never at the crime scene, the prosecutor had special FBI agent Hauger opine that
a servicer's data about a cellphone was incriminating. Defendant argues that the
trial court erred by admitting Hauger's testimony because (1) law enforcement's
knowledge of defendant's cellphone was the fruit of a statement impermissibly
taken by the interrogator after he invoked his right to counsel under Miranda;
(2) Hauger's testimony was demonstrably unreliable; and (3) the blown-up map
supplementing Hauger's opinion was highly misleading.
A-2755-17T1
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Defendant provided his cellphone number and cellular service provider to
Detective Wayne Raynor after being advised of his rights. With this
information, the historical cell site data analysis was obtained and given to
Hauger, who in turn explained the concept to the jury. On January 13, 2016,
Detective Raynor went to the Riverfront Motel to contact defendant—a person
of interest in Dewyer's murder—based on the casino surveillance footage.
Defendant agreed to speak with officers at the police station. As they entered
the interview room, Detective Raynor advised defendant of his Miranda rights,
and asked whether he felt comfortable speaking with them, to which defendant
agreed.
Defendant explained how he knew Dewyer and how he was his "gambling
buddy." He explained that Dewyer was living at the Riverfront Motel, sleeping
in his car, or a nearby truck stop's massage chairs. On January 3, 2016,
defendant explained he went with Dewyer to Delaware Parks Casino, as they
did every Sunday. Defendant further volunteered that when they returned,
Dewyer wanted to go to another casino, but defendant had a date that night and
declined to go. Defendant was hesitant about telling detectives about his
transaction in Roebling, but detectives reassured him they just wanted
A-2755-17T1
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information about where Dewyer was at the time so they could figure out what
happened to him that day.
Defendant proceeded to inform the detectives he assumed Dewyer took
Route 130 to pick up a friend's daughter from a truck stop. After finishing his
business in Roebling, defendant returned to the Riverfront Motel and went on
his date—dinner at Carlucci's in Delran and ending at the Aloft hotel. After
detectives steered the discussion as to what happened with Dewyer, defendant
became defensive, stating: "You say it's game over, charge me, call my attorney,
Mr. Keesler over here, charge me and let's go. Plain and simple." Defendant
reiterated that he wanted his attorney and was arrested on an outstanding
municipal warrant for a traffic violation.
The detective searched defendant and asked several basic questions
including, "What's your phone?" In reply, defendant provided his cellphone
number, which led to Detective Raynor learning defendant's cellphone provider
was T-Mobile. On August 29, 2017, defendant moved to suppress his January
13, 2016 statement arguing that police did not inform him he was the target of a
homicide investigation or there was an outstanding warrant. Consequently,
defendant argued since his statement should be found inadmissible, Hauger's
opinion should likewise be barred.
A-2755-17T1
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On September 1, 2017, the trial court issued a written decision and aptly
noted that defendant did not admit guilt in either statement he gave to police.
The court observed that defendant "was informed of the nature and focus of the
inquiry, a murder investigation, and expressed a willingness to speak with the
police." Defendant was informed he was a suspect and the detectives had no
obligation to tell him about a non-existent charge. Moreover, the trial court
correctly determined that the case defendant relied upon, State v. A.G.D., 178
N.J. 56 (2003), did not hold that the target of an interrogation must be advised
of all outstanding complaints or arrest warrants unrelated to the subject of the
interrogation.
Miranda's protection extends only to acts of police officers "reasonably
calculated to elicit an incriminating response." State v. Bohuk, 269 N.J. Super.
581, 594 (App. Div. 1994) (quoting State v. Lozada, 257 N.J. Super. 260, 268
(App. Div. 1992)). "To fall afoul of that rule, the defendant's statement must
have been the product of police questioning or its functional equivalent." Ibid.Thus, interrogation under Miranda denotes questions, words, or actions by the
police that they "should know are reasonably likely to elicit an incriminating
response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980)
(footnotes omitted).
A-2755-17T1
24
"[B]ooking procedures and the routine questions associated [with that
process] are ministerial in nature and beyond the right to remain silent." Bohuk,
269 N.J. Super. at 593 (second alteration in original) (quoting State v. Mallozzi,
246 N.J. Super. 509, 515 (App. Div. 1991)). "[U]nexpected incriminating
statements made by in-custody defendants in response to non-investigative
questions by the police without prior Miranda warnings are admissible."
