Opinion
DOCKET NO. A-5424-11T2
02-22-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DONALD THOMAS, a/k/a D-BLOCK, DONALD THOMAS III, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General of New Jersey, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-12-1320. Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General of New Jersey, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Donald Thomas was charged in Passaic County Indictment No. 09-12-1320 with first-degree felony murder, N.J.S.A. 2C:11-3a(3) and N.J.S.A. 2C:2-6 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); first-degree robbery, N.J.S.A. 2C:15-1a(2) and N.J.S.A. 2C:2-6 (count four); third-degree violation of regulatory provision related to firearms, N.J.S.A. 2C:39-10e (count five); and second-degree certain persons not to have weapons, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:39-7b (count six). Two co-defendants, Mark A. Wilson and Givonni E. Butler, were charged in additional counts of the indictment and tried separately.
In substance, the State alleged that defendant, a ranking member of the Bloods street gang, ordered a juvenile gang member, D.S., to rob and shoot the victim, Lateef Ojoye. Following a jury trial, defendant was convicted of felony murder, robbery, possession of a weapon for an unlawful purpose, and violating the regulatory provision related to firearms. The court granted defendant's motion for a judgment of acquittal on count three, unlawful possession of a weapon. Count six, certain persons not to have weapons, was dismissed on motion of the State.
We use initials to protect the privacy of the witnesses.
On March 23, 2012, the court granted the State's motion for an extended term and sentenced defendant to a sixty-year prison term with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the felony murder charge. The court merged the remaining counts into the felony murder conviction.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN ALLOWING EXPERT TESTIMONY CONCERNING GANGS THAT WAS MERELY CUMULATIVE
POINT II
THE DEFENDANT WAS PREJUDICED BY THE STATE'S SURPRISE PRODUCTION OF TELEPHONE RECORDS AND TESTIMONY CONCERNING THEM, WHICH CONSTITUTED INADMISSIBLE HEARSAY, AND BY THE ADMISSION OF THOSE RECORDS WITHOUT EXPERT EXPLANATORY TESTIMONY
A. Admission of the Records Constituted a Discovery Violation
B. Expert Testimony Should Have Been Required To Interpret The Telephone Records
C. The Telephone Records Constitute Inadmissible Hearsay
POINT III
THE JURY INSTRUCTIONS AS TO GANG EVIDENCE AND [] A PRIOR BAD ACT WERE SO ONE-SIDED AS TO DENY DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW)
POINT IV
THE CONVICTION WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND XIV; N.J.
CONST. (1947), ART. 1, PARA. 10. (Not Raised Below)Having considered these arguments in light of the record and applicable standards, we affirm.
POINT V
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION
I.
The following are the most pertinent facts drawn from the trial record. During the evening of July 10, 2009, Ojoye sold drugs to "Neil" at "the hundred stairs" on Harrison Street in Passaic. Ojoye, along with his passenger, T.W., then drove to Pine Street, where they stayed in the car listening to the radio and drinking. According to T.W., "[a] kid" walked up to the car and knocked on the driver's side window. As Ojoye rolled down the window, the kid pointed back towards Harrison Street and T.W. and Ojoye turned to look in that direction. They saw no one there and when they turned back the kid "had a gun out on [them]." The kid said to "run it" or "[r]un your shit," which T.W. knew meant that they were getting robbed.
Ojoye and T.W. looked at each other and T.W. knew what Ojoye was going to do because he had always said "if somebody tried [to] rob him he was going to pull off." As Ojoye tried to "pull off," T.W. saw the shot flash and the kid flee. Ojoye began to drive away, stopped at the stop sign, and then turned left onto Summer Street before passing out. Ojoye subsequently died from the gunshot wound.
T.W. described "the kid" as around five feet seven inches tall, black-skinned, skinny, wearing a blue baseball hat and a red shirt. He "looked young," under twenty, and was nervous and "shaking the whole time." T.W. told police that he had seen the kid about a half hour earlier on Harrison Street with "D-block," who he identified in court as defendant. T.W. knew defendant since they were kids and they "hung out" together around Passaic.
On cross-examination, T.W. agreed that defendant and Ojoye would also "hang out" together at times and they were on "very friendly" terms with each other. Defendant's sister used to date Ojoye. T.W. had no reason to believe that defendant would "ever in a million years consider having [Ojoye] shot and killed" because they were friends. T.W. also stated that he and defendant had an argument in a bar a couple of weeks earlier, but it did not end their friendship and they saw each other the next day.
T.W. acknowledged that Ojoye was a drug dealer, but that he just sold "small amounts daily to sort of make a living." T.W. did not know how much money Ojoye had in his pockets that day because Ojoye would always "count his money under the table" for fear of being robbed.
Y.S., who lived on Pine Street, was outside on her porch around 10:30 p.m. and witnessed the shooting. She testified that she had never seen the shooter before. He came from the direction of Autumn Street and approached the car parked near her house. After the shot was fired, the car drove off towards Summer Street and the shooter ran back toward Autumn Street. Y.S. saw "a guy" waiting for the shooter near the stop sign looking in the direction of the car and then the two ran onto Autumn Street together. She did not observe the face of the man waiting by the stop sign and testified on cross-examination that she had never seen defendant before.
D.S. was fifteen years old at the time of the shooting and lived in Newark with his mother, E.W. A Passaic police officer told E.W. about the shooting shortly afterward, and E.W. later found out from family and friends that D.S. may have been involved. Then, after E.W. found a "black sock with a jewelry box inside with bullets" while cleaning her house, she confronted her son, who denied knowing anything about the shooting. E.W. did not believe him because he had lied to her in the past and would not tell her who the bullets belonged to. When police came to her house shortly after midnight, she gave them the bullets and brought D.S. to the Passaic Police Department the next day. D.S. was administered his Miranda warnings and then gave a video statement that was later played at trial.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
D.S., age seventeen at the time of the trial, testified that he joined the Bloods street gang when he was thirteen years old. He had to fight five people at the same time for thirty-one seconds in order to join. After he became a member, he learned that there were people who were his "superiors" and they were able to "send out orders" and he would have to do it. If you did not "follow orders," "[t]hey would do something to you probably," and he understood that "they probably will kill you."
In May and June 2009, D.S. went to Passaic to "chill, to hang out" with his brother, who was also a member of the Bloods. His brother introduced him to defendant, who he knew as D-Block. Defendant was introduced as "a big homey of [their] group," meaning he had "ranking" in the Bloods. D.S. began traveling to Passaic several times a week, where he would "hang" with his brother, defendant, Givonni Butler, known as "G," and Mark Wilson, known as "Slugs." All were part of the same subgroup within the Bloods gang.
D.S. testified that a few weeks before the shooting defendant had asked him to hold a nine millimeter gun for him "until he asked for it back." D.S. took the gun back to his house in Newark. On July 8, defendant said he needed the gun back and D.S. returned it to him.
D.S. testified that on July 10, he hung out by Lawrence's Bar on Main Avenue in Passaic, where defendant, Butler and Wilson joined him "[a]t night." He spent part of the time on his cell phone and also let Butler use his phone. At some point, defendant asked D.S. to go somewhere with him. D.S., defendant and Wilson then went "around the corner" and walked to the "dead-end of Harrison" by the "hundred stairs." Along the way, D.S. heard defendant's phone "bleep" and he recognized Butler's voice telling defendant "Lateef [Ojoye] is across the street from my house." D.S. did not know who Ojoye was. Defendant responded that he was "about to go up there right now." After the phone call, defendant told D.S. that they were "about to go up there and rob him" "for a chain and $1500."
According to D.S., defendant then handed him the gun and told him that "we was going [to] rob Lateef and if he had to pull off shoot." Wilson said "you already know what time it is, pow," which D.S. understood to mean that if he did not "do it he was going to probably kill [him]." D.S. "was shocked" and he also "got mad" because he didn't want to do it. He knew that if he failed to comply, "something was gonna happen."
D.S. and defendant then went up the hundred stairs and walked toward Pine Street. D.S. was wearing a red shirt, blue jeans, and black and red sneakers. Defendant stopped and put something over his face. D.S. continued walking and approached the driver's side of the car. He did not recognize either occupant. D.S. knocked on the window, and when Ojoye rolled it down D.S. told him "if you drive off I'm gonna shoot." D.S. also instructed Ojoye "to give me his money and his chain." When Ojoye attempted to drive off, D.S. shot him using the gun that defendant gave him.
D.S. testified that he pulled the trigger on purpose "because [he] was told to." Although he had earlier told the police that the safety was on and he did not think he could fire the gun, he admitted at trial that was a lie. Later, on redirect, he testified that the gun went off accidentally.
After the car drove away, D.S. walked back toward defendant and together they ran back up the hill and down the hundred stairs. D.S. returned the gun to defendant at defendant's request. D.S. got in Butler's car, changed into a white t-shirt that Butler gave him, and went back to Lawrence's Bar. He then went to Paterson with Butler and later took a taxi home to Newark.
D.S. testified that when he was first questioned by police, he denied being involved. He lied because he was scared "that something might happen" to him or his family if he mentioned defendant, Wilson, and Butler because they are all members of the Bloods. He decided to tell police what occurred because he "thought it was better for [him]," and he also realized that the detectives already "had some type of idea" what had happened so he needed to tell the truth.
On cross-examination, D.S. acknowledged that he knew the police wanted to "cut a deal" with him and that he didn't want to end up with a life sentence. He denied implicating defendant just to get a better deal and claimed not to recall making certain statements about the plan to rob Ojoye or about a fight between defendant and Ojoye a few days before the murder.
D.S. was originally charged with murder, robbery and weapons offenses for his role in the shooting. On September 16, 2010, he pled guilty to an amended charge of aggravated manslaughter and a weapons offense. The State agreed to recommend an aggregate twenty-year prison sentence subject to an eighty-five percent period of parole ineligibility under NERA. The judge indicated he would consider a lesser sentence of eighteen years. As a condition of the plea, D.S. agreed to testify truthfully against defendant, Wilson and Butler. At the time of trial he had not yet been sentenced.
Detective Sergeant Scott Heath, from the Homicide Unit of the Passaic County Prosecutor's Office, worked with the Passaic Police Department, specifically Detective John Rodriguez, on Ojoye's murder. Heath reviewed the video surveillance from Lawrence's Bar. Using pictures taken from the surveillance video, Heath identified defendant, Butler, Wilson and D.S.
Heath and Rodriguez spoke to defendant the day after the murder. Defendant came in voluntarily and agreed to waive his Miranda rights. A redacted version of his videotaped interview was played for the jury and Heath addressed certain events shown on the video. According to Heath, defendant denied that he was involved in the homicide. However, certain details defendant provided, such as whether he knew D.S., changed. Heath told defendant that they knew he was not "the shooter" but that he was "involved." Heath did not check the surveillance cameras for the areas where defendant claimed to be after the shooting. Rodriguez testified that the street cameras on Main and Summer streets were not working.
Police secured a warrant to search defendant's residence. They did not recover any firearms but found three cell phones -- two Motorolas and one Nokia -- and four cell phone chargers. The Nokia was old and non-operational. The two Motorolas were operational but were not attached to the phone numbers reported by D.S. or defendant. During his interview, defendant had stated he no longer had a cell phone. Police also recovered seventeen cell phones, some of which were "Boost" or prepaid phones that did not require a contract with a wireless carrier, from Butler's residence located near the crime scene.
At the end of his direct testimony, Heath stated that he had looked for records of a direct-connect phone call from D.S.'s phone to defendant just before the shooting and found two numbers were called "around that time period." The first call went to Wilson's direct-connect phone and the second went to a prepaid phone that "comes back to a shoe store in Passaic, fictitious name." When asked if there was anything else about the phone records that would be relevant, Heath said no but there were "some phone calls from that phone to the landline at [Butler's residence]," after the shooting.
There was no objection to the testimony about the cell phone records during direct examination. However, before the resumption of the trial the next day, defense counsel objected and the court conducted a brief hearing before continuing with cross-examination. --------
On cross-examination, Heath reiterated that D.S. had two cell phones on the night of the shooting, one of which he gave to Butler and never got back. Defense counsel asked Heath about the investigation into the two phone numbers D.S. gave as his numbers, and Heath agreed that there was "no connection" between those two numbers and defendant's phone number or the two Motorola phones recovered from defendant's residence.
Detective Nancy Petrara-Stafyleras (Stafyleras), with the Intelligence Unit of the Passaic County Prosecutor's Office, testified as an expert in the area of gang intelligence and gang culture. She was familiar with the Bloods and gave a short history of the "criminal street gang," including how it became the largest gang in New Jersey and on the East Coast. Stafyleras also described the various methods of discipline within the Bloods for not following orders, including "a buck fifty," where they discipline their own or rival members and "cut them from ear to ear, leave them with a scar on their face for [fifty] stitches to show they were disciplined." For a more serious infraction, a gang member will give an order through the hierarchy for another member to be killed if they were disloyal or "were not in good standing with the gang."
On cross-examination, Stafyleras conceded that there are "no uniform" rules or regulations that specify the type of discipline and that it was up to the hierarchy to decide. She also agreed that "the punishments range all the way from something as simple as getting verbally scolded, yelled at, all the way to something much more extreme."
II.
We first address the issue of Stafyleras's testimony. Defendant argues that it was error to allow the State to offer expert testimony "concerning the Bloods street gang" because it was "merely cumulative of the testimony given by the State's primary fact witness." Defendant further contends that the expert testimony bolstered the credibility of D.S., "ran afoul" of N.J.R.E. 404(b), and was "so prejudicial as to necessitate reversal." We disagree.
Prior to trial, the court held an N.J.R.E. 104 hearing to determine whether Stafyleras would be allowed to testify as an expert about gangs generally and the Bloods gang in particular, and about whether other gang-related evidence would be permitted. At the hearing, the State elicited the qualifications of Stafyleras and the specific contents of her proffered testimony; her report had previously been excluded. Defense counsel had the opportunity for cross-examination.
Relying on State v. Torres, 183 N.J. 554 (2005), as "right on point" and "clearly dispositive," the trial court ruled that Stafyleras would be permitted to testify as to "how gangs operate," "what happens when orders are given and that there might be punishment, et cetera." It found that the intended testimony concerned a subject matter that is beyond the ken of the average juror, the testimony was sufficiently reliable, and Stafyleras had sufficient expertise to offer the intended testimony.
The court also applied the four-prong test of State v. Cofield, 127 N.J. 328, 338 (1992), to the gang evidence in general. Under the first prong, it found the evidence "relevant to the material issue of the question why would someone do this." As to the second prong, the court found that the activity was reasonably close in time because defendant allegedly gave the gun to D.S. in early June and then the gun was returned to defendant and then given to D.S. again just before the early July shooting. The court determined these activities were "very similar in kind" because "[t]hey both involve the handling of a gun, the acceptance of a gun and doing something with a gun and understanding that it's being done as part of the gang relationship." The court also found the evidence met the clear and convincing test under the third prong, and that D.S. and Stafyleras were both credible and "crisp" in their answers.
As to the fourth prong, the court found the evidence "clearly highly probative" to explain the relationship or interaction between defendant and D.S. The evidence was prejudicial "[b]ut it must be understood that if these facts are correct, it was the defendant himself who brought about the prejudice." The court concluded that the probative value "clearly" outweighed the prejudicial effect and therefore the evidence was admissible under N.J.R.E. 404(b) "for the limited purpose of allowing the jurors to assess the state of mind, the motive, [and] the intent of both" defendant and D.S.
We review a trial court's decision to admit or exclude expert testimony for an abuse of discretion. Torres, supra, 183 N.J. at 567. An appellate court should only disturb the trial court's evidentiary decisions when it commits "a clear error of judgment." State v. Marrero, 148 N.J. 469, 483 (1997).
In Torres, supra, 183 N.J. at 573, the State presented expert testimony concerning the operations and structure of a Latino street gang to show the leader's actions as an alleged accomplice and co-conspirator in the murder of a gang member. The Court concluded that such evidence was relevant to show the connection between the defendant's actions as the gang's leader, and the actions of other members who actually committed the murder. Ibid. It explained that the expert opinion provided "a coherent assessment of the structure, operations, and disciplinary rules" of the gang, which gave the jury a context to evaluate the defendant's statement and the testimony of a former gang member. Id. at 579.
Notwithstanding the relevance of the evidence, a trial court must carefully weigh expert testimony to determine whether it may be unduly prejudicial. Id. at 580. The balancing test of N.J.R.E. 403 requires the State to establish that the probative value of the evidence is not outweighed by its apparent prejudice. State v. Long, 173 N.J. 138, 161 (2002).
In the present case, relying on Torres, the trial court properly ruled that the gang-related testimony was relevant to show not only D.S.'s state of mind and intent, but also defendant's motive, intent and state of mind, and to explain why defendant would "take the liberty of directing [D.S.]" to commit this crime. The trial court also conducted a proper N.J.R.E. 404(b) analysis, and its determination to admit the evidence is entitled to "great deference." State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). "Only where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed." Marrero, supra, 148 N.J. at 483 (quoting State v. DiFrisco, 137 N.J. 434, 496-97 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).
Moreover, not only was the jury instructed on the limited use of the N.J.R.E. 404(b) evidence, it was also screened during voir dire about the allegations of gang membership to ensure that prospective jurors who found such information prejudicial would be excused. On this record, we find no basis to disturb the trial court's decision to admit the gang-related expert testimony.
III.
In Point II of his brief, defendant argues that he was prejudiced by the "surprise production of telephone records and testimony concerning them" during the trial. He also claims that the testimony was inadmissible hearsay, and that an expert was required to explain the discovery that was presented "in an essentially unrecognizable form."
The entire sum of the challenged testimony occurred during Heath's direct examination and included only a few questions. When the prosecutor asked Heath at the end of direct examination what he learned from the cell phone records, the following colloquy took place:
A. Essentially, the -- there was a direct-connect call that we were seeking that would have happened just prior to the shooting from the boost phone that [D.S.] initially had to [defendant].
In that time period from that phone there were two different numbers called around that time period [sic]. The first comes back to Mark Wilson's direct-connect
phone and the second is a prepaid phone that comes back to a shoe store in Passaic, fictitious name.
There's some other information that came out in the phone records as well.
Q. Anything else about the phone records that you felt would be relevant?
A. No, just that there was some phone calls from the phone I just described, the Nextel phone, the prepaid -- [D.S.]'s prepaid phone to some -- to another phone that [D.S.] had earlier and also some phone calls from that phone to the landline at [Butler's residence]; but that would be after the shooting.
Defense counsel originally did not object. However, before trial resumed the next day, defense counsel objected to the introduction of the phone calls linking defendant, Wilson and D.S. because it was "a surprise," there had been no report of it in discovery and no foundation laid for the introduction of it. Defense counsel also argued that the information, or "the opinion that Detective Heath offered as to the link between the phone was based upon hearsay information that he had received about the cell phone number of Mark Wilson and the hearsay information he had received from the phone companies." He claimed that he had received the spreadsheets, or "raw data" from the phone companies in discovery but had never received a report or analysis from that raw data.
Rule 3:13-3(b)(1) requires the State to provide a defendant with a wide range of relevant material in advance of trial. Here, there is no dispute that the phone records testified to by Heath were provided to defendant in discovery. Defense counsel had the opportunity to review those records and conduct his own analysis prior to trial. Accordingly, defendant's claim that counsel was unfairly surprised by Heath's testimony concerning the records lacks merit. Moreover, the trial court did not find, nor does defendant even suggest, that there was any intent to mislead by failing to give advance notice of Heath's findings. See Pressler & Verniero, Current N.J. Court Rules, Comment to R. 3:13-3 (2016) ("An inadvertent prosecutorial error in withholding discovery will not, if harmless, result in penalty or impugn the validity of the conviction.").
The trial court also properly rejected defendant's argument that the State should have produced an expert report from Heath explaining his analysis of the phone records. The court reasoned:
I don't think that this testimony is expert testimony. I think it's a matter of looking at numerical data, linking it up and indicating that . . . this phone record shows that a call was made from phone A to phone B at a particular time. I don't think that requires any kind of specialized training or knowledge or is beyond the ability of anyone to figure out.
We agree that there is nothing technical about matching up the phone numbers that appear in the records, as Heath essentially did here. In short, Heath's factual observations did not intrude into an area that was "so outside the ken of jurors that they need an expert" to explain them. See State v. McLean, 205 N.J. 438, 460 (2011).
The trial court also found "no hearsay problem with Mark Wilson's indication to the police that this was his phone number." The court "almost analogized this to pedigree information, which is not hearsay" because of the present day proliferation of cell phones. The number was also "internally corroborated, because the phone company gives it a number that shows that the number he gave was an accurate number."
"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Defendant contends that the information from Wilson does not fall into any of the hearsay exceptions and therefore the admission of the phone records was "erroneous, and highly prejudicial." The State responds that the evidence was not offered for the truth of the matter asserted. Rather, the State contends that it was offered only "to show how the investigation into Ojoye's death proceeded" and to "deflect any potential defense attack concerning the phone calls."
We agree with defendant's contention that the information obtained from Wilson is hearsay and does not fall within any recognized exception to the hearsay rule. However, we disagree that the challenged testimony was prejudicial. As noted, the police were attempting to locate a call between D.S's phone and defendant, as reported by D.S. In his limited testimony, Heath was unable to verify such call. Accordingly, we regard any error in the admission of the testimony as harmless. See State v. Castagna, 187 N.J. 293, 312 (2006) (holding that an appellate court will disregard "[a]ny error or omission [by the trial court] . . . unless it is of such a nature as to have been clearly capable of producing an unjust result") (alterations in original).
IV.
For the first time on appeal, defendant objects to two limiting instructions given by the court dealing with D.S.'s testimony about gang membership and the gun he claimed defendant gave to him. Defendant argues that the instructions "constituted a judicially-sanctioned outline of the key threads of the State's case" and did not present an "evenhanded" picture of both sides.
To place defendant's argument in context, we review in detail the limiting instructions given by the trial court during and at the close of trial. Notably, the court instructed the jury as to the limited use of the gang membership evidence following the model charge verbatim. See Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs or Acts, N.J.R.E. 404(b)" (2007). In the section of the model charge that calls for the court to "[d]escribe the limited purpose, relevant to a genuine, disputed issue, for which the evidence has been introduced, and explain specifically how that limited purpose relates to the facts of the case," the court stated:
This evidence was permitted for the limited purpose of demonstrating the state of mind of [D.S.] and/or [defendant], on or before July 10, 2009, as it relates to a possible motive for the alleged crimes. More specifically, the State alleges that the gang membership when measured against how gangs operate, . . . and the conduct and activities that gangs involve in, including criminal activity, may explain why [defendant] would ask [D.S.] to commit a crime against another individual and why [D.S.] might carry that request out.
The State alleges that the gang membership motivated the defendant to ask [D.S.] to do certain things and that it motivated [D.S] to do the things he was asked to do.
Shortly thereafter, when D.S. testified that defendant gave him the gun to hold, the court interrupted with a "follow-up" or "second prong" to the instruction. The court explained that the last instruction would also apply to the evidence the State presented that defendant allegedly possessed a gun and gave it to D.S. to hold for him. The court continued:
Normally that type of evidence wouldn't be permitted under our rules. However, it can be admitted if it's admitted for a specific limited purpose.
This evidence about this incident that you just heard about where he was, [D.S.] was allegedly asked to hold the handgun, was admitted for the limited purpose of demonstrating a possible explanation for why [defendant] would trust [D.S.] to commit a crime at his request on July 10, 2009. That's the State['s] theory.
The State alleges that this incident was designed by [defendant] as a test to see if he could trust [D.S.] and to see if he, [D.S.], would follow [defendant's] instructions.
Therefore, it was admitted to demonstrate, again, the mindsets or the states of mind of both [defendant] and [D.S.] on both dates, that meaning the date of the holding of the gun, that if you find it to even be so, and also what occurred, allegedly, on July 10th.
Again, this evidence was admitted for a limited purpose. I will explain it to you again in more detail at the end of the case but I have to explain to you as I just did that you're not allowed to in any way infer from this evidence that [defendant] is a bad person or that he has a tendency to commit crimes; and you also cannot in any way find the defendant guilty of any of the charges in this case simply because the State has introduced evidence that he has engaged allegedly in prior bad acts.
Significantly, before instructing the jury, the court advised counsel that it would be giving the N.J.R.E. 404(b) charge and that the evidence was permitted for the limited purpose of demonstrating the state of mind of defendant and/or D.S. as it relates to motive. The court specifically read the charge it intended to give, including the language challenged on appeal about the gang membership motivating defendant to ask D.S. to commit the crime and about the gun being a test designed by defendant to see if he could trust D.S. There was no comment or objection from defense counsel either at that time or when the limiting instructions were issued.
Later, during the charge conference, the court stated that it intended to "give the 404(b) charge as previously indicated." Again, defendant did not object. The court then included the following charge on N.J.R.E. 404(b) evidence in its final instructions:
Now during this trial the State introduced evidence that the defendant . . . was a member of a street gang called the Bloods on and prior to July 10, 2009. The State also introduced testimony that [defendant] prior to July 10th, 2009, possessed a handgun and gave it to [D.S.] to hold for him.
Normally this type of evidence -- such evidence is not permitted by our rules of evidence. Our rules specifically exclude evidence that a defendant has committed other crimes or wrongs or acts when it is offered to show that he has a disposition or
tendency to do wrong and therefore he must be guilty of the charged offenses. Before you can give any weight to this evidence, you must be satisfied that the defendant committed these other crimes, wrongs or acts. If you are not so satisfied, you may not consider this evidence for any purpose.
However, our rules do permit evidence of other crimes, wrongs or acts when the evidence is used for a specific, narrow purpose.
In this case the evidence related to alleged gang membership was permitted for the limited purpose of demonstrating the state of mind of D.S. and/or [defendant] on and before July 10th, 2009, as it relates to a possible motive for the alleged crimes. More specifically, the State alleges that the gang membership when measured against how gangs operate and the conduct and activities, including criminal activities allegedly engaged in by these gangs, may explain why [defendant] would ask D.S. to commit a crime against another individual and why D.S. would carry it out. The State alleges that the gang membership motivated the defendant to ask D.S. to do it and motivated D.S. to carry it out.
Now as to the second testimonial area that was permitted, the testimony about allegedly having [defendant] asking [D.S.] to hold the gun for him, again that testimony is only admitted for a very specific and narrow purpose. This evidence about this alleged incident regarding the holding of a handgun was admitted for the limited purpose of demonstrating a possible explanation for why [defendant] would trust [D.S.] to commit a crime at his request on July 10th, 2009. The State alleges that this incident was designed by [D.S.] as a test to see if he could trust [D.S.] and to see if he, [D.S.], would follow
[defendant's] instructions. Therefore it was admitted only to demonstrate the mindset or state of mind of both [defendant] and [D.S.] on both days; the date of the holding of the gun allegedly and also as to what was allegedly done on July 10th, 2009.
Whether this evidence does in fact demonstrate the motive and the state of mind that I just explained to you, whether it demonstrates a basis for why [defendant] would ask [D.S.] to commit a crime and why [D.S.] would do it is for you to decide. You may decide that the evidence does not demonstrate motive and is not helpful to you at all. In that case, you must disregard the evidence. However, on the other hand, you may decide that the evidence does demonstrate motive and use it for that specific purpose.
However, you may not use this evidence to decide that the defendant has a tendency to commit crimes or that he's a bad person; that is, you may not decide that just because the defendant has committed other crimes, wrongs, or acts, he must be guilty of the present crimes charged. I have admitted the evidence only to help you decide the specific questions regarding [defendant's] and [D.S.]'s states of mind as the evidence may relate to a possible motive. You may not consider this evidence for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he engaged allegedly in these activities.
We have recently reiterated the applicable standard of review that informs our analysis:
Pursuant to Rule 2:10-2, arguments not presented at trial are reviewed under the plain error standard, State v. Wakefield, 190 N.J. 397, 473 (2007), which prevents
appellate courts from reversing unless the error was "clearly capable of producing an unjust result," State v. Burns, 192 N.J. 312, 341 (2007). Defendant's contentions, however, relate to jury instructions, which play a critical role in criminal prosecutions, to the extent that it has been well-established that erroneous instructions "are poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979); see also State v. Maloney, 216 N.J. 91, 105 (2013); State v. Rhett, 127 N.J. 3, 7 (1992); State v. Weeks, 107 N.J. 396, 410 (1987). Of course, in reviewing any claim of error relating to a jury charge, the "charge must be read as a whole in determining whether there was any error", Torres, supra, 183 N.J. at 564, and the effect of any error must be considered "in light of the overall strength of the State's case," State v. Walker, 203 N.J. 73, 90 (2010).
[State v. Gonzalez, No. A-0768-13 (App. Div. Jan. 25, 2016) (slip op. at 8-9).]
When the charge is viewed as a whole, defendant's claims clearly lack merit. The court's instructions tracked the model N.J.R.E. 404(b) charge and properly described the evidence of other crimes, wrongs or acts "offered by the State" and the "limited purpose, relevant to a genuine, disputed issue, for which the evidence has been introduced." The jury was free to either accept the State's theory of the case or reject it. Defendant does not explain what the court could have, or should have said differently, had a timely objection been made. In any event, "[n]o party is entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." State v. Jordan, 147 N.J. 409, 422 (1997).
V.
Also for the first time on appeal, defendant argues that his conviction was against the weight of the evidence and should therefore be reversed. He contends that his conviction was based solely on D.S.'s "utterly incredible testimony" and that D.S.'s "flagrantly contradictory" accounts "preclude belief."
Initially we observe that because defendant failed to move for a new trial in the trial court, his argument is not properly cognizable on appeal. R. 2:10-1; State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). But see State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993) (permitting a court to address the merits of an against the weight of the evidence argument even in the absence of a motion for a new trial "in the interest of justice").
A trial court may grant a defendant's motion for a new trial "if required in the interest of justice." R. 3:20-1.
The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that
there was a manifest denial of justice under the law.
[Ibid.]
On appeal, our standard of review is substantially the same. We may not set aside a trial court's ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Our task is to determine if a "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). "Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993).
Having reviewed the record, although it is clear that the State's case was largely based on D.S.'s testimony, we do not find his testimony so unbelievable as to render the verdict invalid. D.S. was subject to extensive cross-examination and the defense highlighted his contradictory statements and differing accounts of the incident. The jury was able to not only observe D.S.'s demeanor at trial but also to see and hear his initial videotaped statement to police. It was within the jury's province to assess D.S.'s credibility and ultimately accept or reject his version of events.
Moreover, as noted, the State also presented expert testimony to explain the hierarchy of gangs in general, and the violent disciplinary process for failing to follow an order. Further, the State presented video surveillance footage showing D.S. and defendant in the same area shortly before and after the shooting, telephone calls between defendant and Butler just before the shooting, and T.W.'s testimony that he saw the shooter and defendant together shortly before the murder. Cumulatively, we find the evidence sufficient to support the jury's verdict.
VI.
Finally, defendant argues that the court imposed an excessive sentence by failing to consider certain facts that may have supported a thirty-five-year sentence, instead of the sixty-year sentence actually imposed. Defendant does not challenge the court's decision to impose an extended term.
"Appellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014). We must affirm the sentence "[w]hen the aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced," provided that the sentence does not "shock the judicial conscience." Ibid. (quoting State v. Roth, 95 N.J. 334, 365 (1984)). "On the other hand, if the trial court fails to identify relevant aggravating and mitigating factors, or merely enumerates them, or forgoes a qualitative analysis, or provides little insight into the sentencing decision, then the deferential standard will not apply." Ibid. (quoting State v. Kruse, 105 N.J. 354, 363 (1987)).
Here, the court "gave quite a bit of thought" to the sentence and to "the facts surrounding this case." It found "nothing redeeming" in the fact that "defendant never worked a day in his life" and instead supported himself by selling drugs. Defendant had an extensive criminal record, including robbery as a juvenile, and "four pages or so" of "crime after crime." The court was "not overly pleased" with the "sweetheart deal" that D.S. received but recognized that defendant may not have been convicted without that testimony.
The court declined to apply aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the nature and circumstances of the offense, "because that would be double counting." The court did find aggravating factor number three, N.J.S.A. 2C:44-1(a)(3), because there was a risk that defendant would commit another offense "if he would set up the robbery with a weapon with bullets in it for someone who, by some accounts, he considered a friend." The court found aggravating factor five, N.J.S.A. 2C:44-1(a)(5), involvement in organized crime, because defendant admitted to selling drugs and being part of a gang. Aggravating factor six, N.J.S.A. 2C:44-1(a)(6), applied because of the extent of defendant's prior criminal history. With "shootings becoming the norm" and "young people" being asked to commit crimes in order to "gain membership and acceptance and status in gangs," the court found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterring defendant and others from violating the law, to be "strongly" applicable.
The court specifically rejected the mitigating factors proposed by defendant, including factors one, N.J.S.A. 2C:44-1(b)(1), that defendant's conduct neither caused nor threatened serious harm, and two, N.J.S.A. 2C:44-1(b)(2), that defendant did not contemplate that his conduct would cause or threaten serious harm, "because there was a bullet in the gun." The court weighed the aggravating and mitigating factors and was clearly convinced that the aggravating factors substantially outweighed "the non-existing mitigating factors."
We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines in the Criminal Code. The sentence the judge imposed does not constitute such clear error of judgment as to shock our judicial conscience. Case, supra, 220 N.J. at 65. Accordingly, we discern no basis to disturb the sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION