STATE OF NEW JERSEY VS. KEVAUGHN WRIGHT (16-08-0710, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0697-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVAUGHN WRIGHT,
a/k/a KEVAUGHN BRADY
WRIGHT,
Defendant-Appellant.
_________________________
Submitted June 3, 2021 – Decided August 10, 2021
Before Judges Ostrer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 16-08-0710.
Joseph E. Krakora, Public Defender, attorney for
appellant (Scott M. Welfel, Assistant Deputy Public
Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
On March 17, 2016, at around 7:00 p.m., Elijah McQueen was shot in the
neck during an altercation with defendant, Kevaughn Wright. McQueen
survived. Approximately five months later, a Passaic County Grand Jury
indicted Wright, charging him with: (1) first-degree attempted murder, N.J.S.A.
2C:5-1(a)(1) and 2C:11-3(a)(1) (count one); (2) second-degree possession of a
firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count two); and (3)
second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)
(count three). Following a jury trial, defendant was found not guilty on counts
one and two, but guilty on count three. The trial court denied defendant's motion
for a judgment of acquittal or a new trial, and on August 30, 2019, sentenced
him to a five-year prison term, subject to forty-two months of parole
ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).
Defendant urges us to reverse his conviction, arguing the trial court erred
in limiting his cross-examination of two witnesses, improperly barred him from
introducing his victim's parole records, and failed to properly instruct the jury
regarding the element of possession. We disagree and affirm.
At defendant's trial, the State presented the testimony of Elijah McQueen's
aunt, Robin McQueen, and his cousin, Nijera McQueen, as well as other
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witnesses. Defendant also testified but Elijah1 did not appear or testify at the
trial.
Prior to Nijera taking the stand, defense counsel advised the trial court
that Nijera was indicted and had charges pending against her for third-degree
neglect of a disabled person, N.J.S.A. 2C:24-8 (count one); fourth-degree
hindering apprehension, N.J.S.A. 2C:29-3(b)(2) (count two); and fourth-degree
hindering by providing false information to a law enforcement officer, N.J.S.A.
2C:29-3(b)(4) (count three). Defense counsel sought permission to cross-
examine Nijera regarding her charged offenses. The judge granted counsel's
request regarding counts one and two, but denied his request regarding count
three, explaining:
I am going to exclude any reference to the hindering of
apprehension by providing false information to law
enforcement as an inadmissible specific instance of
conduct under Rule 608 as well as, and let's not forget
we, also, have Rules 404 and 405 as well . . . . Rule[s]
405 and 608 preclude the use of specific instances of
conduct to attack the credibility of a witness. Rule 608
indicates that a tra[it] of character cannot be proved by
specific instances of conduct unless, as we know, it had
to do with the prior act. The prior act was a false
accusation against the person of a crime similar to the
1
Because Elijah, Robin and Nijera McQueen share the same surname, we
hereafter refer to them by their first names for the reader's convenience. We
intend no disrespect in this regard.
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crime [with which the defendant is charged]. I think we
can all agree we don't fall into that exception.
Relevant evidence may be excluded on the ground that
its probative value [is] substantially outweighed by the
risk of undue prejudice, that's Rule 403.
I think here . . . what we stand for in our criminal justice
system is that someone is presumed innocent until
proven guilty. I have to weigh that, also, with respect
to these charges against this potential witness. These
are just charges, as we’ve told our jurors. Charges are
a way to bring the matter before the court and the jury
for the ultimate determination of whether a person is
guilty or not guilty.
So, to bring up [a] false accusation charge in an
indictment, to me under [Rule] 403, would be an unfair
prejudice to this witness as well . . . . She may decide
to take the Fifth and not even want to address these
charges. But the fact that this witness, like the
defendant, is innocent until proven guilty, I can't allow
this particular specific instance of conduct in that
relates to her potential untruthfulness when it's a trait
o[f] character that's otherwise inadmissible under
[Rule] 608.
And, so, for that reason, I'm . . . going to allow, if
[defense counsel] wants, counts [one and two] of the
indictment because, again, it does not go into the
truthfulness, a dishonesty claim, as it does in count
[three].
....
But I'm not going to allow you to ask this witness well,
you know, you gave false information at one time to
law enforcement, aren't you giving false information
today?
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The judge subsequently clarified that defense counsel could elicit the
specific charges Nijera faced on counts one and two, "including degree and
potential exposure."
When Nijera took the stand, she testified she dated defendant for several
months before the shooting, and on the night before the shooting, she "found
[defendant] in bed with someone else." She stated she left her home on March
17 to speak with defendant. According to her testimony, as she and defendant
were walking and talking outside, their discussion became "heated." During
their argument, Nijera saw the person she "caught [defendant] in bed with," so
Nijera and the other woman "end[ed] up fighting" "right by [Elijah's] house."
Nijera affirmed that Elijah intervened and he and defendant engaged in a
fistfight with one another. Once the fight ended between the two men, Nijera
and Elijah went to Elijah's car so he could drive her home. Nijera testified that
when she and Elijah arrived at her home, a crowd of twenty to thirty people were
there, including defendant and his family members. She stepped out of Elijah's
car and was walking toward her home when she saw defendant "and his family
were like all in front of the car, so Elijah stopped the car and got out . . . ."
According to Nijera, "Elijah went to put his hands up to fight [defendant] and
[defendant] pulled out a gun and shot [Elijah] in the throat." Nijera also testified
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Elijah did not have a gun and that after Elijah was shot, defendant ran from the
scene with the gun. Nijera stated she was "[a] hundred percent" sure that
defendant was the person who shot Elijah.
During her cross-examination, Nijera acknowledged that in 2016, Elijah
"just returned home" from a period of incarceration. Defense counsel asked if
Elijah "ever had to return after his period of incarceration," presumably referring
to a return to prison, to which Nijera answered, "That I wouldn't know, honestly,
no."
Nijera also admitted during cross-examination that she was facing charges
for third-degree neglect of a disabled person and fourth-degree hindering
apprehension, that her "exposure" on the third-degree charge was "significant,"
and her charges were lodged against her by "[t]he Prosecutor's Office, though
not this specific Prosecutor," for whom she was testifying. On redirect, Nijera
confirmed she provided a statement to law enforcement about the shooting on
the night it happened, and at that time, no charges were lodged against her. She
also testified she was not promised anything by law enforcement in exchange
for providing her 2016 statement.
Robin, Nijera's mother, testified that on the evening of the incident, she
was looking for Nijera while driving in her car, and when she stopped looking,
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she headed home. As she neared her residence, she saw Elijah's car "was in the
middle of the block" and "he wasn't able to drive because [defendant's] family
. . . was blocking him from being able to go down the street." She testified she
saw defendant interact with Elijah as the two men "started to square up," with
their hands raised as if in a "boxer stance," and "[t]he next thing, [defendant]
reached into his shorts' pants and pulled out a gun, pow." Robin testified that
Nijera was standing behind Elijah when Elijah was shot, "Elijah had no
weapon," and defendant "took off running" from the scene. Like Nijera, Robin
stated she was "a hundred percent" sure of what she saw during the incident.
On cross-examination, Robin acknowledged Elijah previously was
incarcerated, but she did not remember when that was or why he was
incarcerated. Robin also testified Elijah possibly was incarcerated for more than
two years. Defense counsel asked her if Elijah "ever [had] to go back to jail,"
to which Robin responded, "No, not that I know of."
Several days after Nijera, Robin, and other witnesses testified for the
State, the trial resumed. At that time, defense counsel sought to introduce
Elijah's parole records and his judgment of conviction (JOC) from 2010,2 over
2
Elijah had previously been convicted of first-degree robbery, N.J.S.A. 2C:15-
1 and second-degree possession of a handgun for an unlawful purpose, N.J.S.A.