Mallozzi, 246 N.J. Super. at 516; see State v. Ward, 240 N.J. Super. 412, 419
(App. Div. 1990) (statements "voluntarily blurted out by an accused in custody
where the police have not subjected him to an interrogative technique or where
the police are about to begin giving the Miranda warnings are . . . admissible
without Miranda warnings."). Thus, the arrest warrant for defendant's traffic
violation was immaterial to the Miranda analysis.
We consider whether a question asked by the police is reasonably related
to a legitimate administrative concern. State v. Cunningham, 153 N.J. Super.
350, 354 (App. Div. 1977). Our jurisprudence has broadly interpreted the scope
of an officer's administrative duties and excepted from the definition of
interrogation questions by police that are "ministerial in nature" or "normally
attendant to arrest and custody." Mallozzi, 246 N.J. Super. at 515-16; State v.
Stever, 107 N.J. 543, 561 (1987).
A-2755-17T1
25
In Cunningham, police detectives questioned the defendant at
headquarters, and he invoked his right to remain silent. 153 N.J. Super. at 350.
The detectives then asked defendant for the names of any people living at his
address, to which he obliged, lead the police to gather evidence. Id. at 351. The
trial court suppressed the evidence, but we reversed, ruling that the officer's
subjective intent was not controlling. Id. at 353-54. We held that "the
information sought by the detective as to [Cunningham]'s address and the name
of the person with whom he was living was ministerial in nature and outside the
constitutional protection afforded against self-incrimination." Id. at 354.
The case under review here is analogous to Cunningham. After defendant
invoked his right to an attorney, Detective Raynor asked him for his phone
number, and defendant provided his cellphone number. In State v. Andrews,
243 N.J. 447, 485 (2020), our Court recently held that a court order requiring a
criminal defendant to disclose the passcodes to his passcode-protected cellphone
did not violate the self-incrimination clause of the Fifth Amendment to the
United States Constitution or New Jersey's common law or statutory protections
against self-incrimination. Therefore, the trial court appropriately allowed the
historical cell site data information and analysis based on defendant's admissible
statement regarding same, and we discern no error.
A-2755-17T1
26
We are not persuaded by defendant's argument that the judge erred in
allowing Hauger to testify. Hauger explained the limitations of historical cell
data analysis and defense counsel had an opportunity to cross-examine him.
Moreover, defendant did not present a rebuttal witness on historical cell site data
information.
Expert testimony is admissible when "scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue" and the proposed expert has the requisite
"knowledge, skill, experience, training, or education" to form an expert opinion.
Rule 702. There are three requirements for admission of expert testimony:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)
the field testified to must be at a state of the art such
that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to
offer the intended testimony.
[State v. Kelly, 97 N.J. 178, 208 (1984).]
It is well-established that New Jersey courts apply the general acceptance
within a scientific community test set forth in Frye v. United States, 293 F. 1013(D.C. Cir. 1923), to determine the admissibility of expert testimony in criminal
cases. While our Supreme Court "adopted the factors identified in Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 593-95 (1993), and a methodology-
A-2755-17T1
27
based approach for determining scientific reliability in certain areas of civil law,
[the Court has] not altered [its] adherence to the general acceptance test for
reliability in criminal matters." State v. Cassidy, 235 N.J. 482, 492 (2018).
"Proof of general acceptance within a scientific
community can be elusive," and "[s]atisfying the test
involves more than simply counting how many
scientists accept the reliability of the proffered
[technique]." State v. Harvey, 151 N.J. 117, 171
(1997). General acceptance "entails the strict
application of the scientific method, which requires an
extraordinarily high level of proof based on prolonged,
controlled, consistent, and validated experience." Ibid.(quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421,
436 (1991)). The proponent of the technique has the
burden to "clearly establish" general acceptance, State
v. Johnson, 42 N.J. 146, 171 (1964), and may do so
using "(1) expert testimony, (2) scientific and legal
writings, and (3) judicial opinions," State v. Cavallo, 88
N.J. 508, 521 (1982)[.]
[Ibid. (alterations in original).]
