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State of New Jersey v. Earl T. Moore

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 23, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EARL T. MOORE, A/K/A "B," TREMAINE T. MUHAMMAD, TREMAYNE TAYLOR, TREMAYNE E. MOORE, STACEY MOORE, TREMAYNE COX, MOORE COX AND SUBOR HARRIS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1407.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2012

Before Judges Fisher, Alvarez and St. John.

A Camden County Grand Jury returned a multi-count indictment charging defendant Earl T. Moore with various offenses against the victim, Dewey Marshall. Following a jury trial, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a, the lesser-included offense of the charged first-degree murder, N.J.S.A. 2C:11-3a(1)(2); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (robbery or burglary); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2b(1) or (2); second-degree conspiracy to commit armed robbery/burglary, N.J.S.A. 2C:5-2/ 2C:18-2b(1) or (2); second-degree possession of a weapon for an unlawful purpose (firearm), N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon (firearm), N.J.S.A. 2C:39-5b. After a separate trial before the same jury, defendant was convicted of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.

Following appropriate mergers, the judge imposed a sentence of life imprisonment on count two, the felony murder charge, subject to a period of eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge sentenced defendant to ten years imprisonment, with five years parole ineligibility on the second-degree conspiracy to commit armed robbery/burglary and five years imprisonment, with two-and-one-half years parole ineligibility on the third-degree unlawful possession of a weapon. These sentences were to be served concurrently with each other and with the terms imposed on the felony murder and the certain persons convictions. On the second-degree certain persons not to have weapons conviction, the judge sentenced defendant to a term of ten years imprisonment, with five years parole ineligibility, to be served consecutively to the felony murder conviction and concurrently to the terms imposed on the conspiracy and unlawful possession of a weapon convictions. Appropriate fines and penalties were imposed.

I.

We briefly summarize the procedural history and the facts based on the evidence presented at trial and pretrial proceedings. Before the trial commenced, the trial judge granted the State's application to admit certain evidence, specifically defendant's prior history of gang involvement as motive for the homicide. N.J.R.E. 404(b). The judge also determined that defendant's prior convictions would be admissible for impeachment purposes in the event defendant testified. N.J.R.E. 609.

On the night of August 29, 2005, defendant, Lawrence Willis and Corey Manderville, were driving around Camden in a rented red colored Pontiac Grand Prix, when they decided that they wanted to find someone to rob. At the time, Willis was armed with a .25 caliber semi-automatic handgun, and defendant was armed with a .380 semi-automatic handgun. They eventually decided to rob Dewey Marshall, who Willis knew sold drugs.

Because Marshall knew both Willis and Manderville, they decided that defendant would call Michael Coombs to assist with the robbery. They then picked up Coombs. Coombs and defendant were both in the same set of the Blood's Street gang. Defendant had a higher rank than Coombs, and Coombs was required to follow his orders. The four proceeded to the Tamarack apartments where defendant was known to stay with his girlfriend, Neidtikka Morris. Defendant was dressed in camouflage thermal. Willis and defendant were lieutenants of equal rank in different sets or factions of the Bloods Street gang. Willis gave his .25 caliber handgun to Coombs.

At some point while they were parked in the lot at the apartment, both Willis and Manderville wanted to abandon the robbery plan. However, defendant encouraged the group to finish the job. After they grew tired of waiting for Marshall to exit the apartment, defendant and Coombs exited the car and went to Morris's apartment. Upon reaching the apartment, defendant knocked on the door as Coombs stood beside him with his gun in his back pocket. Marshall answered the door and defendant pulled his gun from his pocket. Defendant tried to force his way inside the apartment and broke the hinges off the door. Marshall ran out of the apartment at which point defendant fired one shot at him, which missed. Marshall jumped off the front steps of the building with his head down, falling to the ground in a fetal position as defendant's second shot hit and killed him.

Coombs and defendant then ran off. Morris saw a man running from the scene wearing camouflage. A neighbor, Jason Lane, saw two individuals exit the car, heard two shots, saw the same parties then enter the car, which pulled away.