2C:39-4(a).
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the State's objection. Defense counsel confirmed his purpose was to establish
that Nijera and Robin were biased in favor of Elijah and would have lied on the
stand to protect Elijah from a parole violation by testifying he did not have a
gun or shoot it during the incident. We note by this point in the trial, defense
counsel already had raised the possibility witnesses had fabricated what
occurred during the shooting incident because of Elijah's parole status. Indeed,
counsel advised jurors in his opening statement:
[Elijah] brought a handgun that day. He was on parole
. . . on the day of the fistfight with [defendant]. His
family knew that, and his family knew that if he got
rearrested with a gun charge, he'd go right back to
prison, so they made this up. They said that [defendant]
brought a gun to the fistfight, but he never did.
In response to defendant's application to introduce Elijah's JOC and parole
records, the judge noted defense counsel "didn't ask [the victim's family] about
parole," nor did he ask the detective who testified for the State about Elijah's
parole status. She reminded defense counsel she had given him permission to
ask "questions about parole," yet in his questioning of Elijah's family members,
he "never used the word, [']parole.[']" She added that he "could have asked [the
detective testifying for the State] questions with respect to if he knew [Elijah]
was on parole." The judge inquired of defense counsel, "don't you think the ship
sailed a bit on that in that the time to attack bias of a testifying witness is when
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they're testifying?" Further, the judge stated, "prior convictions for violent
crimes would be admissible to prove" a person's "violent nature" and "it could
have been established through [the detective], it wasn't." Thus, she was "not
sure if the ship has sailed as to how you get it in at this point." The judge
subsequently stated:
the defense seeks to introduce the prior conviction of
the victim in this case, Elijah McQueen for two
purposes. One, to establish the bias of Nijera McQueen
and Robin McQueen. And second is character evidence
of the victim, Elijah McQueen . . . .
Prior to the cross-examination of Nijera and Robin
McQueen, I'll now refer to them as McQueens, the court
ruled that it would be permissible for the defense to
inquire into whether or not either of the McQueens had
knowledge that the victim was on parole. And the
defense theory was that the McQueens' respective
testimonies identifying the defendant was not only the
possessor of the weapon, but the shooter, may not be
credible as the McQueens' motive was to cover up
Elijah McQueen, the fact that he was out on . . . parole.
And as such, any hint of him possessing a gun or
shooting a gun would have subjected him to a parole
violation.
Despite the court's ruling, defense did not ask either [of
the] McQueens if they were aware that Elijah was on
parole at the time of the incident and instead, the
defense opted to . . . ask either of them if they knew if
Mr. McQueen ever returned to jail after his period of
incarceration. Both of the McQueens responded that
they were unsure of the answer to the question and there
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was no follow up by the defense counsel. And as we
know we can impeach a testifying witness for bias.
And so, in this case, . . . I think the ship had sailed with
respect to impeaching the testimony of both the
McQueens through the use of Elijah McQueen's prior
conviction since those questions could have been asked
at the time of the witnesses testifying.
Accordingly, the judge denied defendant's application to introduce
Elijah's parole records, finding "[t]he issue of parole was not raised in cross-
examination as noted. However, the [JOC] indicates a period of parole
supervision and either party can argue it as it may with respect to the effect of
. . . the victim's status on parole as to any issue in this case." The judge also
stated evidence of Elijah's prior convictions could be utilized by the defense
"[i]n the event that there is evidence introduced that renders the violent
propensity of the victim relevant to this case." The judge further stated if the
JOC was offered into evidence, she would likely "sanitize" the document to
exclude original charges, fines and penalties paid, and "any aggravating and
mitigating factors noted" but retain the "charges for which the defendant pled
guilty . . . and the sentences imposed on such."
Defendant testified after the judge made these evidentiary rulings.
