Opinion
DOCKET NO. A-3684-09T1
2013-09-11
STATE OF NEW JERSEY, Plaintiff-Respondent, v. COREY K. MANDERVILLE, Defendant-Appellant.
McPherson Law Offices, LLC, attorneys for appellant (Shevelle McPherson, of counsel and on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Espinosa and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-08-2922.
McPherson Law Offices, LLC, attorneys for appellant (Shevelle McPherson, of counsel and on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Corey Manderville was indicted along with Lawrence "Reds" Willis and Michael Jay Coombs (a/k/a "Rico") on multiple charges arising from the robbery and shooting death of Dewey Marshall on August 29, 2005. Following a jury trial, defendant was convicted of first-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7 (count nine). The jury acquitted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one), and was unable to reach a verdict on the remaining counts, which charged defendant with first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (count seven).
We refer to the victim as "Dewey" hereafter to be consistent with the references to him in the record and mean no disrespect.
Count four charged the defendants with conspiracy to commit murder and/or robbery. Defendant was not convicted of conspiracy to commit murder.
Defendant was not charged in count eight.
In January 2009, after jury selection for the trial on the remaining charges began, defendant entered an "open plea" of guilty to first-degree robbery (count three). The State agreed to dismiss the remaining counts and to recommend that defendant's sentence run concurrent to the sentences imposed for his convictions at trial. Defendant wrote letters to the court and to his attorney in January and February 2010, stating he wished to withdraw his guilty plea, but no motion was filed. On the day of his sentencing, defendant told the court that he wanted to withdraw his guilty plea. His request was denied.
Defendant now appeals from his convictions and sentence and presents the following issues for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BEFORE SENTENCING.
POINT II
DEFENDANT WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I PAR. 10 OF THE NEW JERSEY CONSTITUTION AND THE COURT ERRED IN DENYING A MISTRIAL (PARTIALLY RAISED BELOW).
POINT III
THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S STATEMENT AT TRIAL BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT KNOWINGLY AND VOLUNTARILY WAIVED HIS RIGHTS PURSUANT TO MIRANDA V. ARIZONA, 384 U.S. 436, [86 S. Ct. 1602, 16 L. Ed. 2d 694] (1966).
POINT IV
THE SENTENCE IMPOSED BY THE COURT WAS EXCESSIVE (NOT RAISED BELOW).
POINT V
THE ADMISSION OF TESTIMONIAL HEARSAY STATEMENTS MADE BY DECLARANTS UNAVAILABLE FOR CROSS-EXAMINATION WERE PLAIN-ERROR VIOLATIONS OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION, AND HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL GUARANTEED BY THE FOURTEENTH AMENDMENT. U.S. CONST. AMEND. VI AND XIV.; N.J. CONST. ART. 1, PARA. 10 (NOT RAISED BELOW).
POINT VI
THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DENIED [DEFENDANT] A FAIR TRIAL (PARTIALLY RAISED BELOW).
POINT VII
DEFENDANT WAS ENTITLED TO JUDGMENT OF ACQUITTAL OR A NEW TRIAL, AS HIS CONVICTIONS WERE NOT SUPPORTED BY THE EVIDENCE (PARTIALLY RAISED BELOW).
POINT VIII
THE TRIAL COURT ERRED IN ADMITTING OTHER CRIMES EVIDENCE PURSUANT TO N.J.R.E. 404(b) THEREBY DENYING THE DEFENDANT A FAIR TRIAL.
POINT IX
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT THE LEGAL PROCEEDINGS, DURING THE NEGOTIATION OF HIS GUILTY PLEA AND AT SENTENCING.
After reviewing these arguments in light of the record and applicable legal principles, we conclude that none have any merit.
I.
We summarize the facts relevant to the issues raised based upon the evidence at trial, which included the testimony of co-defendant Coombs and defendant's statement to police.
Coombs pled guilty to aggravated manslaughter pursuant to a plea agreement that required him to provide truthful testimony.
Neville E. Molyneaux (a/k/a "Jamaic"), an admitted drug dealer, testified that Dewey made his living by selling drugs on Lakeshore Drive in Camden. At approximately 4:00 p.m. on August 29, 2005, he was standing on a sidewalk with Dewey, when a red Grand Prix automobile pulled up. Molyneaux stated that the driver, whom he knew as "Reds" (Willis), gave Dewey "a look like . . . 'I'm going to get you.'" Molyneaux also knew defendant, identified him in court, and testified that he was also in the car. Molyneaux testified that Dewey looked nervous and left the area. The two went to Dewey's apartment in the Ferry Station apartment complex.
In his statement to police, defendant said that, earlier that day, he accompanied Willis to a rental car agency, where Willis rented a burgundy Pontiac Grand Prix. Defendant stated he had previously worked with Willis at the "MRA." After leaving Dewey and Molyneaux, Willis and defendant drove to pick up Coombs and Earl Moore (a/k/a "BG"), and drove around.
Moore was not charged in this indictment. However, in 2010, he was convicted of numerous offenses in connection with this crime, including first-degree felony murder, N.J.S.A. 2C:11-3(a)(3), for which he was sentenced to a term of life imprisonment.
Coombs testified he had become an "official" member of the "9-3" set of the Bloods gang about two months earlier and that Moore was a lieutenant in the Bloods. He stated that, on the day of the shooting, Moore called him and said, "yo, I need you to do something with me." Coombs understood that he was supposed to "[p]ut in some work," or to do a job or mission for Moore, who as a lieutenant in the gang had "high stain" or "rank."
Willis drove and Moore sat in the front passenger seat. Coombs sat in the back seat, next to defendant, whom he identified in court.
Defendant knew that Willis and Moore were members of the Bloods gang, but denied being a member in any gang. His denial was corroborated by Coombs, who testified defendant was not a Blood and that it was "unusual" for defendant to be included in the mission because you are not "supposed to handle Blood business in front of neutrals, civilians." However, he said that "backups" are always used during a Bloods mission.
After they drove around for a while, one of the men said "yo, we need to get money" and then Moore and Willis discussed who they were "gonna get." Coombs understood they were planning to rob someone, but said he sat in the back, not saying too much. Coombs testified that defendant asked him if he "had anybody to rob," and that he replied, "No." Willis suggested they rob Dewey, who Coombs understood had been targeted because he was a drug dealer. Willis drove home, changed his clothes, and retrieved his gun and a rope, which he said he planned to use to "tie somebody up."
At approximately 11:00 p.m., Willis drove slowly past Dewey's apartment to "case[] it out," and then parked by a dumpster, where Willis and Moore continued to discuss the plan to rob Dewey. According to Coombs, defendant said, "we can't do that. That's Dewey's house. We can't do that. He know us." Willis and Moore responded, "fuck that. We strapped." Coombs testified this meant that they were armed. Willis passed his .25 caliber automatic gun over the front seat back to Coombs, who was seated next to defendant. Coombs claimed he attempted to give the gun back to Willis, but was forced to take it because Moore, a higher-ranking member of the Bloods, told him he had to.
