STATE OF NEW JERSEY v. MARQUISE BROWN (18-11-1008, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2408-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARQUISE BROWN,
Defendant-Appellant.
_________________________
Submitted January 24, 2022 – Decided March 15, 2022
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 18-11-1008.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the briefs).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
As a result of the walk-up shooting death of Amir Pleasant, a jury found
defendant Marquise Brown guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1)
or (2), second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a)(1), second-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b)(1), and first-degree conspiracy to commit murder, N.J.S.A.
2C:5-2(a)(1) and N.J.S.A. 2C:11-3(a)(1).1 Defendant was tried with his co-
defendants, Rashad Exum and Jahi Beatty, who were both found not guilty of
murder and the weapon charges. However, Exum was found guilty of
conspiracy to commit murder, and Beatty was found guilty of hindering
apprehension or prosecution of another, N.J.S.A. 2C:29-3(a)(3), and hindering
his own apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1). (Ibid.). A fourth
person who was with defendants during the shooting, William Davis, entered
into a cooperation agreement with the State resulting in his guilty plea to lesser
charges and trial testimony against defendants.
After merger, defendant was sentenced to life in prison for murder with
an eighty-five percent period of parole ineligibility under the No Early Release
Act, N.J.S.A. 2C:43-7.2. Because of a prior conviction for possession of a
1
The trial judge dismissed the charge of second-degree possession of a weapon
by a person not permitted to do so, N.J.S.A. 2C:39-7(b)(1).
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firearm, defendant was required to serve at least thirty-five years under the
Graves Act, N.J.S.A. 2C:43-6(c); N.J.S.A. 2C:43-7(a)(6).
On appeal, defendant through counsel challenges his conviction and his
sentence, arguing:
POINT I
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS
VIOLATED BECAUSE THE JURY SAW HIM
COMING OUT OF THE COURTROOM IN
HANDCUFFS AND THE TRIAL COURT FAILED
TO PROPERLY VOIR DIRE THE JURY PANEL
AND ENSURE THERE WAS NO UNFAIR
PREJUDICE TO DEFENDANT.
POINT II
THE TRIAL COURT ERRED IN DENYING
DEFENDANT’S MOTION FOR A MISTRIAL
BECAUSE OF THE CONTINUOUS USE OF A
NICKNAME BEFORE THE JURY.
POINT III
THE EDITED VERSION OF CO-DEFENDANT JAHI
BEATTY'S STATEMENT TO POLICE PLAYED FOR
THE JURY BELOW CAUSED AN UNFAIR TRIAL
FOR DEFENDANT. (NOT RAISED BELOW).
POINT IV
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION FOR ACQUITTAL.
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POINT V
DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.
In a pro se supplemental brief, defendant argues:
POINT I
THE TRIAL COURT VIOLATED DEFENDANT
MARQUISE BROWN['S] SIXTH AMENDMENT
RIGHT TO CONFRONT THE WITNESS AGAINST
HIM AND DUE PROCESS UNDER THE
FOURTEENTH AMENDMENT OF THE U.S.
CONST. AMEND. 6 AND 14.
A. PLAIN ERROR
B. HEARSAY AND CONFRONTATIONAL
RULE
POINT II
APPELLANT[']S DUE PROCESS AND RIGHT TO
FAIR TRIAL W[ERE] VIOLATED BECAUSE [A]
JUROR HAD BEEN EXPOSED TO UNFAIR
OUTSIDE PREJUDICE AND THE TRIAL COURT
FAILED TO PROPERLY VOI[R] DIRE THE JURY
PANEL TO ENSURE THERE WAS NO UNFAIR
PREJUDICE TO DEFENDANT.
We conclude that none of defendant's arguments have merit and affirm.
I.
On April 29, 2017, at approximately 4:53 a.m., Jersey City police received
a call of gunshots fired around 15 Dwight Street. When the police arrived at the
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location they saw no victim, but they did see numerous shell casings and
shattered glass in the street. Moments later, the police received a report of
nearby motor vehicle accident. Upon arriving at the accident scene at 5:10 a.m.,
they learned that a man with two gunshots to his head was in a car with front-
end damage stopped in the middle of the intersection of Jersey Avenue and
Grand Street near the Jersey City Medical Center. The victim, identified as
Pleasant, was taken to the hospital by emergency medical transport, where he
was pronounced dead.