Defendant stated he knew Elijah before he met Nijera and the two men were
"close friends." He testified that on the day of the incident, Nijera and another
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woman who was a friend of his fought with one another. He attested he had
"nothing to do with that fight at all." Additionally, he stated he and Elijah "said
a couple words [to each other] but . . . never physically fought" and Nijera and
Elijah drove away. However, defendant admitted he and Elijah physically
fought each other when they met up shortly thereafter and he "tackled" Elijah.
Defendant testified that while the two were "wrestling" on the ground, he heard
one gunshot, thought he "was getting shot at," so he "got up and ran" to his
house. Also, he testified he never shot Elijah, never possessed a gun and when
asked if he ever tried to "kill" Elijah, he responded, "I had no reason to."
After defendant's testimony concluded, the defense rested. When the trial
resumed the following day, counsel and the court discussed and agreed on the
jury instructions, and counsel provided their closing remarks. The judge then
charged the jury and included in her instruction that jurors could view Elijah's
JOC in redacted form and "consider all, part or none of it and the weight it is to
be given." The judge also instructed the jurors that the State needed to prove
"each element of a charge beyond a reasonable doubt." Regarding defendant's
charge of possession of a firearm with the purpose to use it unlawfully, the judge
defined the element of possession to mean "a conscious knowing possession,"
adding, "[a] person is in actual possession of an item when he first knows what
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it is. That is, he has knowledge of its character." Turning to count three of the
indictment, the judge instructed that to be convicted of the unlawful possession
of a handgun, the State had to prove, in part, the element that "defendant
knowingly possessed the handgun." She explained:
To possess an item under the law one must have a
knowing intentional control of an item accompanied by
knowledge of its character. So, a person who possesses
an item such as a handgun must know or be aware that
he possesses it, and he must . . . know what it is that he
possesses or controls, that is a handgun. The State must
prove beyond a reasonable doubt that a possessor acted
knowingly in possessing the item.
....
A person may possess a handgun even though it was not
physically on his person at the time of his arrest if he
had, in fact, at some point prior to his arrest had control
over it. Possession means conscious knowing
possession. A person is in actual possession of an item
when he first knows what it is. That is, he has
knowledge of its character.
Defense counsel voiced no objections to these instructions when they were
given. Thus, the jurors began their deliberations and two days later, they found
defendant guilty of unlawful possession of a weapon and not guilty of the
remaining charges.
On appeal, defendant raises the following arguments:
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POINT I
THE TRIAL COURT VIOLATED DEFENDANT'S
CONSTITUTIONAL RIGHT TO CONFRONTATION
BY PREVENTING DEFENDANT FROM FULLY
EXPLORING THE BIAS OF THE STATE'S
WITNESSES NIJERA AND ROBIN MCQUEEN BY
PROHIBITING EXAMINATION OF NIJERA ON
THE NATURE OF ALL THREE CHARGES
PENDING AGAINST HER AND PROHIBITING
INTRODUCTION OF ELIJAH MCQUEEN'S
PAROLE RECORDS.
A. The Court Erred In Precluding Defendant From
Examining Nijera McQueen Regarding The
Nature Of Count [Three] Of The Indictment
Pending Against Her And In Failing To Instruct
The Jury On The Relevant Permissible Inference
To Be Drawn From Her Pending Charges.
(Partially Raised Below).
B. The Court Erred In Excluding Elijah McQueen's
Parole Records Showing He Was On Parole At
The Time Of The Offense And Had Previously
Violated Parole.
POINT II
DEFENDANT'S CONVICTION FOR POSSESSION
OF A HANDGUN WITHOUT A PERMIT MUST BE
REVERSED BECAUSE THE COURT FAILED TO
SUFFICIENTLY DEFINE THE ELEMENT OF
POSSESSION FOR THE JURY. (Not Raised Below).
We find these arguments are unavailing.
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Regarding defendant's Point I contentions, we are mindful that we "review
evidentiary rulings under an abuse of discretion standard." State v. Jackson, 243
N.J. 52, 64 (2020). "[A] trial court is afforded 'considerable latitude regarding
the admission of evidence,' and [should] be reversed only if the court abused its
discretion." Ibid. (quoting State v. Nelson, 173 N.J. 417, 470 (2002)). "[W]e
accord no deference to the trial court's legal conclusions." Ibid. (quoting State
v. Nantambu, 221 N.J. 390, 402 (2015)).
"If the evidence is deemed relevant, it is admissible, unless its probative
value is substantially outweighed by the risk of [] undue prejudice or some other
bar to its admission is properly interposed." Ibid. (internal quotation marks
omitted and alteration in original). "The trial court 'has broad discretion to
exclude evidence as unduly prejudicial pursuant to N.J.R.E. 403.'" Ibid.(quoting Nantambu, 221 N.J. at 402).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee defendants the right to
confront witnesses. U.S. Const. amends. VI and XIV; N.J. Const. art. 1, ¶ 10.
"Our system permits exploration, through cross-examination, of a witness's
motivation in testifying." Jackson, 243 N.J. at 65. "The Confrontation Clause
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permits a defendant to explore, in cross-examination, a prosecution witness's
alleged bias." State v. Bass, 224 N.J. 285, 301 (2016).
A trial court, however, may "impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness'[s] safety, or interrogation that is
repetitive or only marginally relevant." Del. v. Van Arsdall, 475 U.S. 673, 679
(1986). "The trial court shall determine 'whether the circumstances fairly
support an inference of bias' or whether the proposed examination raises any
concerns." Jackson, 243 N.J. at 66 (quoting Bass, 224 N.J. at 303).
As our Supreme Court has instructed,
Our Rules of Evidence start from the proposition that
all relevant evidence is admissible, subject to
delineated categories of excluded evidence.
N.J.R.E. 402 ("Except as otherwise provided in these
rules or by law, all relevant evidence is admissible.").
Rule 607 permits, "for the purpose of impairing or
supporting the credibility of a witness, any party
including the party calling the witness [to] examine the
witness and introduce extrinsic evidence relevant to the
issue of credibility," unless an exception within that
rule applies or either Rule 405 or 608 renders the
evidence inadmissible.
Those Rules preclude the use of specific instances of
conduct to attack the credibility of a
witness. N.J.R.E. 405 provides that "[s]pecific
instances of conduct not the subject of a conviction of
a crime shall be inadmissible,"
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and N.J.R.E. 608 indicates that "a trait of character
cannot be proved by specific instances of conduct"
unless the prior act was a "false accusation against any
person of a crime similar to the crime with which
defendant is charged." Otherwise, relevant evidence
may also be excluded on the ground that "its probative
value is substantially outweighed by the risk of . . .
undue prejudice." N.J.R.E. 403.
[State v. Scott, 229 N.J. 469, 481 (2017).]
Here, when the trial court barred defendant from questioning Nijera
regarding one of her pending charges, it relied, in part, on N.J.R.E. 608 and the
holding in Scott, noting that generally, "a trait of character cannot be proved by
specific instances of conduct." The judge observed that defendant was "trying
to show a dishonesty trait," even though Nijera was presumed innocent of her
pending charges, and it would be unfairly prejudicial to allow defendant to use
Nijera's pending charge of hindering by providing false information to a law
enforcement officer to show "her potential untruthfulness when it’s a trait o[f]
character that's otherwise inadmissible under [Rule] 608." We perceive no
abuse of discretion in this regard, particularly since defendant was given latitude
to cross-examine Nijera regarding her two other pending charges, and was
permitted to explore whether she was promised some type of benefit by law
enforcement in exchange for her testimony at trial. We further note that Nijera
made her initial statement to police before charges were lodged against her so
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any suggestion by defendant that her corresponding testimony at trial was tied
to her charges is unconvincing.
Similarly, given our deferential standard of review regarding a trial court's
evidentiary rulings, we are not persuaded the judge erred in precluding
defendant from introducing Elijah's parole records to show either Nijera or
Robin may have lied about Elijah possessing or using a gun during the incident,
given Elijah's parole status at the time of the March 2016 incident. Certainly,
defendant was able to explore the potential bias of Nijera and Robin by
addressing their familial relationship with Elijah. Moreover, as the judge noted,
she allowed defense counsel to explore with both Nijera and Robin whether they
knew Elijah was on parole, and counsel also could have asked the detective,
when he testified for the State, if he knew Elijah's parole status at the time of
the shooting. Nonetheless, defense counsel opted not to pursue a line of
questioning involving Elijah's parole status when these witnesses testified.
Therefore, we perceive no basis to disturb the judge's decision to preclude
defendant from introducing Elijah's parole records once these witnesses had
completed their testimony.
Regarding Point II, defendant claims the trial court failed to fully define
the element of possession in its jury instructions. In particular, he contends the
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jury instruction regarding the element of possession did not track with the Model
Jury Charge so that the jury did not understand possession "signifies an
intentional control and dominion." He adds, "[t]he trial court failed to include
this definition of possession - - 'knowingly procured or received the thing
possessed and was aware of his control thereof for a sufficient period to have
been able to terminate his possession at any point' - - at any place in its
instructions," and that this failure deprived him "of his rights to due process and
a fair trial." We are not convinced.
The failure to charge an element of an offense ordinarily constitutes
reversible error. State v. Green, 86 N.J. 281, 288-89 (1981). A defendant is
entitled to a complete and accurate statement of law. State v. Thompson, 59
N.J. 396, 411 (1971). This requirement includes instructing the jury on all
essential and fundamental issues and elements of each offense. Green, 86 N.J.
at 290. "[E]rror in a jury instruction that is crucial to the jury's deliberations on
the guilt of a criminal defendant is a poor candidate for rehabilitation." State v.
Vallejo, 198 N.J. 122, 141 (2009) (quoting State v. Jordan, 147 N.J. 409, 422
(1997)). Proper jury instructions are "essential to a fair trial" and incorrect
instructions "are almost invariably regarded as prejudicial . . . ." State v. Vick,
117 N.J. 288, 289 (1989). "Nevertheless, an error in the charge that is clearly
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harmless and could not have affected the jury's deliberations will not warrant a
reversal." Pressler & Verniero, Current N.J. Court Rules, cmt. 3.3.1 on R. 2:10-
2 (2021). Additionally, "[t]he claim of harmful error in the charge will be
determined by review of the entire charge and the context of the error . . . . Thus
the charge as a whole may be deemed adequate even if not perfectly clear." Ibid.Generally, "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). Here, defendant did not object to the judge's instruction regarding
the element of possession that the State needed to prove regarding defendant's
weapons offenses, notwithstanding that he had the opportunity to do so, both
during the charging conference and when the jury was charged. Therefore,
defendant is not entitled to a reversal of his conviction absent a showing of plain
error, i.e., error "clearly capable of producing an unjust result." R. 2:10-2.
Defendant has not met his burden in this regard.
Here, as we have indicated, the judge instructed the jury regarding the
element of possession, stating, in part:
To possess an item under the law one must have a
knowing intentional control of an item accompanied by
knowledge of its character. So, a person who possesses
an item such as a handgun must know or be aware that
he possesses it, and he must . . . know what it is that he
possesses or controls, that is a handgun. The State must
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prove beyond a reasonable doubt that a possessor acted
knowingly in possessing the item.
....
A person may possess a handgun even though it was not
physically on his person at the time of his arrest if he
had, in fact, at some point prior to his arrest had control
over it.
Following these and other instructions regarding the element of
possession, the jury acquitted defendant of possessing a weapon for an unlawful
purpose and found him guilty of possessing a handgun without a permit. Under
these circumstances, and viewing the judge's instructions in their entirety, we
are not satisfied the judge committed error, let alone plain error, in her charge
to the jury. Thus, we perceive no basis to disturb defendant's conviction.
Affirmed.
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