A surveillance camera captured the exterior events. The ballistics report indicated that two discharged automatic .380 bullet shell casings and a bullet were recovered at the scene. There was also a bullet recovered from Marshall's head. The two bullets were discharged from the same firearm and both bullets were "most consistent with bullets utilized in a .380 auto caliber cartridge." At trial, both Coombs and Willis testified for the State.

On appeal, defendant raises the following issues for our consideration:

POINT 1

A FAIR AND IMPARTIAL TRIAL WAS DENIED TO DEFENDANT BECAUSE THE STATE WITNESS MORRIS ANNOUNCED BEFORE THE JURY THAT DEFENDANT WAS STARING AT HER AND THAT HER LIFE WAS IN DANGER, AND THE TRIAL COURT FAILED TO ISSUE CURATIVE INSTRUCTIONS TO THE JURY AND PRESERVE DEFENDANT'S RIGHT TO FULLY CROSS-EXAMINE THE WITNESS (PLAIN ERROR).

POINT 2

REFERENCES BEFORE THE JURY TO DEFENDANT'S TAKING OF LIE-DETECTOR AND VOICE STRESS ANALYZER TESTS WAS UNFAIRLY PREJUDICIAL (PLAIN ERROR).

POINT 3

THE TRIAL COURT AND PROSECUTOR INTERFERED WITH DEFENDANT'S RIGHT TO CALL A WITNESS TO TESTIFY ON HIS BEHALF AT TRIAL (PLAIN ERROR).

POINT 4

REFERENCES TO DEFENDANT'S MEMBERSHIP IN THE BLOODS GANG VIOLATED N.J.R.E. 404(B) AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT 5

THE FAILURE TO GIVE AN INITIAL ACCOMPLICE LIABILITY CHARGE TO THE JURY, COMBINED WITH THE PROSECUTOR'S STATEMENTS DURING SUMMATION DISTORTING THE ACCOMPLICE AND CO-CONSPIRATOR PRINCIPLES, CAUSED AN UNFAIR TRIAL (PLAIN ERROR).

POINT 6

JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN ENTERED ON THE ARMED ROBERY CHARGE, RENDERING DEFENDANT'S CONVICTIONS FOR ROBBERY AND THE FELONY MURDER CHARGE HINGING ON IT INVALID (PLAIN ERROR).

POINT 7

THE FELONY MURDER CHARGE WAS IMPROPER, WARRANTING VACATION OF DEFENDANT'S FELONY MURDER CONVICTION (PLAIN ERROR).

POINT 8

PERMITTING THE JURORS UNFETTERED ACCESS TO A COMPUTER DURING DELIBERATIONS WAS FUNDAMENTAL ERROR (PLAIN ERROR).

POINT 9

THE TRIAL COURT ERRED IN RULING DEFENDANT'S PRIOR CONVICTIONS ADMISSIBLE AGAINST HIM AT TRIAL.

POINT 10

DEFENDANT'S MIRANDA AND FIFTH AMENDMENT RIGHTS WERE ENCROACHED BY THE PROSECUTOR'S ELICITATION OF TESTIMONY FROM A STATE WITNESS ABOUT ALLEGED STATEMENTS MADE BY DEFENDANT (PLAIN ERROR).

POINT 11

DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

II.

Certain principles guide our determination. The arguments raised by defendant and denominated as "plain error," were not raised in the trial court. Therefore, we must determine whether any of the claimed errors constituted plain error, that is, an error "clearly capable of producing an unjust result." R. 2:10-2.

Defendant argues the trial court erred in failing to sua sponte declare a mistrial after an "emotional outburst" by Morris during her testimony and in failing to issue a curative instruction. Defendant also contends that the outburst restricted his right to cross-examine Morris. Defendant alleges these errors were "unfairly prejudic[ial] and infected the fairness of [the] trial."

As to the restriction on the right of cross-examination, the record belies defendant's assertion. After the outburst, defense counsel stated, "I've spoken with my client. We had a few more questions. But, however, he's indicated to me that in view of the situation, the witness, we're prepared to end our cross-examination at this point." The judge replied, "You sure? I don't want to foreclose you on that right. Sixth and 14th Amendment." Defendant did not avail himself of the right to ask any other questions.