The ensuing investigation obtained a surveillance video depicting a man,
at 4:47 a.m. on April 29, approach Pleasant's car on Dwight Street and fire four
gunshots into Pleasant's car. After being shot, Pleasant drove away and crashed
his car. Additional surveillance video showed a silver two-door Honda Civic
stopping in the area of the shooting on two separate occasions: roughly thirty
minutes before the shooting and around the time of the shooting. The police
were able to identify the car and its owner, Chayana Clark, Davis's live-in
girlfriend at the time and the mother of his child.
Learning that police had "grabbed" Clark and were looking for him, Davis
voluntarily went to the Hudson County Prosecutor's Office on May 3, where he
told investigators that defendant shot and killed Pleasant. After giving his
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statement, Davis was arrested and charged with "murder, conspiracy, [and]
unlawful possession of a weapon." Defendant was arrested the next day.
According to Davis, he did not make any type of deal with the State in exchange
for giving his statement.
Nine months later, on February 8, 2018, Davis gave a second statement to
investigators. He identified himself, defendant, Exum, and Beatty in
surveillance video still photos taken from a convenience store they went to right
after Pleasant's murder.
On July 11, 2018, Davis pled guilty to second-degree aggravated assault
and conspiracy in connection with "a cooperation agreement[,]" in which he
agreed to "testify and tell the truth" about Pleasant's killing.
Defendant's trial was conducted over fourteen days in September 2019.
Davis was the State's primary witness. His testimony essentially mirrored his
statements to investigators.
Davis testified that he was driving Clark's car with defendants Beatty and
Exum as passengers when they saw Pleasant, an "op[p]"—meaning "[e]nemy
[o]pposition"—of theirs, at a gas station. Defendant, known as "Shoddy" to
Davis, was not initially with them; through happenstance they saw defendant on
the street and stopped to talk to him. Exum asked defendant if he had a gun
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because they had just "seen our op[p]s." Defendant responded that he would
"go get it," then got in the back seat of the car and directed Davis to drive to a
nearby building. When they arrived at their destination, defendant got out of
the car, entered the building, and came back within five minutes. He returned
to the back seat of the car, behind the front passenger's seat. Davis did not see
a gun.
Davis then drove back to where they had seen Pleasant. Once they were
in the vicinity, Davis heard a gun being "cocked . . . back." Exum told defendant
"[t]hat's him right there." After Davis stopped the car, defendant exited and,
within moments, Davis heard approximately four gunshots. Exum climbed into
the back seat. After defendant returned to the car and sat in the front passenger
seat, Davis drove away. Davis testified that defendant then stated "[h]e shot him
two times in the head. And he shot two more times."
II.
We first address defendant's arguments involving jurors. In Point I, he
argues through counsel that the trial court "failed to ensure [his] fundamental
right [to a fair trial] was secured . . . by failing to sufficiently inquire of juror
[number ten] or of any of the other jurors on the panel" regarding their
observation of defendant in handcuffs during the trial. In Point II of his
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supplemental pro se brief, defendant argues that after the court dismissed juror
number eleven for being exposed to unfair outside influence, it failed to voir
dire the other jurors to ensure defendant was not prejudiced. Because neither
contention was raised before the trial court, defendant must show the court's
alleged shortcomings were plain error "clearly capable of producing an unjust
result." R. 2:10-2.
A.
Under the Sixth Amendment of the United States Constitution and Article
I, paragraph 10 of the New Jersey Constitution "the right of a defendant to be
tried by an impartial jury is of exceptional significance." State v. Williams, 93
N.J. 39, 60 (1983). The very essence of a fair trial is the securing and
preservation of an impartial jury. See Sheppard v. Maxwell, 384 U.S. 333,
362-63 (1966). "[A] defendant is entitled to a jury that is free of outside
influences and will decide the case according to the evidence and arguments
presented in court in the course of the criminal trial itself." Williams, 93 N.J. at
60.
If the trial judge is aware that outside influences may have influenced
jurors, "the . . . judge must take action to assure that the jurors have not become
prejudiced as a result of facts which 'could have a tendency to influence the jury
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in arriving at its verdict in a manner inconsistent with the legal proofs and the
court's charge.'" State v. Bisaccia, 319 N.J. Super. 1, 12 (App. Div. 1999)
(quoting State v. Scherzer, 301 N.J. Super. 363, 486 (App. Div. 1997)). The test
is not whether the irregularity actually influenced the jurors but "whether it had
the capacity of doing so." Panko v. Flintkote Co., 7 N.J. 55, 61 (1951).