Shortly thereafter, Molyneaux left Dewey's apartment and saw the Grand Prix parked by the dumpster, but could not see the occupants of the car because they had leaned back in their seats. Molyneaux called Dewey and warned him that "[t]he same red Grand Prix is out here." Dewey responded, "[h]e just . . . Blood dude, I know he cool." Nonetheless, at Dewey's request, Neidtikka Morris, Marshall's girlfriend, went to the dumpster, ostensibly to throw out some trash. When she returned to the apartment, she told Dewey she saw Willis and three men she did not recognize, who had pulled their hats down low, seated in a red Pontiac parked by the dumpster.
Willis drove to the parking lot of the apartment complex office, where they could observe Dewey's apartment. Willis and Moore continued to discuss the robbery plan. Coombs testified that defendant said he "didn't want to do it to Dewey because he said he knew him." When they had decided on a final plan, Moore told Coombs he would run up to Dewey's apartment and knock on the door; Coombs would wait by the tree next to the house and then come to help Moore. Moore was armed with a .380 caliber gun and Coombs had Willis's .25 caliber automatic gun. They got out of the car and proceeded to the apartment. Defendant remained in the car with Willis.
Moore knocked on Dewey's door, Dewey opened the door, and the two spoke for "a couple of minutes." Coombs could not hear what was said. Moore then pulled a gun and Dewey attempted to shut the door, but the door broke off the hinges during the ensuing struggle. Dewey ran, unarmed, from the apartment. Moore fired his gun at him, but missed. Dewey jumped off the steps leading to his apartment and when he landed on a platform below, Moore shot him in the back of the head. Coombs and Moore then ran back to the car. As Moore jumped into the car, he said he "hit him," and then threw the gun in Coombs's lap.
Morris ran out of the apartment to see Dewey lying on the sidewalk, and called 9-1-1. Dewey was taken to the hospital, where he died on August 31, 2005 from the gunshot wound to the back of his head.
On the evening of the shooting, Dewey's family members gathered at the hospital. Both defendant and Molyneaux joined them. Molyneaux told the family he had seen Willis and defendant in the red car earlier that day. Molyneaux testified that defendant said he was with Willis earlier that day, but that Willis had dropped him off and he "wasn't there when that happened." Defendant also said Willis had "nothing to do with" the shooting. In his statement to police, defendant admitted he called Willis from the hospital and warned him that "somebody said you had something to do wit Dewey gettin shot."
Shell casings were recovered from the gurney that carried Dewey to the hospital and from the doorway to his apartment. The State Police later determined that the shell casings had been fired from the same .380 caliber automatic gun. The gun, which Coombs claimed was later sold, was not recovered.
On September 1, 2005, Ronald Moten, then an investigator with the Camden County Prosecutor's Office, spoke with defendant by telephone and asked to meet with him. Defendant agreed and met with Moten and his partner, Detective Jose Torres, in a supermarket parking lot. The detectives spoke to defendant, who was not searched, handcuffed, or arrested, in their unmarked vehicle for about ten to fifteen minutes. Defendant, who was described as calm, relaxed, and cooperative, admitted he had been with Willis early on the date of the shooting, but claimed that at approximately 9:00 p.m., Willis dropped him off on 19th Street and River Road. At the conclusion of the interview, defendant got into his vehicle and drove away.
On January 30, 2006, Moten and Torres drove to defendant's home, told defendant they were still conducting an investigation into Dewey's murder, and asked to speak to him at the Prosecutor's Office. Defendant agreed, and drove to the office. Upon arrival, the detectives escorted defendant to an interview room. He was not handcuffed or under arrest. Moten read defendant his Miranda warnings. In his audiotaped statement, defendant initially denied any involvement in the robbery or shooting, although he admitted he had been in the car during the incident; knew that the other men were members of the Bloods; and had heard Willis and a man named "B" talking in Blood "language" about wanting to "stick" or rob someone because they "gotta eat."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant later admitted it was not true that he had been dropped off at 19th Street and River Road on the night of the shooting. He admitted hearing Willis suggest they "stick" or rob Dewey, and that, when he objected to the plan, Willis responded, "we strapped." He also admitted: they picked up "Reek" (Coombs) and "B" (Moore); Willis drove home and changed into a black shirt and black jeans; they drove to Dewey's apartment complex and parked by a dumpster and then by the office; and he saw "Jamake" (Molyneaux) and Dewey's girlfriend on the night of the incident. Defendant said that "Reek" and "B," who he knew had guns, exited the car, and about two minutes later, they ran back and Reek shouted, "he hit 'em," or "he hit," meaning that Dewey had been shot. He claimed that the robbery was not "premeditated," that he did not think the men would rob Dewey because they were just "joken type dudes," and that he had not known that they were planning on robbing Dewey until Moore and Coombs exited the car.
In addition to providing testimony regarding the events on the night of the shooting and information about the Bloods, Coombs also testified about his expulsion from the Bloods a few days after the shooting. He stated that Moore and a few other members of the 9-3 Bloods, grabbed him off the street, threw him in a van, and branded a "fourth paw" on his shoulder with a lit cigarette, signifying that he was no longer in the gang. Moore then told Coombs, "you know what you did. You ain't follow protocol. . . . You lucky we don't kill you." Coombs displayed his "dog paw" marks to the jury.
Detective Sergeant Ronald Hampton of the New Jersey State Police testified on behalf of the State as an expert in "identification and intelligence regarding the symbols, jargon, hierarchy and code of conduct of the Bloods street organization." He described the process by which a prospect is initiated into the Bloods, noting that upon initiation, a member receives three burn marks, called a "dog paw," identifying them as a member, and receives a fourth burn, or paw, when they are no longer in the gang. He described the hierarchy or structure of the gang, which is run by a leader, generally known as an "OG" or "Original Gangsta," followed by members holding the rank of captain, lieutenant, sergeant, and soldiers. Lower-ranking members are required to take orders from higher-ranking members. He also defined several terms used by Blood members, including: "putting in work," which means to commit a crime to benefit the gang and gain rank or "stain"; and "to eat," which means to kill someone or commit an assault.
II.
In Point I, defendant argues that the trial court erred in denying his pre-sentence motion to withdraw his guilty plea to robbery. We disagree.
Before the 2008 trial, the State offered to let defendant plead guilty to reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), with no specific sentencing recommendation, within the range of a five-to-ten-year term. He rejected that offer, proceeded to trial, and the jury returned a mixed verdict.
Defendant entered a guilty plea on January 7, 2009, after the jury had been empanelled for the trial on the unresolved charges. The time within which a negotiated plea must be submitted had expired pursuant to Rule 3:9-3(g). As a result, defendant entered into an "open plea" agreement with the State, in which he agreed to plead guilty to first-degree robbery and the State agreed to dismiss the remaining counts and recommend concurrent sentences.
The State also agreed to recommend that the court find mitigating factor N.J.S.A. 2C:44-1(b)(12) at sentencing if defendant willingly cooperated with law enforcement authorities. Defendant did not do so.
The court's colloquy with defendant prior to accepting his guilty plea included the following:
THE COURT: And you understand it's a crime of the first-degree, which means it would expose you to going to jail for up to a period of 20 years?
[DEFENDANT]: Yes.