Defendant asserts that Morris' statement, referring to the defendant, "Is he allowed to stare? I'm uncomfortable. Like you don't understand what I went through and I still don't even know how this happened, so I don't want -- I'm not even trying to be smart towards you, but it makes me nervous[,]" and "I'm afraid and he's staring[,]" mandated a mistrial. Morris, although the victim's girlfriend, could not identify the shooter.

We note that a mistrial is an extraordinary remedy that should be granted only to prevent a manifest injustice. State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994) (citations omitted), certif. denied, 139 N.J. 442 (1995). Of course, central to the judge's responsibility was the obligation to ensure that the jury remains fair and impartial throughout the proceedings. State v. Loftin, 146 N.J. 295, 365 (1996). When the jury's impartiality is threatened by extraneous influences, the determination of whether the curative instruction was an appropriate response is within the discretion of the judge who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting. Id. at 365-66.

We do not believe the trial judge abused his discretion in failing to sua sponte declare a mistrial and in failing to give a curative instruction.

Defendant next contends that testimony of a State's witness concerning the administration of a polygraph test to defendant, was unfairly prejudicial. As a general rule, polygraph results are not admissible in evidence in New Jersey. See State v. A.O., 198 N.J. 69 (2009).

During the course of the trial as defendant was conferring with his attorney, he asked in a voice audible to all in the courtroom, "Did I pass a lie detector test? Did I pass a lie detector test?" The judge instructed the jury to disregard the outburst. After a sidebar conference, the judge permitted the prosecutor a "limited" follow-up question of the State's witness pertaining to a lie detector test taken by defendant because defendant himself had "opened the door." Several questions were asked, answered, objected to by defendant, and stricken by the judge. We presume the jury followed the court's instructions. State v. Winder, 200 N.J. 231, 256 (2009). Ultimately, the witness stated that the test did not determine if the defendant was truthful or not. The witness explained that the results were inconclusive because defendant was not cooperating. The testimony was in the nature of limited rebuttal testimony because of defendant's outburst. Rebuttal evidence is permissible when necessary because of new subjects introduced on direct or cross-examination of defense witnesses. State v. Provoid, 110 N.J. Super. 547, 557 (App. Div. 1970).

We discern no prejudice to defendant and no error in allowing the testimony in response to his outburst.

Defendant alleges the trial judge and the prosecutor improperly interfered with his right to call a witness in his own defense. We find defendant's contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We note that after the State had rested, defendant requested that his attorney call Manderville, who was incarcerated. The judge acknowledged that Manderville had never been named as a witness and had not been subpoenaed. The court then conducted a hearing at which Manderville's counsel by telephone stated that she would advise her client to assert his Fifth Amendment rights and refuse to testify.

Defendant argues that references to his membership in the Bloods gang violated N.J.R.E. 404(b) and deprived him of a fair trial.

We turn to this evidential ruling. Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

The trial judge in this case appropriately held a Rule 104 hearing, and his factual findings resulting from that hearing are entitled to deference. State v. Robinson, 200 N.J. 1, 15 (2009). Our review of the judge's purely legal conclusions, however, is plenary. State v. Handy, 412 N.J. Super. 492, 498 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), aff'd, 206 N.J. 39 (2011).

As a preliminary matter, we address the issue of whether the admission of evidence of gang membership under the circumstances of this case warrants analysis under the heightened standard of N.J.R.E. 404(b) as interpreted by State v. Cofield, 127 N.J. 328 (1992). The Supreme Court has held that "[o]ther crimes evidence is considered highly prejudicial." State v. Vallejo, 198 N.J. 122, 133 (2009) (citing State v. Stevens, 115 N.J. 289, 309 (1989)). While evidence of past crimes or wrongs may be relevant, such evidence cannot be introduced to show a defendant's propensity towards criminal conduct, State v. Pitts, 116 N.J. 580, 602 (1989), or that he is a "bad person in general," State v. Foglia, 415 N.J. Super. 106, 123 (App. Div.) (citing Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404 (2010)), certif. denied, 205 N.J. 15 (2010). "The risk involved with such evidence is 'that it will distract a jury from an independent consideration of the evidence that bears directly on guilt itself.'" Vallejo, supra, 198 N.J. at 133 (quoting State v. G.S., 145 N.J. 460, 468 (1996)).