"Whether expert testimony is sufficiently reliable to be admissible under
[Rule] 702 is a legal question we review de novo." State v. J.L.G., 234 N.J. 265,
301 (2018). "When reviewing a decision on the admission of scientific
evidence, an appellate court should scrutinize the record and independently
review the relevant authorities, including judicial opinions and scientific
literature." Harvey, 151 N.J. at 167.
A-2755-17T1
28
The trial court correctly allowed Hauger's testimony. His analysis was
based on scientific methods generally accepted as reliable, particularly within
the confines of this case. The coverage maps were illustrative of Hauger's
opinion countering defendant's theory that he was not in the coverage area where
Dewyer was murdered. The actual testimony at trial establishes that there was
no plain error. We note that defendant never challenged the scientific reliability
of the historical cell site data analysis or the coverage maps Hauger testified to.
The jury heard Hauger offer an opinion and was free to give it whatever weight
they deemed appropriate.
IV.
Lastly, defendant argues he was unfairly portrayed as a criminal with a
guilty conscience because he invoked his right to counsel; exercised his right to
pre-trial bail on unrelated charges; and possessed an unlicensed firearm in his
home. Defendant also contends the prosecutor elicited improper testimony from
Detective Raynor about being asked to track down witnesses to confirm his
presence in Roebling, and the unsolicited comment by Rivera that he and
Dewyer discussed bail money deprived him of a fair trial.
Defendant did not raise any of these objections at trial. Accordingly,
under the plain error standard, we will disregard the alleged errors unless they
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29
are "clearly capable of producing an unjust result." R. 2:10-2. "Under that
standard, defendant has the burden of proving that the error[s] [were] clear and
obvious and that [they] affected [his] substantial rights." State v. Muhammad,
359 N.J. Super. 361, 372 (App. Div. 1998) (quoting State v. Morton, 155 N.J.
383, 421 (1998)). The errors claimed must be so egregious that they "raise a
reasonable doubt as to whether it led the jury to a result it would otherwise not
have reached." State v. Weston, 222 N.J. 277, 294 (2015) (quoting Pressler &
Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 2:10-2).
At trial, the prosecutor played the first part of defendant's statement for
the jury, which included a discussion between defendant and Detective Raynor.
The detective told defendant that he knew defendant had been with Dewyer all
day on January 3, 2016. After being asked to elaborate on his story, Detective
Raynor offered again to "run down" defendant's alibi. However, defendant
declined to do so and asked for his attorney. The limited exchange shown to the
jury could not have produced an unjust result.
Rivera's reference to "bail money" was remediated by the prosecutor by
pointing out that the argument she witnessed was solely about "money." In his
summation, the prosecutor only referenced Dewyer withdrew $1050 out of his
bank account for defendant, and no mention was made it was for bail money.
A-2755-17T1
30
We also reject defendant's argument that the trial court improperly
allowed Cristinzio to testify that defendant mentioned possessing a gun in his
motel room that was not his and failed to give a curative instruction, also raised
for the first time on appeal. At some point, "[defendant] asked [Dewyer] to go
get the gun from someone else's room, [r]oom [eleven], and [Dewyer] said he
didn't want to touch the gun." At times, defendant slept in room eleven but
claimed it was "someone else's room," and not his residence at the Riverfront
Motel. Therefore, no instruction on the propriety of keeping an unlicensed
firearm in one's home was warranted, and there was no plain error.
We have considered defendant's other arguments in his pro se
supplemental brief and conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
In sum, we conclude that the appropriate course of action is to remand for
a Rule 104(a) hearing to determine the reliability of Sandra and Jeffrey Carver's
statements and testimony as a condition for admissibility at the re-trial. We
caution the parties that by mandating a Rule 104(a) hearing, we make no opinion
or finding as to the admissibility of Sandra and Jeffrey Carver's proffered
statements and testimony. Given our ruling for the trial court to conduct a Rule
104(a) hearing, we need not address defendant's argument on resentencing.
A-2755-17T1
31
Instead, defendant's conviction and sentence are vacated, and the matter is
remanded for further proceedings.
Reversed and vacated. We do not retain jurisdiction.
A-2755-17T1
32
ROSE, J.A.D., concurring in part and dissenting in part.