. . . .
THE COURT: Additionally, I would ask if you're fully satisfied with the legal advice and services your attorney has provided to you?
[DEFENDANT]: Yes.
THE COURT: Are you pleading guilty voluntarily, of your own free will?
[DEFENDANT]: Yes.
THE COURT: Has anyone threatened or forced you to enter into this plea?
[DEFENDANT]: No.
. . . .
THE COURT: [Y]ou understand . . . that . . . no promises or representations . . . have been made to me by the Prosecutor or anybody else that would require me to impose anything less than the possibility of 20 years in . . . prison. I . . . would have
the opportunity to do that, but I would certainly consider the representations made by the State at . . . sentencing. . . .
. . . .
THE COURT: [Y]ou would understand clearly, sir, that the possibilities are that the maximum that you would expose yourself to by this plea is going to jail for twenty years.
. . . [Y]ou have to understand that this is what . . . the maximum could possibly be.
[I]t could be anything from ten to twenty years as a first-degree offense or I could treat this as a second-degree crime. I have the opportunity to do that, and if I do that then the top number would be ten years. But, all that being said, as we sit here today, the top number that you would expose yourself to would be the 20 years.
. . . .
[Y]ou just have to understand . . . to plead to this charge as a crime of the first-degree, that's what the possible exposure would be. Do you understand that, sir?
[DEFENDANT]: Yes, I understand.
The judge then confirmed that defendant understood that, because the offense was subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, he would have to serve eighty-five percent of the term imposed and be subject to five years parole supervision if sentenced as a first-degree offender. The judge went on to review the State's agreement to dismiss counts one, five, and seven and to recommend that the sentence be concurrent:
THE COURT: Have I accurately set forth the terms of the agreement as you understand it to be, sir?
[DEFENDANT]: Yes.
THE COURT: Has anyone made any other promises to you to get you to plead guilty?
[DEFENDANT]: No.
Defendant gave the following factual basis to support his plea:
[DEFENSE COUNSEL]: [W]ith regard to the charge of . . . first-degree robbery, . . . . [d]o you recall the events of . . . [August 29th, 2005]?Approximately one year later, defendant wrote to the court and his counsel, asking to withdraw his plea. Defendant's letter to the court stated:
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: [W]ere you in . . . Camden?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: [W]ere you in the company of . . . Willis and . . . Co[o]mbs?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And another gentleman . . . who's been referred to as . . . B?
[DEFENDANT]: Yes.
. . . .
[DEFENSE COUNSEL]: . . . And you were in the car and there was some discussion
between individuals in the car about going to Dewey['s] . . . house. Correct?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And . . . taking some item from Dewey . . . drugs I believe. . . . There was some discussion. Correct?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And . . . you were [in] the car at that time.
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: [A]t . . . some point . . . you were involved in those discussions . . . . Correct?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: [T]he car was driven to the apartments and two other gentlemen got out and intended to rob Dewey . . . . Correct?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And you agreed to remain in the car until they returned. You and Mr. Willis, correct?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And the car was to be used to facilitate their get away. Correct?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And . . . while you didn't know that they were going to do harm to [Dewey], you did understand that they would use force if it was necessary?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: [T]hey did in fact go to [Dewey's] house and encounter [Dewey] and did use some force with the purpose of taking from [Dewey]. Do you understand that?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And when they got out of the car, you fully understood what they intended to do. Not to kill him but to take from him . . . using force if necessary?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And you and I have discussed at great length the concept of accomplice liability?
[DEFENDANT]: Correct.
[DEFENSE COUNSEL]: And how you would . . . be responsible if you were involved in any . . . way in . . . facilitating . . . that crime?
[DEFENDANT]: Correct.
. . . .
[DEFENSE COUNSEL]: [W]hen the individuals got out of the car you knew they were armed, that is, Co[o]mbs and B?
[DEFENDANT]: Yeah. Yes.
[DEFENSE COUNSEL]: You saw a gun being passed around the car at some point. Correct? You knew when they got out they had a gun?
[DEFENDANT]: Yes.
I am writing in regards to my plea agreement. I do not understand the condition and term of the plea contract, it is in complete contradiction with what I bargained for, albeit I did sign my name. It is clear during the plea colloquy that I was confused as to the conditions. Also I never rec[ei]ved a copy of the plea for myself. At this time I am asking the court to retract my plea agreement. The situation leaves me in a state of nonplussed, an[d] I don't think it's fair that I subject myself to a contract that is in contradiction with what I discussed with my lawyer . . . and the prosecutor . . . it was not mentioned and I don't know if it's the plea contract because I don't have a copy. I believe the pro[s]ecutor an[d] my lawyer used quile [sic] to get me to sign. Once again I ask that the courts retract my plea due to my ignorance.
Defendant also wrote to his attorney. In his first letter, he repeated his assertion that he did not understand the terms of his plea agreement and, in his second letter, he also stated that he was innocent of the charge and only pled guilty because he believed he "would get a cap at 8 yrs."
Prior to sentencing, defense counsel, who had not filed a motion on defendant's behalf, advised the court that defendant wanted to withdraw his plea. Counsel stated defendant preferred "to just take his chances and take the matter to trial." Defendant claimed he had not planned or participated in the robbery, was not a gang member, and was innocent of the offense to which he had pled guilty.
Pursuant to State v. Slater, 198 N.J. 145 (2009), the trial court was required to consider and balance the following four factors in evaluating defendant's request to withdraw his guilty plea:
(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.The trial judge considered and applied the factors set forth in Slater, and denied defendant's motion.
[Id. at 157-58.]
Unlike most cases where a motion is made to withdraw a guilty plea, defendant's plea here came after a jury had convicted him of first-degree conspiracy to commit robbery as well as weapons offenses related to the robbery. His guilt was therefore established as to his knowledge of the plan to rob Dewey and agreement to further that goal. Further, he admitted to his knowledge and participation in the plan in providing the factual basis for his guilty plea. We agree with the trial court that, under the circumstances, defendant's bare assertion of innocence was insufficient to constitute a colorable claim of innocence to support defendant's motion. See ibid.
Under the second factor, the court considers "the nature and strength of defendant's reasons for withdrawal." Id. at 159. Misinformation or misunderstanding about the nature, extent, or direct penal consequences of the plea have been held sufficient grounds to withdraw a plea. Ibid.; see also State v. Johnson, 182 N.J. 232, 241 (2005) (allowing plea withdrawal where defendant was not informed about parole ineligibility under NERA).
Defendant's contention that he did not understand the penal consequences of his guilty plea is belied by the plea colloquy. The judge carefully, accurately, and repeatedly informed defendant that by entering into the plea he would be exposed to a term of twenty years. Defendant confirmed that he understood and accepted those terms. He was asked about the voluntariness of his plea and whether additional promises had been made to him. All of his responses reflected his understanding of the terms of the agreement, his satisfaction with trial counsel's representation, and the voluntariness of his guilty plea. He has presented no credible evidence of coercion to refute his sworn testimony. Since defendant's contention that he did not understand the consequences of his plea is unsupported by the record, it may fairly be concluded that his reason for seeking to withdraw his guilty plea amounts to a change of heart. The facts regarding the second Slater factor therefore weigh against granting defendant's motion.