"[W]here . . . there is the possibility of actual juror taint or exposure to
extraneous influences . . . , the judge must voir dire that juror and, in appropriate
circumstances, the remaining jurors." Bisaccia, 319 N.J. Super. at 13 (citation
omitted). We summarized the trial judge's obligation stating:
The thrust of the New Jersey and federal cases on
mid-trial allegations of jury misconduct is that the trial
judge must make a probing inquiry into the possible
prejudice caused by any jury irregularity, relying on his
or her own objective evaluation of the potential for
prejudice rather than on the jurors' subjective
evaluation of their own impartiality. Although the trial
judge has discretion in the way to investigate
allegations of jury misconduct, an adequate inquiry on
the record is necessary for the purposes of appellate
review.
[Scherzer, 301 N.J. Super. at 487-88 (citation omitted).]
"A new trial, however, is not necessary in every instance where it appears
an individual juror has been exposed to outside influence." State v. R.D., 169
N.J. 551, 559 (2001). The trial judge must "consider the gravity of the
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extraneous information in relation to the case, the demeanor and credibility of
the juror or jurors who were exposed to the extraneous information, and the
overall impact of the matter on the fairness of the proceedings." Ibid.Additionally, "when that extraneous information is knowledge unique to one
juror who is excused mid-trial," the court must examine "whether there was at
least an opportunity for the extraneous information to reach the remaining
jurors." Ibid.In particular, the judge should ask the juror about
the specific nature of the extraneous information, and
whether the juror intentionally or inadvertently has
imparted any of that information to other jurors.
Depending on the juror's answers to searching
questions by the court, the court must then determine
whether it is necessary to voir dire individually other
jurors to ensure the impartiality of the jury. . . .
Although the court should not simply accept the juror's
word that no extraneous information was imparted to
the others, the court's own thorough inquiry of the juror
should answer the question whether additional voir dire
is necessary to assure that impermissible tainting of the
other jurors did not occur.
[Id. at 560-61.]
An appellate court reviews a trial court's determinations as to whether a
jury has been tainted and whether to expand an inquiry to other jurors under an
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abuse of discretion standard. Id. at 559-61. The trial court should explain its
determination "on the record to facilitate appellate review." Id. at 560.
B.
Defendant's first challenge arises from the concern that juror number ten
may have seen defendant in handcuffs. The judge and counsel believed that
when the juror returned to the courtroom after initially going downstairs with
the other jurors for their lunch break, the juror had the opportunity to see
defendant being escorted to lock up. Defense counsel recommended that the
judge ask juror number ten, "is there anything you need to tell us about, you
know, when you came . . . back up on the floor"? Counsel did not want the
questioning to "come across as . . . accusatory [b]ecause . . . if he didn't see
anything, . . . [it would be] blowing this out of proportion."
Before the trial reconvened, the judge questioned juror number ten outside
of the presence of the other jurors. The juror confirmed that after the jury was
released for lunch, he went downstairs and came back up on the elevator because
he believed he forgot his car keys. He stated he "never even got off the elevator"
because he "realized that [his] keys were in [his] bag." When asked, he denied
seeing anything unusual from inside the elevator. Defense counsel declined the
judge's invitation to ask the juror any questions. Before allowing juror number
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ten to return to the jury panel, the judge instructed him not to discuss anything
they talked about.
The record demonstrates that the judge properly questioned juror number
ten out of concern that the juror may have seen defendant in handcuffs. There
is little question that jurors should not see the defendant on trial before them in
handcuffs or similar restraints because of the potential it would prejudice their
view of his or her innocence. See State v. Damon, 286 N.J. Super. 492, 498 ("A
defendant's freedom from handcuffs or shackles is important to his right to a fair
and impartial trial.") (citation omitted). Yet, absent a showing of prejudice, the
fact that one or more jurors saw a defendant handcuffed outside the courtroom
does not deprive him or her of a fair trial. State v. Sykes, 93 N.J. Super. 90,
91-94 (App. Div. 1966).
