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State of New Jersey v. Edward Peoples


May 23, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2643.

Per curiam.


Submitted January 10, 2012 Before Judges Payne, Simonelli and Hayden.

Following a jury trial, defendant Edward Peoples was convicted of first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (count two); first-degree attempted murder, N.J.S.A. 2C:11-3 (count three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six).*fn1

At sentencing the trial judge merged count six with count two and sentenced defendant on count two to a sixty-five-year term of imprisonment, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent twenty-year term of imprisonment with seventeen years of parole ineligibility on count three; a concurrent five-year term of imprisonment on count five; and the appropriate assessments and penalties.

On appeal, defendant raises the following contentions in his appellate brief:


















Defendant raises the following contentions in his pro se supplemental letter brief:





We decline to address Point II of defendant's pro se supplemental brief because it involves allegations and evidence that lie outside the trial record, and the trial itself does not provide an adequately developed record upon which to evaluate the issue. State v. Castagna, 187 N.J. 293, 313 (2006). As for Point I of defendant's pro se supplemental brief, because of an error regarding potential juror taint, we remand for further proceedings. We affirm on all other issues.

The charges against defendant stem from the shooting death of Rahman Jenkins (Jenkins) in the parking lot of the Baxter Terrace apartment complex in Newark (the apartment complex).

Duane Tims (Tims) testified at trial that he and Jenkins were long-time friends who once sold drugs together. On January 20, 2006 at approximately 8:00 p.m., he and Jenkins drove in Tims's van to the apartment complex, and went to the apartment of Marvin Shahid McLeod (McLeod). They were there a few minutes when a man, who was "jittery" and very nervous, came into the apartment and said something to the three men that caused them to leave immediately.

Tims, Jenkins, and McLeod crossed the parking lot and headed for Tims's van. Tims was in the lead, while Jenkins and McLeod walked a few feet behind him. Neither Tims nor Jenkins was armed. Tims reached and entered the van first, started it, and then heard a gunshot from behind the van, followed by several more gunshots. He opened the passenger door to facilitate Jenkins's entry, but Jenkins did not appear. He then opened the driver's door, looked toward the rear of the van, and saw Jenkins laying face down in the parking lot, with two men standing over him. One of the men was tall and slim, and the other was shorter and chubby. The shorter, chubbier man was pointing and shooting his gun at Jenkins. The man then turned, pointed and fired the gun at Tims, but missed. Tims quickly drove from the parking lot. He recognized the shorter, chubbier man who shot at him as "Phat Boy," whom he had known for about ten years. At trial, he identified defendant as "Phat Boy."

Tims decided to return to the parking lot. On the way back, he stopped and reported the shooting to two New Jersey Institute of Technology police officers, who immediately went to the apartment complex. Tims did not otherwise speak to the police about the shooting until March 15, 2006, when he was contacted as part of the official murder investigation.

McLeod testified at trial that as he was following Jenkins through the parking lot, two men ran up to them, he heard shots, saw Jenkins fall, and then turned and ran back to his apartment. Contrary to Tims's description of the shooters, McLeod said they were both slender in build, though one was taller than the other. He also testified that he did not see defendant in the parking lot the night of the shooting.

Co-defendant Joseph Richardson (Richardson)*fn2 testified at trial that on the night of the shooting he was at his girlfriend's apartment in the apartment complex when defendant, whose mother also had an apartment there, entered and told him that Jenkins was outside. Defendant asked Richardson to accompany him to speak with Jenkins. According to Richardson, defendant and Jenkins had an ongoing dispute over selling drugs at the apartment complex. Jenkins sold drugs from the parking lot until September 2005, when he was shot by Cory Hopkins.*fn3

Jenkins returned to the parking lot in mid-January 2006 to resume his drug selling; however, defendant and Richardson were now selling drugs there, and defendant told Jenkins that Jenkins could not do so. Matters came to a head when Jenkins returned on January 20, 2006.

Richardson also testified that he and defendant left Richardson's girlfriend's apartment and went to defendant's mother's apartment, where they armed themselves with handguns; Richardson had a nine millimeter handgun, while defendant had an "automatic" handgun. Richardson saw defendant's girlfriend, Anyea Williams (Williams), in the apartment, but she did not speak to them.