We recently held in Foglia, supra, 415 N.J. Super. at 122-23, that other-wrongs evidence need not involve actual criminal activity. "Although evidence of membership in a street gang is not . . . evidence of actual criminal activity, it is at the very least strongly suggestive of such activity." State v. Goodman, 415 N.J. Super. 210, 227 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

We conclude that N.J.R.E. 404(b) is applicable here because the average juror would likely conclude that a gang member has engaged in criminal activity. Such evidence has the potential to "taint" a defendant in much the same way as evidence of actual criminal conduct. Consequently, the evidence can only be used if the more demanding provisions of N.J.R.E. 404(b), as interpreted in Cofield, are satisfied.

We now turn to the question of whether, applying the strictures of N.J.R.E. 404(b) and Cofield, evidence of gang membership was properly admitted to prove motive in this case. N.J.R.E. 404(b) generally precludes the admission of evidence pertaining to other crimes or wrongs, except to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue of dispute." In Cofield, the Court set forth a four-factor test to govern the admissibility of such evidence for those purposes. Supra, 127 N.J. at 338.

When specifically reviewing the sensitive admissibility rulings made pursuant to the weighing process demanded by Rule 404(b), which deals with evidence of other crimes or bad acts, the Court has stated that "[o]nly where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed." State v. Barden, 195 N.J. 375, 391 (2008) (citation and internal quotation marks omitted). That deferential approach does not apply in cases where the trial court did not properly apply Rule 404(b) to the evidence at trial; in those circumstances, to assess whether admission of the evidence was appropriate, we may engage in our own "plenary review" to determine its admissibility. Ibid. (citation omitted); see State v. Lykes, 192 N.J. 519, 534 (2007) (citing State v. Reddish, 181 N.J. 553, 609 (2004), for proposition that appellate review is de novo when Cofield analysis is required but not performed).

In State v. Torres, 183 N.J. 554, 569-71 (2005), the Court outlined the case law in other jurisdictions that allow the admission of evidence of gang membership. In Goodman, Judge Waugh addressed the issue of whether evidence of gang membership was properly admitted to prove motive. After determining that, under the facts in that case, the evidence of gang membership warranted analysis under the heightened standard of N.J.R.E. 404(b) as interpreted by Cofield, he proceeded to determine whether that membership was properly admitted to prove motive. He stated:

Consequently, the prejudice inherent in the revelation of [defendant's] gang membership was outweighed by the probative value of the gang-related aspects of the relationship among [defendant and his two associates] in explaining why the events unfolded as they did. We know of no other evidence that could have been substituted for the gang-related testimony. See State v. Jenkins, 178 N.J. 347, 365 (2004) ("It is true that when motive or intent is at issue, we generally admit a wider range of evidence. Nevertheless, in deciding whether prejudice outweighs probative value, a court must consider the availability of other evidence that can be used to prove the same point." (Internal quotation marks and citations omitted in original)). [Id. at 230-231.]

Our review of the record convinces us that the trial judge's decision to admit the evidence should be affirmed. The judge at a Rule 104 hearing properly applied the Cofield four-factor test, concluding that the gang-related evidence was relevant to the issue of motive, was close in time, was clear and convincing, and explained defendant's motive in the killing of Marshall. Furthermore, the prejudice inherent in the revelation of defendant's gang membership, was outweighed by its probative value. The gang-related aspects of the relationship among defendant and his three associates were valuable in explaining why events unfolded as they did. We know of no other evidence that could have been substituted for the gang-related testimony. See Jenkins, supra, 178 N.J. at 365.

Once evidence is found to be admissible, "[t]he court must instruct the jury on the limited use of the evidence." Cofield, supra, 127 N.J. at 341. Defendant does not challenge the sufficiency of the judge's charges in this regard.