In this trial, there was no evidence juror number ten saw defendant in
handcuffs. Heeding defense counsel's concern not to accuse juror number ten
of any wrong, the judge carefully questioned the juror and found him creditable
in responding that he did not see anything upon returning upstairs to the
courtroom when the handcuffed defendant was being escorted out of the
courtroom. Neither the defense nor the State asked the judge to question the
jury panel if anyone saw defendant in handcuffs. The judge did not abuse her
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discretion in allowing juror number ten to remain on the jury and not to voir dire
the other jurors. Defendant has not shown any actual prejudice occurred, thus
there was no plain error.
C.
Two days after the concerns about juror number ten, the judge voir dired
juror number eleven after he asked to speak to her in private concerning his
uncertainty about his ability to serve as a juror given "the severity of the case ."
The request came during a second recess after earlier testimony that morning.
In the presence of counsel and defendant but not the jury panel, juror
number eleven disclosed that he inadvertently learned Pleasant was a patient in
a mental health and addiction clinic where his live-in girlfriend worked. The
juror avowed that he did not discuss the matter with any other jurors. Both
defense counsel and the prosecutor stated the juror should be dismissed. The
judge agreed. Before dismissing the juror, the judge directed him not to speak
to any jurors about his knowledge of Pleasant. At no point did the defense or
the State request that the other jurors be questioned on whether juror number
eleven disclosed any information to them about Pleasant. Defense counsel asked
the judge to instruct the jury that juror number eleven was excused for reasons
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"personal to that juror" and that the jury was "not to consider that ." The court
instructed the jury to that effect.
Defendant now argues that after the judge dismissed juror number eleven,
he erred by "fail[ing] to make any inquiry as to whether the other sitting jurors
had [] been exposed to this extraneous information." This argument is
unpersuasive as no manifest injustice occurred in not questioning the other
jurors about juror number eleven's knowledge that his girlfriend knew Pleasant
from her employment.
Juror number eleven informed the judge that he did not discuss the matter
with any other jurors. While "[t]he response of a juror is not necessarily
sufficient," R.D., 169 N.J. at 563, the circumstances here lend additional
credibility to the juror's insistence that he did not speak to the other jurors. In
addition to "the trial court's apparent assessment of his credibility," ibid., the
fact that none of the attorneys for the three defendants nor the prosecutor
requested a voir dire of the other jurors suggests they also believed juror number
eleven's claim that he did not speak to other jurors about Pleasant. Furthermore,
the juror's "promptness in coming forward," ibid., and his request to speak with
the trial judge "in private" (10T87;10T91), demonstrates an actual effort to keep
the extraneous information from his fellow jurors. Finally, the court's
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"repeated[] instruct[ion] [to] the jurors not to discuss the case with each other
until they were so directed," id. at 562, including immediately before both
recesses on the day of the voir dire, sufficiently protected defendant's right to a
fair trial. (10T62;10T86). "We presume the jury followed the [judge's]
instructions." State v. Smith, 212 N.J. 365, 409 (2012).
Moreover, the extraneous information that Pleasant, the murder victim,
was a patient at a mental health and addiction clinic had no capacity to "induce
bias or prejudice," or otherwise influence the jury in arriving at its verdict in a
manner inconsistent with the evidence. The information did not involve racial
bias, State v. Tyler, 176 N.J. 171, 182 (2003), extraneous knowledge about the
crime, State v. Wormley, 305 N.J. Super. 57, 68-70 (App. Div. 1997), extraneous
assertions of a defendant's guilt, State v. Grant, 254 N.J. Super. 571, 584-86
(App. Div. 1992), or extraneous information about a defendant's prior crimes,
State v. Fortin, 178 N.J. 540, 576 (2004). In sum, defendant points to no bias
or prejudice that occurred because the judge did not voir dire the jury panel after
juror number eleven's disclosure about Pleasant.
III.
In Point II, defendant argues the trial judge erred in denying his motion
for a mistrial based on Davis's continuous use of defendant's nickname,
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"Shoddy," during his testimony. He argues the ruling "allowed defendant to be
improperly prejudiced by the continual and excessive use of the Shoddy
nickname before the jury at trial, warranting a new trial."