Richardson and defendant left the apartment, walked to the parking lot, and approached Jenkins, who was walking ahead of them toward a van that had its engine running. Defendant called Jenkins, and Jenkins turned and said, "What's up?" The two men stood "a couple of steps" apart and talked for about a minute, with Richardson standing behind and very close to defendant. At that point, shots were exchanged. Richardson saw defendant shooting a black, semi-automatic handgun, and saw Jenkins fall to the ground. The gunfire continued, and Richardson began running backwards, shooting his handgun about nine times in the direction of Jenkins and the van. Initially, he did not know where the other gunshots were coming from, but concluded that they were from defendant's handgun. He did not see Jenkins with a weapon, and did not see any gunfire coming from the van. Both he and defendant then fled the scene. Based on a conversation he had with defendant prior to his arrest, he believed that defendant was threatening to kill him if he testified against defendant.

Williams was arrested on a drug charge on the evening of the shooting, and was released from jail three weeks later. She and defendant began having relationship problems, and she eventually filed a domestic violence complaint against him. She also gave the police a statement on February 28, 2006, inculpating defendant in Jenkins's murder. On July 17, 2006, she received a probationary sentence following her conviction on the drug charge in exchange for her agreement to testify against defendant. On September 25, 2007, Williams gave a videotaped statement describing threats she received about testifying against defendant. She had also received letters from defendant warning her against testifying against him.

Williams testified at trial that, between 8:00 p.m. and 8:30 p.m. on January 20, 2006, she was at defendant's mother's apartment when defendant and Richardson entered. Richardson had a handgun in his waistband, and defendant went into the bedroom and retrieved a handgun that was kept there. The two men then left the apartment together and went to the parking lot. A short time later, she heard gunshots. Defendant returned to the apartment and told her that he shot Jenkins after an argument "[o]ver a drug spot." Defendant then left the apartment. At that point, an unknown person entered the apartment and told Williams to leave because the police were coming.

Marquis Grimsley (Grimsley) gave the police a statement on January 31, 2006, that he saw defendant standing over Jenkins and shooting him. He also gave a videotaped statement on September 20, 2007, that defendant made threats against him and his family if he testified against defendant.

Grimsley had also received three letters from defendant prior to trial, two of which he discarded, but forwarded the third to another person. The third letter made its way to a detective. In that letter, defendant thanked Grimsley for saying he would not testify against defendant. Defendant also asked Grimsley to complete a typewritten affidavit that accompanied the letter, which said that Grimsley had been untruthful in his January 31, 2006 statement, and that he had not seen defendant or anyone else shoot at Jenkins.

Contrary to his statements to the police, Grimsley testified at trial that at the time of the shooting, he was visiting his girlfriend's apartment when he looked out the kitchen window, heard gunshots, and then ducked below the window line, not observing the shooting. When he looked out the window again, he saw defendant running from the scene, but could not remember seeing anything in defendant's hands. He also testified that defendant made no threats against him about testifying at trial.

Gregory Smith (Smith) had been arrested on May 7, 2007, on aggravated assault and weapons charges, and was housed in jail with defendant. He later entered into a plea agreement to testify against defendant in exchange for a probationary sentence. Smith testified at trial that on May 11, 2007, defendant told Smith that he had shot Jenkins, but that he wanted Smith to testify that Smith was present at the shooting and saw a "skinny guy" shoot Jenkins. Defendant also offered Smith $10,000.

Smith also testified that defendant gave him written instructions and a diagram of the parking lot so that Smith could tailor his testimony to the crime scene. The instructions directed Smith to say that he was visiting a friend at the apartment complex at 8:30 p.m., and that as he exited the building, he saw Richardson and his brother arguing with Jenkins and Tims, saw Richardson, Richardson's brother and Tims pull out hanguns, and saw Richardson shoot Jenkins, probably with a .45 caliber handgun, while standing over Jenkins. The diagram specified where the shooting took place in the parking lot and the positions of the various actors. Smith gave the instructions and diagram to the prosecutor.