Defendant next contends that an unfair trial resulted because of the judge's failure to give an accomplice liability charge when the judge first charged the jury, but gave it in response to a question by the jury. During the charge conference, the prosecutor requested an accomplice liability charge. The judge denied the request. During deliberations, the jury asked a question of the judge:

It's real simple. What we're trying to figure out is everyone who may have been involved with the situation, even if you weren't the one that pulled the trigger, but let's say you were one of the four, are you -- does manslaughter encompass everybody like felony murder, let's say?

After consultation with both attorneys, the judge decided to give the accomplice liability charge based on Model Jury Charge (Criminal), "Liability For Another's Conduct," charge two (1995). Defendant consented to giving this charge to the jury.

"[A]dequate and understandable instructions" are essential to a fair trial. State v. Gartland, 149 N.J. 456, 475 (1997). When juries pose questions, the trial court "is obligated to clear the confusion." State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)). Judges are expected to read jury questions "with care to determine precisely what help is needed." State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994). The judge's responses were consented to by counsel.

We discern no error, let alone plain error, in the judge's charge to the jury or the fact that it was given in response to a jury question.

Defendant further argues he is entitled to a new trial based on a variety of comments by the prosecutor during summation that he contends constituted prosecutorial misconduct. Although prosecutors have considerable latitude in presenting closing arguments, they "may not exceed the parameters of 'permissibly forceful advocacy' established by decisional law." State v. Munoz, 340 N.J. Super. 204, 217 (App. Div.) (citing State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)), certif. denied, State v. Pantoja, 169 N.J. 610 (2001). Prosecutorial misconduct can be grounds for reversal where the prosecutor's behavior was so egregious that it deprived the defendant of a fair trial. Marshall, supra, 123 N.J. at 153.

Courts have found prosecutorial comments to be improper in instances where the remarks diverted the jury's attention from the facts of the case. State v. Ramseur, 106 N.J. 123, 322 (1987). To warrant reversal, however, courts will examine the prosecutor's statements within the context of the trial in its entirety. See, e.g., id. at 323; State v. Tirone, 64 N.J. 222, 229 (1974).

We note that the comments referenced on appeal were not objected to at trial. Generally, if no objection was made, the remarks will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323. The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made and deprives the court of an opportunity to take curative action. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997). Moreover, as in Ramseur, the judge gave the standard detailed instruction that an attorney's statements are not evidence. The judge also gave the standard charge that jurors have to accept and apply the law as given to them by the judge in the charge. Thus, under the totality of the circumstances, the challenged comments did not have the effect of depriving defendant of a fair trial.

Defendant argues his robbery conviction cannot stand because there was insufficient proof of theft or attempted theft from the victim, as well as insufficient proof to couple the assaultive conduct with a theft or attempted theft from the victim as required for the robbery crime. We find defendant's contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We also note defendant's argument is procedurally barred because he did not move for a new trial on the ground that the verdict was against the weight of the evidence. See 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).

Defendant contends that since he was accused of being engaged in the commission of more than one predicate crime, the jury should have been instructed that they must unanimously agree that defendant had committed (or attempted to commit) at least one of the offenses charged. The trial judge instructed the jury:

You can't find defendant guilty of felony murder unless you find him guilty beyond a reasonable doubt of having committed or attempted to commit one of the crimes as outlined in Counts 3 and 4; that is, he cannot be convicted of felony murder if he's not convicted of one of those two offenses, burglary or robbery.

The judge also added, "Your verdict, whatever, it might be as to each crime charged must be unanimous; that is, that each of the 12 members of the deliberating jury must agree as to the verdict."

The Supreme Court has instructed that "when there is sufficient evidence to support two or more alternative felony theories, a jury need not designate which felony theory it relies on to convict one of felony murder so long as there is sufficient evidence to sustain each felony" and "jurors need not always be unanimous on the theory of guilt, provided they are unanimous in the finding of guilt of the offense charged." State v. Harris, 141 N.J. 525, 562 (1995) (citations omitted).