I join in the majority opinion insofar as it expresses our decision to reject
the arguments defendant raises on appeal. But I cannot agree with my
colleagues that cumulative errors – some of which were not raised before the
trial court or this court – warrant reversal of the jury's verdict and a preliminary
hearing at a retrial. Accordingly, I respectfully dissent.
I.
I begin by addressing the majority's conclusion that cumulative errors
denied defendant a fair trial, noting the nature and extent of those "errors" are
not fully analyzed. Instead, the majority seemingly suggests four of the
prosecutor's closing remarks exceeded the bounds of fair comment. I discern
the majority concludes those comments – taken together and combined with the
Carvers' "impermissibly suggestive and prejudicial" testimony – denied
defendant his right to a fair trial. Although the prosecutor's comments are set
forth in the majority's factual recitation, they are not analyzed in view of the
context of the trial as a whole and the governing law. I therefore pause to recite
well-established principles that govern the relevant analysis before turning to
the evidence that supports the prosecutor's remarks.
In reviewing a claim of prosecutorial misconduct, an appellate court
considers whether: defense counsel raised "timely and proper objections"; "the
offending remarks were withdrawn promptly"; "the trial court struck the remarks
and provided appropriate instructions to the jury"; and "the offending remarks
were prompted by comments in the summation of defense counsel." State v.
Smith, 212 N.J. 365, 403-04 (2012) (internal citations and quotation marks
omitted). "Generally, if no objection was made to the improper remarks, the
remarks will not be deemed prejudicial." State v. R.B., 183 N.J. 308, 333 (2005)
(citation omitted). "Failure to make a timely objection indicates that defense
counsel did not believe the remarks were prejudicial at the time they were
made," and "deprives the court of the opportunity to take curative action." State
v. Timmendequas, 161 N.J. 515, 576 (1999).
Moreover, New Jersey courts have long recognized prosecutors "are
afforded considerable leeway in making opening statements and summations."
State v. Williams, 113 N.J. 393, 447 (1988). They may even do so "graphically
and forcefully." State v. Pratt, 226 N.J. Super. 307, 323 (App. Div. 1988).
Of course, "the primary duty of a prosecutor is not to obtain convictions
but to see that justice is done." Smith, 212 N.J. at 402-03. A prosecutor's "duty
is to prove the State's case based on the evidence and not to play on the passions
of the jury or trigger emotional flashpoints, deflecting attention from the hard
facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88,
A-2755-17T1
2
96 (2006). "A prosecutor must 'conscientiously and ethically undertak[e] the
difficult task of maintaining the precarious balance between promoting justice
and achieving a conviction,' ensuring that at all times his or her 'remarks and
actions [are] consistent with his or her duty to ensure that justice is achieved.'"
State v. Jackson, 211 N.J. 394, 408 (2012) (alterations in original) (quoting
Williams, 113 N.J. at 447-48).
Even if the prosecutor exceeds the bounds of proper conduct, however,
that finding does not end an appellate court's inquiry. "[I]n order to justify
reversal, the misconduct must have been 'so egregious that it deprived the
defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting
State v. Frost, 158 N.J. 76, 83 (1999)). "To justify reversal, the prosecutor's
conduct must have been clearly and unmistakably improper, and must have
substantially prejudiced defendant's fundamental right to have a jury fairly
evaluate the merits of his defense." Timmendequas, 161 N.J. at 575 (citation
omitted); see also State v. McNeil-Thomas, 238 N.J. 256, 276 (2019).
Against that legal backdrop, I turn to the comments at issue, recognizing
defendant did not object to any of the prosecutor's remarks cited by the majority
before the trial court. Two of those comments neither were raised before us in
defense counsel's merits brief nor defendant's supplemental pro se submission.
A-2755-17T1
3
Initially, I consider defendant's arguments to give context to the
prosecutor's closing remarks. Defendant's strategy focused on his friendship
with Dewyer, arguing he had no motive to kill his friend. Indeed, defense
counsel characterized their relationship as "best friends." In response, the
prosecutor cited the video evidence in the record, defendant's statements, and
withdrawals from Dewyer's bank account prior to his murder to argue defendant
"used" Dewyer "for his car" and "money." Notably, defendant told police, he
often drove Dewyer's car because the victim "had bad legs."