The medical examiner testified that Jenkins had been shot ten times at close range: there were five shots to the head, one to the neck, one to the chest, and three to the arms. A firearms expert examined the cartridge casings found at the crime scene, concluding that five were nine millimeter cartridges that had been discharged from the same weapon. The expert examined eleven other casings, concluded that they were from .45 caliber cartridges, and determined that four had been discharged from one weapon, while seven had been discharged from a different weapon. Based on the cartridges, the expert concluded that three different firearms were used during the shooting.

Defendant did not testify at trial. Instead, he called McLeod and Lavar Gardner (Gardner). Gardner testified that she looked out a window after hearing the gunshots and saw a man lying on the ground in the parking lot, while a "skinny, very thin" man stood over him and shot him a number of times. She also saw a van driving away, with people in the van exchanging gunfire with people in the parking lot.


We first address defendant's contention in Point I of his pro se supplemental brief regarding alleged juror taint. Defendant argues that his convictions should be reversed and the matter remanded for a new trial because the trial judge failed to fully investigate and determine whether a juror had been exposed to improper influence by Jenkins's father.

Following a lunch recess on the second day of trial, defense counsel approached the judge at sidebar and said:

Judge, during the luncheon recess, I went over to the cafeteria, third floor [H]all of [R]ecords. When I walked in, I went to get a soda, . . . the father of the deceased, the victim in the case, [was] sitting at the same table, and I believe conversing with Juror Number 11. So I would respectfully request that the Court make inquiry into that.

The judge did not immediately address the issue, but later stated that he would do so after the afternoon recess. Defense counsel then suggested that the prosecutor could speak with Jenkins's family, and tell them to "stay away from the jurors eating lunch." The prosecutor demurred, saying that he was not convinced that Jenkins's father actually spoke to a juror and that he would ask the father if he did so. Nothing more occurred at that time.

The next morning, the judge said he was going to address the issue of "Juror Number 11 because of a suggestion that she had been speaking to" Jenkins's father. Defense counsel immediately responded as follows:

I'm not suggesting that at all, your Honor. Essentially, I'll put on the record, I came into the cafeteria, umm, yesterday to get something to drink during the luncheon recess, and the, umm, the father of the victim - - I respect wholeheartedly, he's got an amazing reputation as an upstanding citizen, but he was sitting at the same table as Juror Number 11, your Honor. I just want to make sure that there were no discussions, to really maintain the integrity and sanctity of the system.

Without advising Jenkins's father of what defense counsel had reported, the judge asked the father whether he had had any interaction with anybody who might be a juror. The father denied knowing what the jurors, including Juror Number 11, looked like, and denied having any interaction with anybody that he had any suspicion was on the jury. Defense counsel advised the judge that he accepted the father's representations. The matter concluded without the judge questioning Juror Number 11, who later participated in the deliberations that led to defendant's convictions.

The Sixth Amendment to 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. State v. R.D., 169 N.J. 551, 557 (2001). Thus, a criminal defendant "is entitled to a jury that is free of outside influences and [that] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." Ibid.

"[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58; see also State v. Maisonet, 166 N.J. 9, 22-23 (2001) (holding that the court has an "'independent duty to act swiftly and decisively to overcome the potential bias of a jury from outside influences'" (quoting Williams, supra, 93 N.J. at 63)). As we have held,

The thrust of the New Jersey and federal cases on mid-trial allegations of jury misconduct [like juror exposure to outside influences] is that the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality.

Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review. [State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.) (citations omitted), certif. denied, 151 N.J. 466 (1997).]

Where it becomes apparent at trial that a juror may have been exposed to extraneous information or outside influences, the trial "court is obliged 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." R.D., supra, 169 N.J. at 558. Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on Rule 1:16-1 (2012) (citations omitted) pertinently states that:

[a]lthough the rule is drawn in terms of a post-verdict interrogation of jurors, the technique provided by the rule for determining juror taint is obviously applicable during the course of the trial as well when a circumstance arises suggesting that a juror may in fact be tainted. In that situation the trial court, upon being apprised of such a circumstance, is obliged to interrogate the juror in the presence of counsel to determine if there is a taint. If so, the court is then obliged to interview the other jurors to determine if they or any of them have been infected by the taint. The court is then obliged to determine, assuming a sufficient number of jurors remain, whether the trial may proceed upon excusing the tainted juror or jurors or whether a mistrial must be declared. .