Because defendant entered into an "open plea," in which the State made limited representations, the fact of an agreement here did little to promote the goal of finality. The third Slater factor thus tends to weigh slightly in favor of granting the motion to withdraw the plea.
Under the fourth Slater factor, the court should consider whether a plea withdrawal would unfairly prejudice the State. 198 N.J. at 161. Although there was no prejudice to the State here, it remains an important consideration that defendant entered his guilty plea after the jury was empanelled. Ibid. "Once a jury has been chosen and sworn, and a plea interrupts the trial, withdrawal should only be permitted in the rarest of circumstances." Ibid.
We review the trial court's decision to deny defendant's motion for abuse of discretion. Id. at 156; State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009). There was none here.
III.
In Point II, defendant argues that two instances of juror misconduct deprived him of a fair trial. We disagree.
After the court recessed on the first day of trial, juror number four called the judge's chambers and reported that juror number five mentioned she knew the family of a murder victim in a different crime that had occurred years earlier at the Ferry Avenue High Speed Line Station in Camden -- a disclosure she had apparently not made during jury selection. The judge questioned both jurors under oath. After repeating what she had reported earlier, juror number four testified she had not discussed the conversation with any other jurors, and would feel comfortable remaining on the jury with juror number five. Juror number five denied having the conversation described by juror number four; said she was not aware of any crimes in that area; did not know the people involved in this case; and could be fair and impartial. The judge found that the jurors could proceed "with an open mind and there should be no problem with them continuing as jurors," and then solicited comment from counsel.
Defense counsel did not object to the juror remaining on the jury, but suggested that given juror number five's denial, "a bit more questioning might be in order." The judge denied the request, explaining that "[i]n an abundance of caution," he had questioned the jurors about the report of what appeared to be "just a passing reference." The judge found that "[a] passing comment may have been made, but it would have been such a fleeting comment it didn't even really impact on Juror Number Five," and that "it does not appear there is anything outside that would adversely impact them." The judge repeated the general jury instructions.
There were no further requests, objections, or a motion for a mistrial. Defendant contends that the court committed plain error in failing to grant a mistrial sua sponte following this incident.
The second incident occurred at 4:05 p.m. on the third day of jury deliberations, shortly before the jury reported it had reached a partial verdict and was deadlocked on other counts. One of the jurors was employed in the courthouse. Familiar with a co-employee's voice, the clerk overheard a comment the juror made as she was passing the jury room and reported it to the court. The clerk was placed under oath and questioned in the presence of counsel. She testified she overheard juror number two say "she can find out if the defendant is in jail tomorrow. If not tomorrow, she'll know definitely by Monday." The clerk testified she heard no response to that statement. She also heard the juror say, "there's a difference between county and prison[,]" but again, heard no response from the other jurors. Upon questioning by the court, the clerk stated that the alternate jurors did not appear to hear these statements. She described the juror's voice as "very loud [but] wouldn't say she was yelling and angry."
Defendant moved for a mistrial. The judge denied the motion, and found that questioning the deliberating jurors about a comment involving a future act would "invade the province of the jury." At 4:23 p.m., the jury sent a note indicating that they were "still deadlocked," and then returned a partial verdict. Immediately following the verdict, defendant was tried before the same jury, without objection, on the certain persons charge (count nine), and convicted.
After the verdict, defense counsel asked the judge to question juror number two, and again moved for a mistrial. The court denied the motion, stating:
We have a statement that was a prospective statement . . . [and] a verdict [was] returned shortly thereafter. We know . . . that no action could have been taken because the jury was sequestered in the jury room and brought into the courtroom.
I think if we start asking questions about what might have happened or could have happened or would have happened, we are invading the province of the jury in their deliberations.
. . . I don't think there's anything in the verdict returned that would indicate to me there was any improper actions on the part of the jury.
"The grant of a mistrial is an extraordinary remedy to be exercised only when necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). Therefore, we should not reverse a trial court's denial of a mistrial motion absent a "clear showing" that "the defendant suffered actual harm" or that the court otherwise "abused its discretion." State v. LaBrutto, 114 N.J. 187, 207 (1989).
The first instance complained of by defendant fails to reflect any "clear showing" that "defendant suffered actual harm." Ibid. Viewing the event most favorably to defendant's argument, it could be speculated that the juror's familiarity with a murder victim's family might influence her to convict defendant on the murder charge. However, such speculative harm was not realized since defendant was acquitted on that count. The trial judge acted appropriately in exercising his discretion, questioning the jurors and soliciting comments from counsel. There was no error in failing to declare a mistrial, let alone plain error, R. 2:10-2.
Defendant's argument regarding the second instance complained of implicates the integrity of the deliberation process. "A defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007); State v. R.D., 169 N.J. 551, 557 (2001) (internal quotation marks omitted) ("The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to . . . trial by an impartial jury."). "That constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." Ibid.
When there has been an allegation of outside influence on jurors, the court has an independent duty "to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." Id. at 558; see Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 1:16-1 (2014). "'[T]he test for determining whether a new trial will be granted because [of juror misconduct] or the intrusion of irregular influences is whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs.'" State v. Jenkins, 182 N.J. 112, 131 (2004) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).
In this case, the trial judge acted promptly to investigate the nature of the suspected improper conduct. The clerk was placed under oath and questioned in the presence of counsel. The trial judge ascertained that the juror had merely offered to take action, following that day's deliberations, to obtain extraneous information. There was no indication that any extraneous information was considered or in the jury's possession during deliberations. The trial judge's reasoning was confirmed by the fact that the jury returned its verdict within minutes thereafter. Since the record supports the conclusion that no extraneous information tainted the verdict, no further action was necessary and the trial court did not err in denying defendant the extraordinary remedy of a mistrial.
The court also was justified in denying defendant's request that the jury be questioned after returning its verdict. Pursuant to Rule 1:16-1, jurors are not to be questioned without "good cause shown." To constitute good cause that would justify intrusion into the deliberation process, there must be "some event or occurrence injected into the deliberations in which the capacity for prejudice inheres[,]" such as "information, whether true or false, which is communicated by an outsider to the jurors or by one juror to others or is otherwise injected into jury deliberations and which is both extraneous to the proofs and sufficiently prejudicial to require a new trial or mistrial if injected into the proofs." Pressler & Verniero, supra, comment 1.2 on R. 1:16-1; see also State v. Loftin, 146 N.J. 295, 381 (1996); State v. Kociolek, 20 N.J. 92, 94-95 (1955) (disclosure of other pending charges against defendant was determinative factor in reaching unanimous verdict); State v. Weiler, 211 N.J. Super. 602, 611 (App. Div.) (defendant's conviction reversed where a sheriff's officer expressed her personal knowledge of the defendant's guilt), certif. denied, 107 N.J. 37 (1986).
Although it was plainly improper for the juror to offer to obtain information as to whether defendant was incarcerated, there is no evidence that any extraneous information was provided to the jury or tainted their deliberations. Further, the timing of the verdict is persuasive evidence of that conclusion. Therefore, the trial judge did not abuse his discretion in denying the defense request that the jurors be questioned following the verdict.
IV.
On the night Dewey was shot, defendant admitted to the victim's family that he had been with Willis in the automobile associated with the shooting earlier in the day, but stated he had nothing to do with the robbery. He repeated this version of events to the police when he agreed to speak to police in a supermarket parking lot. On a later date, he agreed to accompany officers to the police station, where he was advised of his Miranda rights. After initially maintaining his non- involvement, defendant subsequently admitted he was present, knew the others were armed, and intended to rob Dewey.
In Point III, defendant challenges the trial court's denial of his motion to suppress this statement. He contends that the detectives did not cease questioning him after he twice asserted his right to counsel and that, therefore, the State failed to prove beyond a reasonable doubt that he made a valid waiver of his constitutionally protected right to counsel. He claims he made two separate requests for counsel that were unheeded. Again, we disagree.
The transcript of the interview reflects that Moten advised defendant of his Miranda rights before there was any questioning. Defendant responded affirmatively that he understood each of the rights. Moten asked defendant whether he was "willing to answer" their questions and defendant responded "Yea. I wanna answer your questions." Defendant asked, "So what does this mean from here?" Moten explained they had to first finish the Miranda form, and instructed defendant to write the word "yes" next to each "X" on the form, and then to sign it. Defendant asked:
[Defendant]: Alright. So, can I git [sic] an attorney? I mean.
[Moten]: Do you think you need an attorney?
[Defendant]: No.
[Moten]: No? Okay then.
Moten, who was the only witness at the Miranda hearing, testified as to his understanding of defendant's question regarding a lawyer:
Well, it wasn't . . . a response where, I don't want to talk to you . . . I want a lawyer present, it was he's asking me, do I need a lawyer? He's inquiring, do I need a lawyer? My response to him was, well, do you think you need a lawyer?Moten stated that defendant showed no hesitation in answering that he did not need a lawyer. Moten also testified that after making this inquiry, defendant wrote the word "yes," indicating that he had waived that right and then signed the form. Moten said that if defendant had wanted an attorney, he "[a]bsolutely" would have "gotten one."
Noting that defendant had prior convictions and was cooperative, Moten stated defendant then gave a lengthy, approximately sixty-to-ninety-minute statement. The tape was played during the Miranda hearing. Toward the end of the statement, after Moten told defendant that he wanted to "clarify" one of defendant's responses for the Prosecutor's Office, this colloquy followed:
[DEFENDANT]: I'm gonna need a lawyer man. Gonna need a lawyer. Lawyer. For what I'm gonna do. I'm done, man. I didn't even do nothing and I'm done. Fucken with some
other mothafuckers. I'm going to jail tonight. It's not good man. It's not good man.
[TORRES]: Are you asking us if you need a lawyer?
[DEFENDANT]: Yea.
[TORRES]: That's . . . your decision if you need a lawyer or not.
[MOTEN]: That's . . . your decision really. That's your decision. You have every right to request. . . .
[DEFENDANT]: I didn't even do nothing.
[MOTEN]: I hear you. . . .
[DEFENDANT]: But you, being a man, I am goin ta [sic] jail tonight.
[MOTEN]: [I]'m gonna be honest with you. You've not been charged as of yet. And that's why I came back in here because I wanna clarify with my supervisors you know exactly why you didn't do A, B, or C.
[DEFENDANT]: Okay.
. . . .
[MOTEN]: You feel me? Now, the choice is yours. . . . I had a few more questions because I wanna clear those up.
[DEFENDANT]: Okay.
[MOTEN]: But the choice is yours. You understand [what] I'm sayin? You have every right . . . to request a lawyer.
[DEFENDANT]: Okay.
[MOTEN]: So are you . . . sayin we're done or you sayin you don't want . . . those remaining questions that I have or . . . I'm done. I'd rather just talk [to] my lawyer. You understand what I'm sayin?
[DEFENDANT]: Not really. But I might have to talk to a lawyer anyway because you know this is a serious charge.
[MOTEN]: You've not been charged.
[DEFENDANT]: Yea. But I know this is a serious situation here.
[MOTEN]: It's, it is a serious situation.
[DEFENDANT]: If you were me, you would talk to a lawyer?
[MOTEN]: But I'm . . . not you though. I'm not you. You know I'm sayin?
[DEFENDANT]: It's crazy.
[MOTEN]: Alright.
[DEFENDANT]: Um.
[MOTEN]: Need some, you want something to drink?
[DEFENDANT]: Nah. I'm good. You can ask your questions. I just wanna get this over with man.
[MOTEN]: Listen . . . I can't ask a question . . . if you just said you want your lawyer. Now you know is . . . what you're telling me is that you . . . wanna finish it. Or we're done. And . . . you have that right. Now you're saying . . . continue asking the questions.
[DEFENDANT]: No. I mean you say you have questions to ask me. Ask your questions.
[MOTEN]: I can ask a few remaining questions without your lawyer here? Is that what you're telling me?
[TORRES]: We wanna be clear that we're not violating your rights. Once you said that do I need a lawyer, you're asking us a question that we can't answer for you. Only you can answer that question. Now you're saying we can continue to talk to you without a lawyer present. Which is it? Do you want us to continue to ask you questions without a lawyer?
[DEFENDANT]: I mean yea you can ask me questions but eventually I'm gonna need a lawyer. You know what I'm saying? I gonna have to.
[MOTEN]: [I] don't think he understands.
. . . .
[DEFENDANT]: No I do. I understand. I understand. I understand. I understand.
[MOTEN]: [Y]ou know that's your right and we don't . . . wanna violate that. You understand what I'm saying? You just told me I think I need a lawyer. So, if you feel as though you need a lawyer, you don't wanna talk to us anymore just as . . . rights of form.
[DEFENDANT]: No. But like I said I'm more, more than willing to answer your question. Like the previous questions you asked me so far, I, I will answer your questions.
Moten testified that once he clarified that defendant meant he would need an attorney sometime in the future, but would be willing to answer their questions without an attorney, he asked defendant just a few additional questions, and then concluded the interview.
The judge denied defendant's motion to suppress the statement and found the statement was made "knowingly" and "voluntarily." The judge found that defendant had asked a question regarding representation, and had not made an "emphatic, declarative statement" that he needed an attorney.
The scope of appellate review of a motion judge's findings in a suppression hearing is limited. State v. Robinson, 200 N.J. 1, 15 (2009). An appellate court "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks omitted). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
It is well established that "once a suspect in custody invokes his right to counsel, the interrogation 'must cease,' and 'the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.'" State v. Wessells, 209 N.J. 395, 402 (2012) (quoting Miranda, supra, 384 U.S. at 474, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723). "[A] suspect who has invoked his or her right to counsel 'is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.'" Id. at 403 (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L . Ed. 2d 378, 386 (1981)).