After making the comments the majority construes as "malign[ing]
defendant's character," the prosecutor continued:
I think [defendant] is in the[ ] [casino] for about
an hour gambling. Jim Dewyer comes in and finally
sits down at the slot machines next to him. He's not
playing the slot machines. You can watch the entire
video, if you want, of the casino. I played different
portions of it but I submit to you, there's not one minute
where he's putting any quarters or any money in that
slot machine. He's not gambling. He's sitting there.
He's looking at the paper. At one point it looks like
[Dewyer]'s falling asleep on that chair. [Dewyer]'s
waiting for his good friend . . . who is gambling at the
craps table.
When [defendant] is done, he comes, taps
[Dewyer] on the shoulder, "let's go." And then
[defendant] walks so far ahead of him. This man is
having trouble walking, give him your arm, go get a
wheelchair for him. Do something. Walk with your
A-2755-17T1
4
good friend. [Defendant] doesn't do that. He walks
way ahead of him. He'll come back every once in a
while and then he's gone again. Is that a good friend? I
submit to you it's not.
The prosecutor's comments followed defense counsel's skillful attempt to
argue defendant had no motive to kill his friend. Taken in context, the remarks
that offend the majority were fair and based on the video footage that was
admitted in evidence without objection. Further, defendant raised no objection
to the prosecutor's comment before the trial court – or us. Accordingly, I discern
no error, let alone plain error, in those remarks.
The majority next cites the prosecutor's argument that defendant changed
his clothes to avoid detection. In doing so, the majority concludes the record
does not support that conclusion. According to video footage from t he
Riverfront Hotel, however, when defendant arrived at 3:20 p.m. he was still
wearing a dark colored hoodie, dark pants, and white sneakers. But nine minutes
later, defendant appears to be wearing "plaid pajama pants" as described by
High-Tech Crimes Unit Detective David Kohler, when the video is played for
the jury during his testimony. Again, defendant did not challenge the
prosecutor's remark before the trial court or on appeal. I discern no error, let
alone plain error, in that comment, which is supported by the trial evidence.
A-2755-17T1
5
The majority also references the prosecutor's remark that the lead
detective "practically begged" defendant for his alibi witness during his
custodial questioning. In doing so, the majority notes defendant did not "hav[e]
the benefit of counsel." Implicit in the majority's comment is its conclusion that
the prosecutor's comment was improper. Yet, the majority found no error in the
court's denial of defendant's motion to suppress his statements. Because I agree
that defendant's statements were properly admitted at trial, I discern no error in
the prosecutor's comment.
The final closing remark cited by the majority follows its observation that
neither Sandra nor Jeffrey Carver identified defendant in or out of court. The
prosecutor commented: "The person that the Carvers saw that day was the
defendant." Again, the majority does not analyze whether or how that remark
was improper, and if so, whether it rose to plain error. Again, the comment is
taken out of context.
A summary of the evidence bears repeating. During the multi-day jury
trial, the State presented the testimony of seventeen witnesses and introduced in
evidence numerous exhibits, including surveillance video; defendant's
statements to police; and expert testimony concerning defendant's cellphone
location data. No weapon was recovered, but forensic evidence revealed
A-2755-17T1
6
Dewyer was shot in his left rib cage, at close range, while seated in the front
passenger's seat of his car. No one witnessed the shooting, but surveillance
video footage captured defendant and Dewyer together during most of the day.
Much of the video footage depicted defendant driving Dewyer's silver car, with
Dewyer in the front passenger's seat. Dewyer was last seen alive in that manner
about three hours before police discovered his lifeless body – in the front
passenger's seat of his car.
Although neither Jeffrey nor Sandra Carver made an in-court or out-of-
court identification, they observed a man fitting defendant's general description
walking from the remote area where they observed a silver car parked askew.
He was carrying a backpack with an orange, yellow or red color on top.
Defendant did not testify, but his statements concerning his whereabouts at the
time of the murder contradicted his cellphone activity. Notably, the majority
upheld the admission of defendant's custodial statements to police and the
experts' opinion concerning cellphone location.