If the trial court fails to so proceed and the circumstance is indeed one which is apparently tainting, the taint must be presumed and a new trial ordered.

See State v. Bisaccia, 319 N.J. Super. 1, 13 (App. Div. 1999) ("[W]here, as here, there is the possibility of actual juror taint or exposure to extraneous influences (including jury misconduct and 'comments made to jurors by outside sources'), the judge must voir dire that juror and, in appropriate circumstances, the remaining jurors.").

Contrary to the requirement set out in R.D., as explained in Rule 1:16-1, the judge did not question Juror Number 11 to determine if she had been exposed to extraneous information or outside influence that could have possibly impinged on her impartiality, and whether she imparted that information to her fellow jurors. Thus, we cannot conclude with certainty that juror taint did not occur. Accordingly, we remand for the court to recall Juror Number 11, question her about the matter, and determine whether juror taint occurred. R.D., supra, 169 N.J. at 558. If the judge concludes juror taint occurred, then he shall order a new trial. Ibid.

We continue our review to resolve the remaining issues raised on appeal for guidance.


Defendant contends in Point I of his appellate brief that the judge erred in admitting Williams's September 25, 2007 videotaped statement and Grimsley's January 31, 2006 statement as prior inconsistent statements pursuant to N.J.R.E. 803(a)(1) because they were unreliable. We disagree.

Williams gave the police a statement on February 28, 2006, that defendant came to his mother's apartment, retrieved a gun, left the apartment, and went to the parking lot. She then heard gunshots. Defendant returned to the apartment and told her that he shot Jenkins. In her September 25, 2007 videotaped statement, she confirmed that the February 28, 2006 statement was true, and also stated that, through telephone calls and correspondence, defendant and his friend threatened to kill her, her family, and anyone she loved because of her February 28, 2006 statement. She also said she had received letters from defendant threatening to "make sure something happens[s to her]" if she testified against him. She said she was afraid and gave the videotaped statement for her safety. At trial, she testified that no one had threatened her or warned her not to testify against defendant.

The judge held a Gross*fn4 hearing to determine the reliability of Williams's videotaped statement. He heard testimony from Williams and the detective who took her statement, and reviewed the videotaped statement and the February 28, 2006 statement. Applying the Gross factors,*fn5 the judge held the videotaped statement was reliable, and admitted it into evidence. He found that Williams had direct personal knowledge of the homicide and threats made to her; her interest in the matter was severe because she had concern for her personal safety; there was nothing intimidating about the place where she gave the statement; she was not handcuffed and nothing indicated she was in custody; her demeanor was relaxed and she did not appear to be in any kind of altered state; she made the statement to police officers; she made no incriminatory statements; she made the statement herself; this "was not a rough interrogation" and there was no evidence of overzealous police officers; the recording contains her entire statement; there was no credible evidence of threats, promises, coercion or inducements made to her; she knew the statement would be used in this matter; there was nothing inherently unbelievable about what she said; defendant's letters to her corroborated her statement that threats had been made to her; and she confirmed that the February 28, 2006 statement was true.

In his January 31, 2006 statement, Grimsley said that he looked out the window and saw defendant standing over Jenkins, shoot at him once, look up, and look around. Grimsley then backed away from the window. Grimsley had also given a videotaped statement on September 20, 2007, in which he confirmed his January 31, 2006 statement was true and that he saw defendant shoot Jenkins. He also said that defendant sent him three letters that made him feel threatened and fear for his family. In one letter, defendant asked him to rescind his January 31, 2006 statement and sign an affidavit saying that he had lied and had not seen defendant shoot Jenkins.

At trial, Grimsley testified that he was at a kitchen window on the night of the shooting when he heard shots and then ducked down below the window. He did not see the shooting. Although he saw defendant running from the scene, he did not see anything in defendant's hands. When confronted with his January 31, 2006 statement, Grimsley said he could not remember most of what it contained, and he was specifically unable to recall saying that he saw defendant standing over Jenkins and shooting him.

The judge held a Gross hearing to determine the reliability of Grimsley's January 31, 2006 statement. He heard testimony from Grimsley and the detective who took the statement, and reviewed the statement and the September 20, 2007 videotaped statement. Applying the Gross factors, the judge held the statement was reliable, and admitted portions of it into evidence. He found that Grimsley had first-hand knowledge of the matter and an interest in telling the truth based on defendant's threats; he was in police headquarters but not handcuffed; he was in custody but was not the target of the investigation; he did not seek to incriminate or exculpate himself; he signed the January 31, 2006 statement and initialed each page; he was not forced to give any particular answers; there was no evidence that the statement was only a portion of what he had said; in the videotaped statement Grimsley "did not look like a man who was speaking as a result of any threats, pressure, inducements," and what he said and how he said it "struck [the judge] as totally voluntary;" and his demeanor on the videotape was contrary to that at trial.

We review a trial court's evidentiary determinations under an abuse-of-discretion standard. State v. Buda, 195 N.J. 278, 294 (2008). An "abuse of discretion only arises on demonstration of 'manifest error or injustice[,]'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal citation omitted).

In addition, in determining whether to admit prior statements, the trial court necessarily makes credibility determinations and related factual findings. State v. Soto, 340 N.J. Super. 47, 69 (App. Div.), certif. denied, 170 N.J. 209 (2001). The trial court's "credibility determinations are entitled to deference and those factual findings must be sustained as long as they are supported by sufficient, credible evidence in the record." State v. Yohnnson, 204 N.J. 43, 62 (2010).

Applying these standards, we discern no reason to disturb the judge's rulings. The judge carefully examined all of the evidence produced at both Gross hearings, and made factual and credibility findings based on that evidence. The record amply supports his conclusion that Williams's and Grimsley's statements were reliable. Accordingly, they were properly admitted into evidence.


In Point II of his appellate brief, defendant contends that the judge erred in admitting most of Grimsley's September 25, 2007 videotaped statement into evidence because defendant did not open the door to admit the statement; he was prejudiced by Grimsley's reference to gangs in the statement; and proof of Grimsley's state of mind towards him was not relevant to the material issues the jury had to decide. We reject these contentions.

During Grimsley's direct examination, the judge admitted portions of both his January 31, 2006 statement and videotaped statement into evidence as prior inconsistent statements.

During cross-examination, Grimsley denied other portions of both statements. After testifying on cross-examination that whatever he testified to or would testify to in court was the truth, Grimsley further repudiated his two prior statements, and said that his courtroom testimony was the truth notwithstanding those statements.

The State then moved to admit the entire videotaped statement into evidence. Before the judge ruled on the application, Grimsley testified on re-direct examination that defendant did not threaten him, and that he could not remember part of his videotaped statement.

The judge admitted the videotaped statement into evidence, stating that:

First of all, I would say that there was nothing very surgical about the cross-examination of Mr. Grimsley in terms of his prior [videotaped] statement. It was more like a sledge hammer was used than a scalpel.

But that's not what drives my ruling. I say that as my way of explaining that, by the cross-examination, this entire video, this statement has been put into focus in terms of when Mr. Grimsley was telling the truth and when he was not. His trial testimony was squarely pitted against his entire video statement. But that's only one -- that aspect of my ruling only goes to [the] opening the door aspect.

Now that I've ruled that the door has been flung wide open, now comes the [N.J.R.E.] 403 analysis. I do not believe that the probative value is substantially outweighed by undue prejudice, confusion of issues, misleading the Jury or undue consumption of time.

I do not share with the Defense that the reference to Crips and Bloods enables the Jury to rationally infer that the defendant is a Crip or a Blood. Rather, I think it goes to the state of mind of Mr. Grimsley as to what he did or did not do with the letters as he said, his state of mind towards testifying, his -- totally, totally goes to his fear -- period. One moment.

I think . . . [a] proper limiting instruction . . . would ameliorate any potential prejudice.

It goes to threats. It goes to the affidavits. And it all goes -- it's squarely placed against his trial testimony, and I find and conclude that the Jury has the right to evaluate the trial testimony of Mr. Grimsley against that particular [video] statement, as . . . [defense counsel] clearly set up. That is my ruling.

The judge subsequently ruled that the entire videotaped statement would be admitted as bearing on Grimsley's state of mind toward defendant, and on his "testifying in court as that bears on the credibility of his trial testimony." The judge rejected defendant's objections as to relevancy and prejudice, stating that the videotaped statement's probative value was not outweighed by the potential for any undue prejudice, consumption of time, or the risk of misleading the jury or confusing the issues.

The videotaped statement was played to the jury with one non-important deletion. In the statement, Grimsley said there were "Bloods and Crips" gang members in the jail and that he was wary of crossing them in any way. Grimsley did not say or suggest that defendant was a gang member. When the videotape ended, the judge instructed the jury that there was no evidence that defendant was a member of the Bloods or the Crips or any other street gang.

Where the "opening the door" doctrine is concerned, the admission or exclusion of evidence involves the weighing process set out in N.J.R.E. 403. State v. James, 144 N.J. 538, 554 (1996). A trial court has "broad discretion in making relevance and admissibility determinations under N.J.R.E. 401, 402, and 403," and those determinations will not be disturbed on appeal "absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom., Lydon v. Silverman, 196 N.J. 466 (2008).

"The 'opening the door' doctrine is essentially a rule of

expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant or inadmissible in order to respond to . . . admissible evidence that generates an issue."

James, supra, 144 N.J. at 554. The doctrine "allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." Ibid. The doctrine "provides an adverse party the opportunity to place evidence into its proper context." Alves v. Rosenberg, 400 N.J. Super. 553, 564 (App. Div. 2008).

Here, defendant opened the door on Grimsley's cross-examination by eliciting testimony that what Grimsley said in the videotaped statement was false and what he said at trial was true, including his denials that defendant had threatened him. This was admissible evidence, and the judge properly determined that the State could counter it with those parts of the videotaped statement not already admitted into evidence, which established Grimsley's recognition of defendant's threats and the fear they engendered. Thus, the admission of the videotaped statement under the "opening the door" doctrine permitted the State to respond to defendant's attack on it and to place Grimsley's trial testimony in the proper context of the threats defendant had made, showing the jury why Grimsley was testifying at trial the way he did. In that manner, admission of the statement comports with the rationale for admitting such evidence set out in James.

In addition, defendant suffered no prejudice by Grimsley's reference to gangs. Grimsley did not say or imply that defendant was a gang member, or that defendant had engaged gang members to threaten him. Moreover, the judge explicitly instructed the jury that there was no evidence linking defendant to a gang. Defendant's contention that he was prejudiced is, thus, pure speculation. In no way was the probative value of the video statement to show why Grimsley testified at trial as he did outweighed by that purported prejudice. N.J.R.E. 403.

Further, Grimsley's state of mind toward defendant was highly relevant. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Once Grimsley denied making the statements inculpating defendant, and once the judge determined the statements were reliable, it was the jury's function to assess the credibility of Grimsley's trial testimony. One way to accomplish this was to determine his state of mind.

Insofar as Grimsley's testimony was concerned, the "fact of consequence" concerned what he observed from the kitchen window on the night of the shooting. His videotaped statement was relevant to explain why his testimony at trial about what he saw was inconsistent with his January 31, 2006 statement. The videotaped statement set out Grimsley's awareness and fear of defendant's threats and served to prove that his trial testimony was colored and affected by those threats. To the extent that the videotaped statement showed Grimsley's "state of mind" in testifying as he did at trial, the video statement was relevant.

In sum, defense counsel's questioning of Grimsley opened the door to admit his videotaped statement. Because the information conveyed in that statement was necessary to place Grimsley's trial testimony concerning what he saw on the night of the shooting in proper context and because the judge addressed and minimized any prejudice arising out of the statement, the admission of the videotaped statement did not constitute an abuse of discretion or manifest denial of justice. Lancos, supra, 400 N.J. Super. at 275.


Defendant contends in Point III of his appellate brief that the judge erred in precluding Brandon Stokes from testifying that Richardson had told Stokes in a jailhouse conversation that defendant had nothing to do with Jenkins's killing, and that Richardson and his brother had killed Jenkins. Defendant argues that Stokes's testimony is admissible pursuant to N.J.R.E. 803(a)(1) because at trial, Richardson denied making these statements to Stokes.

Appellant contends in Point IV of his appellate brief that the judge erred in precluding him from presenting evidence of third-party guilt by showing that one of the handguns used in Jenkins's shooting was also used in a later homicide, while defendant was incarcerated.

For the first time on appeal, defendant contends in Point V of his appellate brief that the judge erred in failing to instruct the jury on his right not to testify, and issuing a prejudicial instruction concerning circumstantial evidence.

We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make these brief comments.

At trial, Richardson never denied making any statements to Stokes, and thus, there was no inconsistency in his testimony. N.J.R.E. 803(a)(1). Accordingly, the judge properly precluded Stokes's testimony. Lancos, supra, 400 N.J. Super. at 275.

There is no evidence whatsoever of third-party guilt in this case. See State v. Jiminez, 175 N.J. 475, 486 (2003) (holding that "[t]here must . . . be some evidence of third-party guilt to permit the defense to argue the point"). Defendant's claim of possible third-party guilt is nothing more than mere conjecture. See State v. Cotto, 182 N.J. 316, 333 (2005) (holding that "a defendant cannot simply seek to introduce evidence of 'some hostile event and leave its connection with the case to mere conjecture'" (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). Accordingly, the judge properly precluded evidence of third-party guilt. Lancos, supra, 400 N.J. Super. at 275.

The judge gave the instruction on defendant's right not to testify that defendant had requested, which mirrored Model Jury Charge (Criminal), "Defendant's Election Not to Testify," (June 14, 2004). There was no error, let alone plain error, in this instruction. See State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003) (no plain error found where the instruction used the model charge and there was no objection to the language used), certif. denied, 180 N.J. 150 (2004).

Defendant's argument concerning the instruction on circumstantial evidence fares no better. It matters not whether the judge used blueberry pie, apple pie or some other example to illustrate circumstantial evidence. The judge gave an instruction that properly instructed the jury of the elements of circumstantial evidence. The instruction was thus not capable of producing an unjust result. See State v. Kelly, 406 N.J. Super. 332, 352-53 (App. Div. 2009), aff'd, 201 N.J. 471 (2010).


Defendant challenges his sentence in Point VI of his appellate brief. He contends that the judge erred in failing to find and apply certain mitigating factors and articulate his reasons for imposing a base sentence in excess of the mandatory minimum base term. This contention lacks merit.

We review a judge's sentencing decision under an abuse-of-discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

Defendant argues that the judge should have found and applied mitigating factor three, "[t]he defendant acted under a strong provocation," N.J.S.A. 2C:44-1b(3); factor four, "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," N.J.S.A. 2C:44-1b(4); factor five, "[t]he victim of the defendant's conduct induced or facilitated its commission," N.J.S.A. 2C:44-1b(5); and factor eight, "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1b(8). As the judge properly found, the record does not support any of these mitigating factors -- there is no evidence that Jenkins was armed or involved in the gunfight, or that defendant had to protect himself from Jenkins. There is evidence, however, that defendant's conduct would likely recur. Defendant has led a life of selling drugs and escalating criminal activity. It is clear from the heinous, cruel, depraved and execution-like murder in this case that he will do anything to protect his drug turf.

The record supports the judge's finding and application of aggravating factors three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); and factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A.

2C:44-1a(9). Defendant raises no argument to the contrary. Rather, he argues that the judge failed to articulate his reasons for imposing a base sentence in excess of the mandatory thirty-year minimum base term. Our review of the record satisfies us that the judge fully explained his reasons for imposing the sixty-five-year term of imprisonment. Under the facts of this case, the sentence does not shock our judicial conscience.

Remanded for further proceedings consistent with this opinion, and affirmed in all other respects. We do not retain jurisdiction.

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