To determine whether a suspect has invoked his or her right to counsel, we consider the "totality of the circumstances," focusing on "the reasonable interpretation of defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 564 (2011). The invocation of the right to counsel "need not be articulate, clear, or explicit . . . any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Alston, 204 N.J. 614, 622 (2011) (quoting State v. Reed, 133 N.J. 237, 253 (1993)); see also State v. Wright, 97 N.J. 113, 119 (1984). However, when a suspect's words are ambiguous, police are permitted "to follow up by asking questions that are designed to clarify the meaning of those words." Alston, supra, 204 N.J. at 623.
Alston presented facts similar to those here. The suspect asked the detective "[s]hould I not have a lawyer in here with me[,]" the detective responded "[y]ou want a lawyer[,]" and defendant said, "No, I am asking you guys man." Id. at 618. The Court found the suspect's statement
was, in actuality, not an assertion of a right, ambiguous or otherwise. Rather, it was a question, posed to the investigating officer, that amounted to defendant's request for advice about what the detective thought that defendant should do. The response of the officer, which was entirely appropriate under the circumstances, was a simple request for clarification, in which he asked "[do y]ou want a lawyer?"
[Id. at 626.]
Similarly in State v. Messino, 378 N.J. Super. 559 (App. Div.), certif. denied, 185 N.J. 297 (2005), the suspect asked the officer, "[d]o you think I need a lawyer?" Id. at 573. The officer replied that it was his responsibility to tell the suspect that he had a right to a lawyer, but "that was his call." Ibid. The Appellate Division found that the statement "was not a request for an attorney." Id. at 578.
From the outset, defendant expressed his desire to answer questions and repeatedly stated his willingness to do so. The trial judge found that defendant's references to counsel were "a question and not a[n] emphatic, declarative statement that I need an attorney." We agree.
Neither inquiry constituted an assertion of the right to counsel, but rather was a request for advice. Alston, supra, 204 N.J. at 626. Further, defendant's responses confirmed he was not asking for an attorney, but rather said he would need counsel in the future if he was charged with a serious offense. And, he expressly waived that right when he said he was "more than willing" to continue answering the detectives' questions. We therefore find no error in the denial of defendant's suppression motion.
V.
During the course of his direct examination, Coombs testified, without objection, that Moore called him and said, "yo, I need you to do something with me." Coombs stated it was his understanding that Moore wanted him to do a "job" or a "mission." Coombs also testified that while the four men were driving around in the Grand Prix, someone in the car said, "yo, we need to get money," which Coombs understood meant that they needed to rob someone. Again, there was no objection.
The first of these statements was made when Moore first contacted Coombs on the day of the shooting, before the two of them got into the car with defendant and Willis. The statement makes no mention of defendant or indeed, that anyone other than Moore and Coombs would engage in a "mission." Coombs was unable to identify precisely who in the car said, "yo, we need to get money." Without providing any evidentiary support, defendant now contends the statement was made by Moore.
In Point V, defendant argues the court committed plain error in admitting this evidence, which he characterizes as testimonial hearsay statements by Willis and Moore, and that, as a result, his Sixth Amendment right to confrontation was violated. See Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We disagree.
Both the Sixth Amendment to the United States Constitution, U.S. Const. amend. VI, and the New Jersey Constitution, N.J. Const. art. I, ¶ 10, provide that an accused in a criminal prosecution has the right "to be confronted with the witnesses against him[.]" The Confrontation Clause prohibits the use of an out-of-court testimonial hearsay statement unless the person who made the statement is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination. State v. Cabbell, 207 N.J. 311, 329-30 (2011).
Pursuant to the co-conspirator exception to the hearsay rule, N.J.R.E. 803(b)(5), "statements made 'at the time the party and the declarant were participating in a plan to commit a crime' and 'made in furtherance of that plan,' are admissible in evidence against another member of the conspiracy." State v. Savage, 172 N.J. 374, 402 (2002) (quoting N.J.R.E. 803(b)(5)). When a statement is admissible pursuant to the co-conspirator exception to the hearsay rule, a defendant's Sixth Amendment confrontation right is not violated. Bourjaily v. United States, 483 U.S. 171, 183-84, 107 S. Ct. 2775, 2783, 97 L. Ed. 2d 144, 158 (1987); Savage, supra, 172 N.J. at 402.
To qualify for admission under the exception, the State must meet the following conditions: "(1) the statement must have been made in furtherance of the conspiracy; (2) the statement must have been made during the course of the conspiracy; and (3) there must be 'evidence, independent of the hearsay, of the existence of the conspiracy and defendant's relationship to it.'" Ibid. (quoting State v. Phelps, 96 N.J. 500, 509-10 (1984)).
It is evident that the statement made by one of the four men in the automobile, "yo, we need to get money," satisfied these criteria. The statement was made while the four were driving around, a preliminary comment that led to their selection of a victim and implementation of their plan to commit a robbery. By his own admission, defendant was present, knew his co-defendants planned to commit a robbery, were armed, and planned to use force if necessary. See id. at 404 (defendant's out-of-court statement constituted independent evidence of a conspiracy). Moreover, Coombs testified that, during the course of the discussion regarding a potential target, defendant asked him if he "had anybody to rob," and that he replied, "No." This evidence established that defendant was a participant in the plans and not merely present. The statement was, therefore, admissible under the co-conspirator exception.
However, it is unclear from the record that Moore's statement to Coombs, "yo, I need you to do something with me[,]" was "made at the time the party and the declarant were participating in a plan to commit a crime[.]" Because there was no objection to this testimony, the trial court was not required to conduct a Rule 104 hearing sua sponte, see Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 104 (2013); Harvey, supra, 151 N.J. at 195, and so we are unable to state with certainty that this statement fell within the exception created by N.J.R.E. 803(b)(5). However, we note that the statement did not directly implicate defendant and, even if it did not fall within any exception to the hearsay rule, its admission was harmless. See R. 2:10-2.
VI.
In Point VIII, defendant argues that the court erred in admitting gang-related expert testimony from Hampton and lay testimony from Coombs. No evidence was presented that defendant was a member of the Bloods. In his statement to police, he admitted knowing that Willis and Moore were members of the Bloods but denied membership. This was corroborated by Coombs. Defendant argues that, because defendant was not a member of the Bloods, the testimony from Coombs and Hampton regarding the origin, practices, and behavior of the Bloods should have been excluded under N.J.R.E. 404(b). We disagree.
Prior to trial, the State moved to admit gang-related testimony from Coombs and Hampton under N.J.R.E. 404(b). Defense counsel objected, arguing the evidence was not relevant because defendant was not a member of the Bloods, and that it was "extremely prejudicial." In lieu of conducting a hearing, the motion judge reviewed sworn statements by defendant, Coombs, Willis, Morris, and Molyneaux and heard oral argument.
The State argued that, during the course of the discussions planning the robbery, the participants used "Blood language" that had to be explained so the jury would understand there was no mistake that a robbery was being planned. In addition, the prosecutor said the State's theory was that, although he was not a member of the Bloods, defendant was present and participated that day, like Coombs, for the purpose of ingratiating himself with the Bloods organization. He said that defendant's actions in not disclosing information about the shooting to Dewey's family at the hospital and alerting Willis, a senior Bloods member, that the family knew of his involvement, were consistent with Bloods protocol and reflected his intention to win approval from the group.