In addition to finding him guilty of felony murder, the jury found defendant guilty of each of the underlying charges. We see no reason to disturb the jury's verdict of felony murder.

We are asked to consider if the court erred in permitting the jury to view photographic evidence stored on the computer that the State presented at trial during their deliberations. Defendant cites State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd, 136 N.J. 299 (1994), and State v. Burr, 195 N.J. 119 (2008), in support of his claim. However, both these cases deal with the propriety of allowing the deliberating jury to review videotaped testimony. That is not the issue here.

We do not agree with defendant's contention. "Generally, once an exhibit has been admitted into evidence, the jury may access it during deliberations, subject to the court's instructions on its proper use." Burr, supra, 195 N.J. at 133-34. Trial courts retain discretion to decide whether to allow evidence into the jury room itself. State v. Pemberthy, 224 N.J. Super. 280, 302-03 (App. Div.), certif. denied, 111 N.J. 633 (1988).

We are also asked to consider whether the trial court abused its discretion when it ruled that defendant's prior convictions were not too remote and were thus admissible for purposes of impeachment. In a pretrial proceeding, the judge determined that the defendant's five prior indictable convictions would be admissible for impeachment purposes.

N.J.R.E. 609. The judge ordered that the convictions be sanitized. Defendant's convictions were in 1994, 1998, two in 1999, and 2006.

"[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, that is, there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2000) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). "Trial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under the abuse of discretion standard." State v. Buda, 195 N.J. 278, 294 (2008) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008); Brenman v. Demello, 191 N.J. 18, 31 (2007)). In State v. Sands, the Court stated: We hold that whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge. His discretion is a broad one which should be guided by the considerations which follow. Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant. [76 N.J. 127, 144 (1978).]

Under N.J.R.E. 609, New Jersey permits the admission of "a witness's prior convictions . . . for impeachment purposes despite the obvious prejudice that flows from such evidence, particularly for a criminal defendant." State v. Hamilton, 193 N.J. 255, 256 (2008). The Court has declined to abandon N.J.R.E. 609 in favor of the approach utilized in Federal Rule of Evidence 609 which employs a bright line against the admission of a conviction which is more than ten years old. State v. Harris, 209 N.J. 431, 445 (2012). We now hold that there was no abuse of discretion in admitting the prior convictions.

Defendant next contends that the trial court erred in admitting his statement made to Sergeant Ronald Moten of the prosecutor's office after defendant returned the rental car used by the persons involved in the homicide. N.J.R.E. 803(b)(1) provides that a statement offered against a party which is the party's own statement is not excluded by the hearsay rule. "Generally, as long as there are no Bruton,*fn1 Miranda,[*fn2 ] privilege or voluntariness problems, and subject to N.J.R.E. 104(c), the State may introduce at a criminal trial any relevant statement made by a defendant." State v. Covell, 157 N.J. 554, 572 (1999) (footnote omitted).

Moten, the State's last witness, stated that defendant returned the car on August 20, 2005. Moten showed defendant a picture of Willis, whose name was on the rental agreement, and asked if defendant knew him. Moten stated that defendant denied knowing him. At this time, defendant was not in custody, nor had he been administered his Miranda rights.

On January 31, 2006, defendant was again interviewed.*fn3

Moten stated that at that time defendant told him he did know Willis. Defendant further stated that the two of them were members associated with a gang known as the Bloods and that they had been in contact.

That was the substance of Moten's direct testimony concerning statements made by defendant. Defendant did not object to this testimony. Previous witnesses had also testified concerning defendant's gang membership.

Moten was then called as a witness by defendant. Moten stated that the first interview of defendant took place at the Camden Police Department and lasted between thirty and forty-five minutes. Moten testified that defendant said he had no knowledge of the incident. Moten related that in the second interview, defendant again asserted he had no knowledge of the incident. Both statements are self-serving.

We recognize that N.J.R.E. 803(b)(1) ordinarily requires an N.J.R.E. 104(c) hearing to determine the admissibility of a party's statement. However, in this case, defendant's statement was not part of a written document, the gang reference was cumulative and there is nothing to suggest that Moten's testimony concerning defendant's statements prejudiced the defendant. In these circumstances, we do not regard the absence of a hearing to have been a critical omission.

Defendant nevertheless asserts that his conviction must be reversed because the jury was not instructed that it had to find that defendant's inculpatory statements were credible. Defendant further contends that the judge improperly failed to instruct the jury that oral statements must be carefully scrutinized because they may be the product of miscommunication. See State v. Hampton, 61 N.J. 250, 263-64 (1972); State v. Kociolek, 23 N.J. 400 (1957); N.J.R.E. 104(c). We find no plain error warranting reversal. See State v. Jordan, 147 N.J. 409, 417-22, 425-28, (1997); see also State v. Chew, 150 N.J. 30, 81-83 (1997).

There was substantial evidence clearly establishing defendant's guilt in addition to his statements. Both Willis and Coombs inculpated defendant. In addition, other witnesses and the ballistic evidence corroborated their testimony. Furthermore, in his final charge to the jury, the judge instructed the jurors as to the limited purpose of the defendant's gang membership, their function in deciding credibility, and to consider the credibility of all testimony, which necessarily included the testimony regarding defendant's statements. As in State v. Jordan, supra, 147 N.J. 409, the omission of portions of the charge in defendant's case could not have affected the result.

Lastly, defendant challenges the sentences imposed on the crimes for which he was convicted. Defendant claims that, based on the aggravating factors considered by the trial court, his sentence is excessive, and that the judge double counted aggravating factor, N.J.S.A. 2C:44-1(a)(5).

When sentencing a defendant, the "trial court must determine whether incarceration is appropriate, . . . decide on the appropriate sentence, . . . [and] decide whether a period of parole ineligibility is required." State v. Kruse, 105 N.J. 354, 358 (1987); State v. Roth, 95 N.J. 334, 358-59 (1984). The court must place its reasons on the record for the sentence imposed and determine the aggravating and mitigating factors. State v. Natale, 184 N.J. 458, 488 (2005). The court must also balance the relevant factors and explain how it arrived at the sentence. State v. Bieniek, 200 N.J. 601, 608 (2010).

Our review of a sentence is deferential, and we will only disturb a sentence where there is sufficient evidence to demonstrate "such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 364. Sentences should not be reduced on appeal unless there was a clear abuse of discretion. State v. Thomas, 195 N.J. 431, 437 (2008); State v. Pierce, 188 N.J. 155, 166 (2006); State v. Kromphold, 162 N.J. 345, 355 (2000).

"If a trial court follows the sentencing guidelines, an appellate court ought not second-guess the sentencing court's decision. An appellate court 'does not sit to substitute its judgment for that of the trial court.'" State v. Jabbour, 118 N.J. 1, 5-6 (1990). The trial judge usually sentences a defendant "within the statutory range after identifying and weighing the applicable mitigating and aggravating factors." Natale, supra, 184 N.J. at 466. The Code provides for a "strong judicial role" in sentencing. Id. at 486 (citing Roth, supra, 95 N.J. at 354, 357-60).

The sentence was based on three aggravating factors: aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk defendant will commit another offense; factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior record, which the court found "very serious;" and factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence. The court also found that aggravating factor five, N.J.S.A. 2C:44-1(a)(5), applied because there was a substantial likelihood that defendant was involved in organized criminal/gang activity. However, the judge did not put any weight on that factor. The judge stated that aggravating factor five is "not going to have any impact whatsoever on my sentence." The judge found no mitigating factors.

The statutory window for sentencing a defendant for first-degree felony murder, N.J.S.A. 2C:11-3a(3), ranges from thirty years to life imprisonment. N.J.S.A. 2C:11-3b. Under NERA, when sentencing a defendant convicted of first-degree felony murder, a court "shall fix a minimum term of [eighty-five percent] of the sentence imposed, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:43-7.2(a) and (d)(1).

We are satisfied that there is substantial credible

evidence in the record to support the trial court's finding of aggravating factors three, six, and nine, as well as the absence of any mitigating factors. Having reviewed defendant's arguments with respect to the excessiveness of the sentence, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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