"Whether an event at trial justifies a mistrial is a decision 'entrusted to the
sound discretion of the trial court.'" State v. Smith, 224 N.J. 36, 47 (2016)
(quoting State v. Harvey, 151 N.J. 117, 205 (1997)). We will not disturb the
denial of a mistrial "unless there is a clear showing of mistaken use of discretion
by the trial court," Greenberg v. Stanley, 30 N.J. 485, 503 (1959) (citations
omitted), or a manifest injustice would result, State v. LaBrutto, 114 N.J. 187,
207 (1989). We discern no abuse of discretion.
Before trial, defendant's counsel persuaded the judge that because there
could be "some prejudicial value in the mind[s] of the jurors hearing" the
nickname, its use would be limited to just an initial identification of defendant.
The judge advised that, upon request, she would give a limiting instruction if
she determined that defendant might be prejudiced by the repeated use of his
nickname.
On direct examination, Davis initially identified defendant by his
nickname. Although the prosecutor thereafter referred to defendant as "Mr.
Brown" during direct examination, Davis only briefly referred to defendant by
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his legal name and otherwise continued to use the name "Shoddy" in his
testimony. He also referred to co-defendants Beatty and Exum by their
nicknames, "Ja Ja" and "Ra Ra." After defense counsel objected and sidebar
was held, the prosecutor increased his use of leading questions referring to
defendant as "Mr. Brown." At the end of Davis's testimony for the day, the court
instructed Davis not to use defendant's nickname.
The next day, defendant unsuccessfully moved for a mistrial due to
Davis's use of defendant's nickname. The judge ruled that the references to the
nickname were not "so prejudicial . . . to warrant a mistrial." However, the judge
allowed that if the use of defendant's nickname continued, the motion could be
renewed. From that point on, Davis mostly referred to defendant by his legal
name, but stated the nickname twice.
In his closing statement, the prosecutor referred to defendant's nickname
once when paraphrasing a statement allegedly made by Exum. After
summations and outside the presence of the jury, defendant's trial attorney
objected. He acknowledged that the prosecutor's use of the nickname "was an
oversight clearly" and after that "brief moment" the prosecutor "went right back
to Mr. Brown or Marquise Brown." Defense counsel requested that "no . . .
further reference be given to" the nickname and specifically requested that a
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"curative instruction" not be given as it would draw more attention to the
nickname. Defendant did not renew his motion for a mistrial.
In criminal trials, references to defendants as well as witnesses by
nicknames is not uncommon. Hence, "use of defendant's street nickname during
trial cannot serve as a per se predicate for reversal." State v. Paduani, 307 N.J.
Super. 134, 146 (App. Div. 1998) (identifying the defendant to police by his
nickname, "Marijuana"). Referring to a defendant's pejorative nickname is
appropriate where it is relevant to identifying a defendant but "should be kept
from the jury [if not] relevant for some purpose." Id. at 147 (quoting State v.
Salaam, 225 N.J. Super. 66, 72 (App. Div. 1988). "[T]o constitute grounds for
reversal, 'some tangible form of prejudice' to the defendant must be
demonstrated." State v. Parker, 216 N.J. 408, 420 (2014) (quoting Salaam, 225
N.J. Super. at 73). Prejudice occurs where a nickname or alias has "been
intentionally offered as indicia of guilt," Paduani, 307 N.J. Super. at 147
(quoting Salaam, 225 N.J. Super. at 73), or to "impeach the credibility of a
witness," Parker, 216 N.J. at 421. On the other hand, where "the references to
the defendants' false name[] were brief and the State did not use the false name[]
to make a substantive point or impeach the credibility of a witness" does not
serve as a basis to reverse a conviction. Id. at 421.
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There is no dispute that initial use of defendant's nickname was properly
admitted for identification. Despite attempts to limit its use, Davis's use of it
more times than necessary did not constitute a reason for reversal of his
convictions because no prejudice occurred. The State did not make any
connection between the nickname and the allegations. It did not refer to
"Shoddy" as a "street name" or imply that it related to criminal activity
suggesting his guilt. Also, the State did not use the nickname to attack the
credibility of any witness
In sum, nowhere during the trial did Davis's testimony or the prosecutor's
remarks stated or suggested the nickname had a negative association. Moreover,
by declining that a curative instruction regarding the nickname be given, defense
counsel avoided the possibility such an instruction suggesting defendant's
nickname carried a negative connotation.
IV.
In Point III, as well as Point I of his pro se supplemental brief, defendant
argues for the first time on appeal that he was deprived of a fair trial when the
jury was allowed to view the nontestifying Beatty's videorecorded police
statement, in which the State redacted the comment that defendant was "never
there [in the car]." The jury was permitted to see and hear Beatty's claim that
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he did not know who was in the passenger's seat, and when he stated he did not
know if it was defendant, the police investigator replied "Yeah." The jury also
viewed Beatty's statement that he was asleep for much of his time in the car and
only Exum and Davis were in the car.
Defendant contends the "redacted statement [was] prejudicial [because]
it (1) distorts the meaning of the statement, or (2) excludes information
substantially exculpatory of the nontestifying defendant." United States v.
Smith, 794 F.2d 1333, 1335 (8th Cir. 1986). Defendant asserts Beatty's omitted
statement was necessary to provide "completeness," "context," and "avoid
misleading the trier of fact" in order to ensure "a fair and impartial
understanding" of the admitted statement. State v. DeRoxtro, 327 N.J. Super.
212, 223 (App. Div. 2000) (quoting State v. Gomez, 246 N.J. Super. 209, 220)).
Defendant's arguments are without merit.
While it may have been preferable for the jury to hear the redacted portion
of Beatty's statement, the jury was permitted to hear Beatty's exculpatory
remarks. The jury heard Beatty state three times that he did not know who was
in the car other then he, Exum, and Davis because he was asleep "the whole
entire time." There was, however, Davis's testimony that defendant joined
Davis, Exum, and Beatty in the car; he left the car to retrieve a gun; they drove
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until Pleasant was spotted again; he got out of the car; gunshots were heard; and
he returned to the car declaring he shot Pleasant four times. Furthermore, Davis
testified that following the shooting they went to a convenience store, which he
confirmed in a still photo from the store's surveillance video camera system that
was admitted into evidence depicting him and defendants.
Defendant's reliance on Smith and other cases is misplaced. Smith held
that a nontestifying defendant's "right to have the entire statement introduced,"
also known as "the rule of completeness," is "violated . . . when the statement in
its edited form, while protecting the sixth amendment rights of the co-defendant,
effectively 'distorts the meaning of the statement or excludes information
substantially exculpatory' of the nontestifying defendant." 794 F.2d at 1335(quoting United States v. Kaminski, 692 F.2d 505, 522 (1982)). In such a case,
"severance is . . . required." Kaminski, 692 F.2d at 522.
Cases cited by defendant specifically concerned whether severance was
required where portions of a statement by a nontestifying defendant that were
omitted because they were inculpatory to a co-defendant were substantially
exculpatory of the declarant. Smith, 794 F.2d at 1335; Kaminski, 692 F.2d at
522. In this case, the declarant was Beatty, not defendant, and the statements
were neither inculpatory of defendant nor exculpatory of Beatty.
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Nevertheless, Beatty's omitted statement did not exculpate defendant. He
insisted he did not know if defendant got in the car because he was sleeping.
Accordingly, omission of the statement was not clearly capable of producing an
unjust result and does not constitute plain error. See State v. Downey, 237 N.J.
Super. 4, 14 (App. Div. 1989) (holding that any error in the admission of
testimony was harmless because it was "merely cumulative of the inferences to
be drawn from other evidence").
V.
In Point IV, defendant argues that the trial court erred in denying his Rule
3:18-1 motion for acquittal. Defendant argues that "[t]he purchased testimony
of . . . Davis was not nearly enough to sustain the State's case by the reasonable
doubt standard." We are unpersuaded because Davis's testimony, if found
credible by the jury, was undeniable evidence of defendant's guilt.
"In assessing the sufficiency of the evidence on an acquittal motion, we
apply a de novo standard of review." State v. Williams, 218 N.J. 576, 593-94
(2014). When a defendant moves for acquittal following the conclusion of the
State's case, the trial judge must determine whether "based on the entirety of the
evidence and after giving the State the benefit of all its favorable testimony and
all the favorable inferences drawn from that testimony, a reasonable jury could
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find guilt beyond a reasonable doubt." Id at 594. "[C]redibility issues . . .
[should] not be resolved by the judge when ruling on the motion" to acquit. State
v. Pickett, 241 N.J. Super. 259, 265 (App. Div. 1990). "These issues [are]
properly submitted to the jury." Ibid.Davis, admittedly an accomplice to Pleasant's murder, provided the only
evidence implicating defendant as Pleasant's killer as a result of his cooperation
agreement with State. "[O]ne witness' testimony" without corroborating
evidence is sufficient to sustain a conviction in most cases, State v. Williams,
122 N.J. Super. 377, 379 (App. Div. 1993) (citation omitted), including "solely
on the uncorroborated testimony of an accomplice," State v. Adams, 194 N.J.
186, 207 (2008) (internal quotation omitted); see also State v. Roundtree, 106
N.J. Super. 135, 151 (Law Div. 1969), aff'd, 118 N.J. Super. 22 (App. Div. 1971)
("jurors are permitted to find facts based upon the testimony of a single witness
whom they find to be worthy of belief.").
It is permissible trial strategy for a defendant "to expose the bias of [a]
[w]itness" who testifies against him or her on the expectation of "favorable
treatment promised . . . for his [or her] cooperation in [the] case . . . for the
purpose of undermining his credibility before the jury." State v. Hernandez, 225
N.J. 451, 464-465 (2016). A defendant may do so both through cross-
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examination on the witness's "expectation of favorable treatment" and by
arguing to the jury that the witness "has sold his services and testimony to the
State." Id. at 465. It was therefore up to the jury, not the judge, to determine if
Davis's testimony was believable. See State v. Pickett, 241 N.J. Super. 259, 265
(App. Div. 1990). Hence, the judge correctly denied defendant's motion to
acquit.
VI.
In Point V, defendant argues through counsel that his life sentence was
excessive, the trial court inadequately explained its sentencing decision, and a
remand is warranted so that the judge can consider mitigating factor fourteen,
N.J.S.A. 2C:44-1(b)(14), even though it took effect after he was sentenced. We
are unpersuaded.
Defendant, twenty-three years old at the time of the murder, had five prior
indictable convictions as an adult, including "two convictions for possession of
a firearm . . . for an unlawful purpose," for which he was sentenced to five years
in state prison with three years parole ineligibility. At his December 9, 2019
sentencing, the judge applied aggravating factors three, risk of committing
another offense; six, the extent and seriousness of prior criminal record; and
nine, the need for deterrence. N.J.S.A. 2C:44-1(a)(3), -1(a)(6), and -1(a)(9).
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She determined no mitigating factors applied. Based upon the credible evidence
in the record, the judge's weighing of the sentencing factors that were in effect
at the time was not an abuse of discretion and defendant's sentence does not
shock the judicial conscience. State v. Bolvito, 217 N.J. 221, 228 (2014)
(citations omitted).
Effective October 19, 2020, approximately ten months after defendant was
sentenced, a new statutory mitigating factor fourteen took effect providing
consideration of that "[t]he defendant was under 26 years of age at the time of
the commission of the offense." N.J.S.A. 2C:44-1(b)(14). We are mindful that
our Supreme Court granted certification in State of New Jersey v. Rahee Lane,
No. A-92-20 (App. Div. March 23, 2021), cert. granted, 248 N.J. 534 (2021), in
which the legal issue is whether N.J.S.A. 2C:44-1(b)(14) applies retroactively,
and if so, to what extent. Unless and until the Court holds to the contrary in
Lane, we abide by our holding in State v. Bellamy, 468 N.J. Super. 29, 48 (App.
Div. 2021), that mitigating factor fourteen does not apply retroactively absent
resentencing "for a reason unrelated to the adoption of [N.J.S.A. 2C:44 -
1(b)(14)]." 2 Nothing in this opinion precludes the court on remand from
2
The Court's recent decision in State v. Rivera, 249 N.J. 285 (2021), is
distinguishable. In Rivera, the Court had an independent basis to remand for
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amplifying its sentencing decision by considering whether the sentence would
be different accounting for the new mitigating factor. Cf. State v. Canfield, No.
A-5586-18 (App. Div. 2022) (slip op. at 126).
To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack sufficient merit to warrant discussion in this
opinion. R. 2:11-3(e)(2).
Affirmed.
resentencing: the improper treatment of the defendant's youth as an aggravating
factor. Id. at 303. Accordingly, the trial court was permitted to apply mitigating
factor fourteen. Id. at 303-304. Here, there is no independent basis to remand
for resentencing.
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