The motion judge did not explicitly conduct an analysis of this evidence pursuant to State v. Cofield, 127 N.J. 328, 338 (1992). The judge acknowledged that evidence suggesting defendant was part of a Bloods organization was "extremely prejudicial" and that he was obliged to weigh the probative value of the evidence against the prejudice to the defendant. The judge agreed with the prosecutor's argument and stated that the evidence was probative of "plan, intent, motive or absence of mistake" because, as to the conduct of the four in the car, the evidence provided an understanding of how a member or prospective member of the gang would act. Therefore, the judge granted the State's motion.
The decision whether to admit the gang-related evidence was governed by N.J.R.E. 404(b) and required a Cofield analysis. State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011 ). Because the motion judge failed to employ the Cofield test to analyze the admissibility of the gang-related evidence, "no deference is to be accorded the trial court's decision to admit that evidence; nor is that decision entitled to be reviewed under an abuse of discretion standard." State v. Reddish, 181 N.J. 553, 609 (2004) (quoting State v. Darby, 174 N.J. 509, 518 (2002)). We must, therefore, conduct a plenary review of whether the other-crimes evidence was admissible, ibid., guided by the four-part Cofield test:
We note that the State's motion to introduce this evidence was decided in October 2007, approximately three years before we held that the Cofield analysis was applicable.
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338.]
To satisfy the first prong, the evidence must have "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." State v. Rose, 206 N.J. 141, 160 (2011) (quoting N.J.R.E. 401). The State's proffered evidence must be "relevant to a material issue genuinely in dispute." State v. Gillispie, 208 N.J. 59, 86 (2011) (quoting Darby, supra, 174 N.J. at 519); see also Goodman, supra, 415 N.J. Super. at 227-29 (gang membership admissible to prove motive).
A central issue in the case was whether defendant was a knowing participant in the robbery plan. Defendant repeatedly denied any involvement. However, the testimony provided by Hampton and Coombs provided a lens through which his conduct could be understood to be complicit in the crime. Coombs explained that he was recruited for a "mission" by Moore. He stated further that although non-Bloods like defendant were usually not included in such missions, they would be used as back-ups for missions. To determine whether defendant was a knowing participant in the robbery, it was critical for the jury to comprehend the slang terms used by Willis, Moore and Coombs in the car, such as "we gotta eat." In denying his knowing participation, defendant claimed he did not think the others would rob Dewey because they were just "joken type dudes." However, defendant's description of the conversation in the car included the following:
It was, I'm tryin tell you they was just basically talkin about you know we need a sting, we need, we gotta eat. . . . You know talkin they language, blood thing[.]In the absence of a translation, "we gotta eat" is entirely innocuous. The translation of the Blood language defendant stated was used was not only relevant but critical to an understanding of what was actually being discussed in the car and what defendant knew about the planned robbery.
[(Emphasis added).]
Although defendant now argues that the language was "hood" language rather than Blood language, the citation reference he provides only supports the conclusion that "stick" is "hood" language.
--------
In addition, Coombs described the structured hierarchy of the organization and the fealty owed to superiors in the organization. For example, he stated he was obliged to keep the gun Willis tossed to him because Willis, a higher-ranking member of the Bloods, told him to take it. The evidence regarding Blood culture was helpful in interpreting defendant's otherwise puzzling conduct in withholding information regarding the shooting from Dewey's family members at the hospital and subsequent call to Willis to alert him that he had been implicated. Hampton's expert testimony regarding the hierarchy of the Bloods, the language used by its members, and the code of conduct, was similarly relevant to assist the jury in understanding both the plan and the language used by defendant and Coombs. We are therefore satisfied that the evidence regarding the Blood connection to the crime was relevant to a material factor.
The second prong of the Cofield test is not given "universal application," and "is limited to cases that replicate the circumstances in Cofield." State v. Williams, 190 N.J. 114, 131 (2007). In Cofield, supra, the State sought to introduce evidence of other crimes similar and close-in-time as relevant to prove the defendant's possession of drugs in the charged offense. 127 N.J. at 330. Because the facts in this case do not "replicate" Cofield, this prong is not applicable.
Under the third prong, "the trial court must determine that proof of the other-crimes evidence is established clearly and convincingly." Gillispie, supra, 208 N.J. at 89. The fact that Willis, Moore, and Coombs were members of the Bloods was undisputed and established by defendant's own statement to the police as well as by Coombs's testimony. In addition, the testimony given by Coombs and Hampton provided clear and convincing evidence as to the hierarchy and code of conduct of the Bloods.
The fourth prong, "whether the probative value of the evidence is outweighed by its apparent prejudice, is generally the most difficult part of the test." State v. Barden, 195 N.J. 375, 389 (2008). Under this prong, "the trial court must engage in a 'careful and pragmatic evaluation' of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice." Ibid. (quoting State v. Stevens, 115 N.J. 289, 303 (1989)).
As the motion judge acknowledged, there was inherent prejudice in presenting evidence to the jury that the offense here was gang-related. However, the probative value of this evidence must be assessed in light of defendant's assertion that he had no knowledge or involvement in the robbery. The language used to plan the robbery was Blood slang and the conduct of the participants was consistent with the Blood hierarchy and code of conduct. The probative value of the facts that defendant understood the language and acted in conformity with the code of conduct, as evidence of his knowing participation, would be substantially diminished if the Blood context was not provided to the jury. Therefore, the prejudice inherent in the gang-related testimony was outweighed by the probative value of explaining defendant's knowledge of the plan, the gang-related relationship between the co-defendants, the language used by defendant in his statement, and why the robbery was structured in accordance with the plan. See Goodman, supra, 415 N.J. Super. at 230 (probative value of gang-related evidence outweighed prejudicial effect).
As all of the applicable Cofield prongs are satisfied, there was no error in admitting this testimony. Moreover, the judge gave a limiting instruction, which provided appropriate guidance to the jury as to the permitted use of this evidence and minimized potential prejudice to defendant.
VII.
In Point VI, defendant argues that leading questions and improper comments by the prosecutor in summation deprived him of a fair trial. This argument lacks merit.
Defendant argues that the prosecutor committed misconduct in posing leading questions during direct examination to four of the State's witnesses: Keith James, a Crime Scene Unit officer; Beth Mills, the manager of the apartment complex; Molyneaux; and Coombs.
"Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony." N.J.R.E. 611(c); see State v. Cullen, 103 N.J. Super. 360, 365 (App. Div. 1968). Nonetheless, "preliminary inquiries of the witness and questions about matters that are not in controversy may be made in leading form." Biunno, Weissbard & Zegas, supra, comment 8 on N.J.R.E. 611. The leading questions to James and Mills clearly fall within this category, rendering them harmless. Moreover, since there was no objection to the questions to James and Mills now complained of, we review defendant's claim for plain error, R. 2:10-2, and find none.
Defense counsel did object to a question posed to Molyneaux, which was sustained by the court. During the direct examination of Coombs, defense counsel objected when the prosecutor asked whether there had been any discussion about other targets of the robbery. Counsel objected. The court overruled the objection and found that the questions were not leading. We agree.