Typical of a circumstantial evidence case where, as here, identification is
at issue, the prosecutor told the jury: "You have to look at the evidence in its
totality. Much like this case – pieces of a puzzle – when you fit [them] together
you can identify the defendant as the murderer." See State v. Michaels, 264 N.J.
A-2755-17T1
7
Super. 579, 641 (App. Div. 1993) (finding the prosecutor could use a "puzzle
analogy" to argue that the defendant was guilty).
The prosecutor's summation spans thirty-six transcript pages; the remark
at issue was made toward the end of the prosecutor's summation, after he argued:
defendant was not Dewyer's friend; video from the casino and hotel placed
Dewyer with defendant most of the day, with defendant driving Dewyer's silver
car; defendant's statement claiming Dewyer dropped him off in Roebling, where
defendant met with someone he refused to identify; and defendant's cellphone
"never hits off of [the] Roebling [sector] between 1:34 and 3:30," but rather it
hits off two sectors that overlap "and the crime scene is right on the border of
that overlap." Among other things, the prosecutor recounted Cristinzio's
testimony describing defendant's reaction when told Dewyer was dead: "And
the interesting part about that is . . . the reaction that she told you [defendant]
had. Not, 'oh, my God, my good friend Jimmy Dean is dead.' That's not the
reaction he had." Defendant instead told Cristinzio, "Well, I was on a date."
The prosecutor also recounted Rivera's testimony "that in the weeks leading up
to [the] murder," Rivera overhead Dewyer and defendant arguing about money
defendant owed the victim.
A-2755-17T1
8
When discussing the Carvers' testimony, the prosecutor argued, in
pertinent part:
Now, on January 3 the Carvers are driving down
Kinkora Road at about three o'clock, I believe the
testimony was. And when they're driving down
Kinkora Road they see the victim's vehicle parked in
that cut-out, okay. The car's up into the woods a little
bit. They see it. It's still daylight when they observe it.
They drive past. And after they drive past they observe
someone walking down the road, a person who
appeared to be out of place to them. He's walking down
the left-hand side of the road. And both of the Carvers
described him as a large man. He was over six feet tall
and over 200 pounds. They can't identify him. Much
like if you're driving down the road in your
neighborhood, you see somebody that you don't
recognize, they just don't fit into that neighborhood for
some reason, they're not a resident. These people grew
up there. They've lived there for twenty-some-odd
years. They knew the people walking back and forth.
They thought it was the person that broke down
possibly back in that car. But they knew he wasn't a
regular in the neighborhood. They see him walking.
And just like you, if you see somebody in your
neighborhood and then you're asked four days and ten
days later to describe what you saw, you're probably not
going to know . . . he had a brown suit on, he had this
on, he had that on. What you're going to remember are
the things that stood out to you and the things that make
that person stand out and be out of place.
So, they remembered he was a large man, over
200 pounds, over six feet tall. They remembered he
was not black but light skinned, maybe mixed race, or,
you know, brown skin. They remember that as they
A-2755-17T1
9
approached, he kept looking back and glancing over his
shoulder at them. And they remember a backpack. And
their description of the backpack was off. Sandra says
it was, you know, yellow and orange possibly. But
[Jeffrey] says, I believe it was black and I think it had
some red or some silver in it. They can't identify it.
They didn't witness the murder, by the way, so the fact
that there's no identification in court, they tell you right
up front, they can't identify him. They can't I.D. him.
And in retrospect, that doesn't matter anyway because
they didn't witness the murder, they just witnessed the
person walking down the street. So, they remember the
details, as I stated, that stand out to them.
And then you look at the fingerprint card that
. . . [is] in evidence. Look at the height and weight
. . . . Six-foot [sic] three, 265 pounds. Certainly, a large
man. He's brown skinned. He's over six-foot [sic] and
he's over 200 pounds. That general description that the
Carvers gave that day matches the defendant. They also
remember that as he kept looking back at them and
glancing back over his shoulder as he walked, he's
carrying a backpack.
Then when you look at the video of the motel –
and [you] see him at about three, a little after three, a
little before three [o'clock]. 3:28 p.m. at the motel,
what do you see? You see a large brown-skinned male,
carrying a backpack, coming from the direction of
Kinkora Road. It's not a coincidence. The person that
the Carvers saw that day was the defendant. They
couldn't identify him and say yes, that's him, I see his
face, it's definitely him but the general description
matches. It's too much of a coincidence to not be him.
[(Emphasis added).]
A-2755-17T1
10
Earlier, when discussing the video footage depicting defendant leaving the
Riverfront Hotel at approximately 1:30 p.m., the prosecutor said: "you see
[defendant] grab a backpack. He grabs that backpack, it looks like it's black
with red and silver on it, kind of like [Jeffrey] stated, and he puts that in the car."
Surely, the Carvers' observations of a man fitting defendant's general
description, who was seen walking from the direction of Dewyer's car, with a
backpack that resembles the backpack captured on the Riverfront Hotel's video
footage at 1:30, when defendant left the Riverfront Hotel with Dewyers,
provided a sufficient basis for the prosecutor's comment. I therefore conclude
the remark was a reasonable inference suggested by all the evidence adduced at
trial.
In sum, all four closing remarks that the majority apparently finds
objectionable must be contextualized amid the circumstantial evidence that
underscored defendant's guilt in response to counsel's arguments. And, given
the lack of an objection, no unjust result occurred from those remarks – in part
or in combination.
II.
Although the majority reverses defendant's conviction based on
cumulative errors – including the prosecutor's remarks that I find acceptable for
A-2755-17T1
11
the reasons stated – it appears its main bone of contention is the court's
admission of the Carvers' testimony, without issuing a proper jury instruction.
As my colleagues accurately observe, defendant neither challenged the
admissibility of the Carvers' testimony nor sought an identification instruction
from the trial court.1 Before us, defendant still does not claim the Carvers'
testimony was admitted erroneously.
A.
In reaching its decision that an N.J.R.E. 104 hearing is necessary on
retrial, the majority nonetheless generally acknowledges a pretrial Wade hearing
was unnecessary because there was no "show-up identification" in this case. 2 I
agree with that conclusion.
Citing its "concern[s] that the Carvers' testimony was impermissibly
suggestive and prejudicial to defendant, and the jury may have erroneously
drawn a conclusion that he was the perpetrator," the majority nonetheless would
have the trial court conduct a preliminary hearing to determine the admissibility
1
Defendant moved for a mistrial, acquittal, and new trial on other grounds.
2
More accurately, defendant was not entitled to a Wade-Henderson hearing
inasmuch as there was no pretrial identification whatsoever of defendant by the
Carvers. Henderson, 208 N.J. at 218-19 (holding a pretrial hearing is required
when police conduct any out-of-court identification procedure).
A-2755-17T1
12
of the Carvers' testimony at a retrial. In that regard, the majority concludes the
trial court must determine whether the Carvers' testimony would "cause undue
prejudice in the minds of the jurors and should be barred." In doing so, the
majority conflates the rules regarding admission of relevant evidence – when
that evidence was not challenged here – with our Supreme Court's jury
instructions regarding pretrial identification procedures.
In my view, the majority's outcome departs from well-established
evidentiary principles. It is beyond peradventure that our review of evidentiary
decisions is discretionary. See State v. Cole, 229 N.J. 430, 449 (2017). We
must uphold such decisions when they are supported by sufficient credible
evidence in the record. See McNeil-Thomas, 238 N.J. at 272; State v. S.S., 229
N.J. 360, 374 (2017). Of course, if the trial court applies the wrong legal test
when analyzing admissibility issues, we apply de novo review. State v. Hyman,
451 N.J. Super. 429, 441 (App. Div. 2017); see also State v. Nantambu, 221 N.J.
390, 402-03 (2015) (recognizing "we accord no deference to the trial court's
legal conclusions."). Here, apparently citing Henderson,3 the majority
3
In Henderson, the Court set forth a four-step framework for the admissibility
of pretrial identification procedures. 208 N.J. at 288-89. The fourth step
provides in relevant part: "[I]f after weighing the evidence presented a court
finds from the totality of the circumstances that defendant has demonstrated a
A-2755-17T1
13
seemingly concludes the trial court should have determined from "the totality of
the circumstances" whether the Carvers' testimony should be suppressed or
admitted at trial.
However, even if Jeffrey or Sandra Carver had made a pretrial
identification of defendant, Henderson does not require a preliminary hearing
for the court to determine whether their proposed testimony is impermissibly
suggestive; it requires the court to determine whether an identification procedure
was impermissibly suggestive. 208 N.J. at 218-19. Because there was no
identification procedure here, there was no basis for the trial court to conduct a
Wade-Henderson or other preliminary hearing to determine the admissibility of
the Carvers' testimony in the present trial.
Pursuant to N.J.R.E. 403, evidence is presumed admitted unless the trial
court finds its probative value is substantially outweighed by its prejudicial
value, with the burden placed on the party seeking to exclude that evidence.
Santamaria, 236 N.J. at 406; Cole, 229 N.J. at 452-53. My review of the record
reveals the testimony of the Carvers was relevant and probative on the issue of
identity: Sandra and Jeffrey testified about the general description of defendant
very substantial likelihood of irreparable misidentification, the court should
suppress the identification evidence. If the evidence is admitted, the court should
provide appropriate, tailored jury instructions . . . ." Id. at 289.
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– his weight; height; skin tone – and that they saw him walking from an oddly-
parked silver car, carrying a backpack with red, orange or yellow on top, shortly
before Dewyer's lifeless body was discovered in his silver car. That testimony
tended to prove a fact in dispute, as corroborated by cell site data, and disprove
defendant's uncorroborated claim he was in Roebling around the time of the
murder. I therefore respectfully disagree with the majority that an N.J.R.E. 104
hearing is necessary to determine the admissibility of the Carvers' testimony.
B.
Turning to defendant's belated claims of error in the jury charge, the
majority cites, without analyzing, the model jury charge, "Identification: No In -
Or-Out-Of-Court Identification" (lack-of-identification charge). Notably,
defendant now argues the trial court failed to issue the lack-of-identification
charge and failed to instruct the jury about estimator variables pursuant to
Henderson, 208 N.J. at 261. Because the majority does not analyze the lack-of-
identification charge, I do so to better address defendant's argument.
Without citation to caselaw, the footnote to the lack-of-identification
charge suggests the "instruction should be given when defendant's defense is
that he[] did not commit the crime and the State is seeking to prove his[] guilt
without adducing any direct identification evidence, e.g., is relying on
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circumstantial evidence to tie the defendant to the crime." This instruction
advises jurors in circumstantial evidence cases, such as this one, that the identity
of a criminal offender is a necessary element that the prosecution must prove
beyond a reasonable doubt. The absence of positive identifications by the
Carvers does not eliminate the utility of this instruction; instead that absence
underscores the instruction's utility. I am therefore persuaded that the trial court
– although it was not requested by defendant to do so – should have issued the
lack-of-identification charge.
That said, I disagree with the majority's implicit suggestion that th e
omission of that instruction constitutes plain error that compels reversal. R.
2:10-2. As my colleagues observe, the jury was more generally advised of the
State's burden to prove all elements of the charged offenses beyond a reasonable
doubt. And the trial court did more than explain the difference between
circumstantial and direct evidence. The court also instructed the jury: "A
conviction may be based on circumstantial evidence alone, or by a combination
of circumstantial evidence and direct evidence, provided, of course, here you
are convinced of the defendant's guilt beyond a reasonable doubt." To be sure,
while it would have been preferable for the court to have issued the lack -of-
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identification charge, I am unable to conclude under our plain error standard that
the failure to do so here constitutes reversible error.
****
In sum, I discern no error – separate or cumulative – that requires reversal
of defendant's convictions. Accordingly, I concur with the majority's decision
to the extent it rejects defendant's arguments raised on appeal. 4 I respectfully
dissent for all other reasons stated.
4
Notwithstanding my concurrence, I disagree with the majority's apparent
criticism that "defendant did not present a rebuttal witness on historical cell site
data information." On appeal, defendant asserts the trial judge failed to rule on
his request for a Frye hearing. Although that contention is unsupported in the
record, it is axiomatic that the burden of proving reliability of scientific evidence
is on the party seeking to establish its reliability. See Harvey, 151 N.J. at 171;
see also Cassidy, 235 N.J. at 492. As the burden the proof always rested with
the State, see Model Jury Charges (Criminal),"Criminal Final Charge" (rev. May
12, 2014), defendant was under no obligation to present any evidence to rebut
the reliability of Hauger's testimony.
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