However, recognizing the difficulty in questioning Coombs because he generally gave "one word responses," the judge cautioned the prosecutor, stating, "in rephrasing the questions, in some instances you are almost testifying and trying to give the definition which may or may not be something you could elicit from the witness." The prosecutor said, "I'll try." When the prosecutor later asked Coombs a leading question, defense counsel objected and the objection was sustained by the court. The trial judge did not abuse his discretion in ruling on counsel's objections to the leading questions.
Defendant also argues that the effect of comments made by the prosecutor in summation were "burden-shifting" and improperly appealed to the jurors' emotions. The prosecutor referenced the renunciation defense to conspiracy, arguing that defendant claimed
he attempted to renounce his involvement in the crime after he learned the target was Dewey. . . . To legally escape responsibility through renunciation you have to have certain requirements. . . . For a co-conspirator, which he was, . . . [the]Defense counsel objected on the basis that defendant had not raised renunciation as an affirmative defense. The prosecutor argued they had agreed that the State could "touch on it." The court allowed the prosecutor to briefly discuss renunciation.
law says defendant must notify authorities. Did he do that?
We find no abuse of discretion in this ruling. The prosecutor did not make any inaccurate or misleading statements regarding the applicable legal principles. His was a fair comment on the evidence before the jury as to whether it supported defendant's contention that he had abandoned the conspiracy after he learned Dewey would be the target. Moreover, the jury was repeatedly told that the State had the burden of proving each element beyond a reasonable doubt, that defendant had no duty to "prove his innocence or offer any proof related to his innocence," and was never told by the court or counsel that defendant had any burden of proof.
Finally, defendant argues the prosecutor committed misconduct in arguing, "don't discount the life of Dewey Marshall. Not that you would, but no one deserves to be robbed and murdered, taken away from their family for the sake of greed. Disregard for human life."
Although "[p]rosecutors are expected to make a vigorous and forceful closing argument to the jury and are afforded considerable leeway in that endeavor," State v. Jenewicz, 193 N.J. 440, 471 (2008) (internal citation omitted), they should refrain from appealing to jurors' emotions. State v. Blakney, 189 N.J. 88, 96 (2006). "[T]he standard for reversal based upon prosecutorial misconduct requires an evaluation of the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Nelson, 173 N.J. 417, 460 (2002). Prosecutorial misconduct is not grounds for reversal unless it was so egregious as to deprive the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
The impropriety of alluding to the value of human life here, where the victim was a drug dealer and perhaps less likely to inspire the sympathy of the jury, carries less potential harm than might otherwise be the case. We are confident that the isolated comment did not deprive defendant of a fair trial, particularly in light of the fact that defendant was acquitted of the murder charge.
VIII.
In Point VII, defendant argues that he is entitled to a judgment of acquittal or a new trial. He did not move for a new trial but, at the conclusion of the State's case, defendant moved for a judgment of acquittal on the murder charge (count one), that portion of count four that charged him with conspiracy to commit murder, and the possession of a weapon charge (count six). The court denied the motion as to counts one and six, but reserved on that portion of count four that charged conspiracy to commit murder. The jury found defendant guilty of conspiracy to commit robbery (count four), unlawful possession of a weapon (count six), and being a person prohibited from possessing a weapon (count nine). These arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
The thrust of defendant's argument on appeal is that his convictions are not supported by the evidence because Coombs was not a credible witness. The issue of Coombs's credibility was for the jury to decide. See State v. Garcia, 195 N.J. 192, 207 (2008) (stating that the jury is "the final arbiter of credibility"). Sufficient evidence was presented that, if accepted by the jury, supported each element of the crime of conspiracy to commit robbery, N.J.S.A. 2C:15-1, and the possession charges, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:39-7. The trial judge did not err in denying the motion for judgment of acquittal at the end of the State's case pursuant to Rule 3:18-1 or in failing to enter a judgment of acquittal sua sponte after the verdict pursuant to Rule 3:18-2.
IX.
In Point IV, defendant challenges his sentence as excessive. We disagree.
"Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). That standard is satisfied if the appellate court determines that: (1) the sentencing guidelines were violated; (2) the aggravating or mitigating factors were not based on competent credible evidence in the record; or (3) even if the court sentenced in accordance with the guidelines, the facts of the case made the sentence clearly unreasonable so as to shock the judicial conscience. State v. Hudson, 209 N.J. 513, 528 (2012); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Roth, 95 N.J. 334, 364 (1984).
The court sentenced defendant to: an eighteen-year term subject to NERA on count three (first-degree robbery), and a concurrent ten-year term on count nine (second-degree certain persons not to have a weapon), with a five-year period of parole ineligibility. Counts two, five, and seven were dismissed, count four merged into count three, and count six merged into count nine. The sentence imposed was, therefore, within the statutory range for first-degree offenses: ten to twenty years imprisonment. N.J.S.A. 2C:43-6(a)(1).
The trial court found no mitigating factors and three aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses of which he had been convicted, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court determined that the aggravating factors substantially outweighed the nonexistent mitigating factors.
Defendant does not dispute that there is an adequate factual basis for the aggravating factors found by the court. He argues, for the first time on appeal, that the court should have found four mitigating factors: N.J.S.A. 2C:44-1(b)(2), (8), (11), and (12).
However, the factors urged by defendant are not supported by the evidence. In pleading guilty to first-degree armed robbery, defendant admitted he knew his co-defendants were armed with guns and would use force if necessary to rob Dewey. Mitigating factor two, that "defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2), is therefore not applicable. Factor eight, that defendant's conduct was unlikely to recur, N.J.S.A. 2C:44-1(b)(8), is not supported because defendant's prior criminal record belies his contention that his conduct is unlikely to recur. There is no evidence that defendant had custody of or supported his dependent. Therefore, the record does not support application of mitigating factor eleven. See N.J.S.A. 2C:44-1(b)(11) ("The imprisonment of the defendant would entail excessive hardship to . . . his dependents."). Finally, defendant urges that mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12), should have been found by the court. This mitigating factor applies when a defendant has cooperated with law enforcement authorities, with or without a plea agreement. Dalziel, supra, 182 N.J. at 505-06. Although the State promised to advise the sentencing court in the event defendant cooperated in its prosecution of Moore, defendant provided no cooperation. In fact, in a letter to his attorney, he explicitly stated he would not testify against Moore. The fact that defendant made a statement admitting his guilt to first degree robbery does not warrant application of factor twelve. See State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008). Because the record before the court did not support any of the mitigating factors now urged, it was not error, let alone plain error, R. 2:10-2, for the court not to find them applicable to its sentencing decision.
X.
In Point IX, defendant contends he was denied the effective assistance of trial counsel. He cites the following alleged deficiencies in his counsel's performance: failure to request a N.J.R.E. 104 hearing to bar prejudicial testimony from Coombs; failure to object to hearsay statements in Coombs's testimony; inadequate consultation with defendant during critical stages of the proceedings; ineffective representation during plea negotiations; and ineffective argument at sentencing.
We decline to address this claim on direct appeal because consideration of these assertions would require evidence outside the trial record, making them "particularly suited for post-conviction review." State v. Preciose, 129 N.J. 451, 460 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION