STATE OF NEW JERSEY VS. DEMARCUS DREW (12-09-2526 AND 11-06-1382, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5494-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEMARCUS DREW,
Defendant-Appellant.
______________________________
Submitted September 19, 2017 – Decided August 8, 2018
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment Nos.
12-09-2526 and 11-06-1382.
Joseph E. Krakora, Public Defender, attorney
for appellant (Margaret McLane, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Christopher S. Porrino, Attorney General,
attorney for respondent (Arielle E. Katz,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Demarcus Drew challenges his July 9, 2015 judgment
of conviction in Indictment No. 12-09-2526. We affirm.
I.
Defendant and Lisa Drew were dating for about six years, but
titled themselves as husband and wife.1 Lisa's son Dennis Harris
lived with them in a second-floor apartment in Camden.
Harris testified as follows. Lisa let it be known to
defendant that she was having a relationship with Marvin Simpson,
known as Saleem. Defendant was jealous and angry, and did not
want that relationship to continue. Defendant and Simpson had a
violent relationship. They had a fight in which defendant
"wouldn't stop punching" Simpson.
Harris testified that a "couple days" after the fight, in the
pre-dawn hours of November 4, 2011, Harris awoke to hear Lisa
screaming his name. Harris looked out the window. Harris could
see defendant "perfectly" because defendant was standing right
underneath a lamppost. Harris saw defendant standing with his arm
out holding a gun, heard six shots fired, saw flashes from the
gun, and saw a man fall to the ground. Harris went outside and
saw defendant running across a field carrying a revolver. Lisa
was huddled over the fallen man, yelling out "Saleem."
At around 4:45 a.m., the police arrived and found Simpson
being held by Lisa, who was hollering. Simpson was taken to the
1
We refer to her as "Lisa" to avoid confusion.
2 A-5494-14T1
hospital. Detective Virginia Fallon processed the crime scene.
She found no shell casings, and testified a revolver does not
eject shell casings. No gun was ever recovered.
Harris was taken to the prosecutor's office, where he
identified a photograph of defendant as the man he had seen with
the gun. Harris initially denied he had seen the shooting. He
later testified he did so because defendant "was still on the
loose" and he was scared for Lisa and himself.
Wesley Ruiz testified as follows. He was with Simpson during
the pre-dawn hours of November 4, smoking marijuana and drinking.
While they went for a walk, Simpson had Ruiz knock at defendant's
house, and yell upstairs for Simpson's female friend who lived
there. Ruiz saw a man come to the window and say "don't come back
here." The man was "dark skinned, skinny" with a "short haircut."
Ruiz testified that Simpson went to the house and yelled
upstairs for his female friend. The man came to the window again
and slammed it shut. The man then came running out of the house
with a gun, got really close to Simpson, and started shooting.
Ruiz ran. He heard three or four shots, perhaps more.
Later that day, detectives showed Ruiz a photo array, and a
video of the procedure was shown to the jury. Ruiz testified that
he was unable to make a positive identification, but indicated one
photo "looked close" and "look[ed] something like him with an
3 A-5494-14T1
Afro, but he didn't have no Afro." The photo showed defendant
with an Afro. Ruiz was unable to identify defendant at trial.
Simpson died from his five gunshot wounds. Defendant was
indicted for murder and other offenses. On December 7, 2011,
deputy U.S. Marshals in Chicago arrested defendant, who was
accompanied by Lisa.
Benjamin Alford testified defendant was housed with him at
the county jail, and they discussed defendant's case. Alford
testified that defendant said: he had a confrontation with a man,
and told him to stay away from his house; the man showed up at his
house one night; he chased and shot the man with a .22 revolver;
and he left for Chicago that day with the gun. Alford testified
against defendant under a cooperation agreement which gave him
five years in prison for robbery.
The jury acquitted defendant of murder, but convicted him of
second-degree manslaughter committed in the heat of passion
resulting from reasonable provocation, N.J.S.A. 2C:11-4(b)(2);
second-degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4; and second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5. The trial court sentenced him to a
total of twenty years in prison for those convictions.
Defendant appeals, arguing:
4 A-5494-14T1
POINT I - THE COURT FAILED TO CONDUCT THE THIRD
STEP OF THE GILMORE ANALYSIS, REQUIRING
REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT II – THE COURT ERRONEOUSLY ADMITTED A
WITNESS'S NON-IDENTIFICATION, AND THE
PROSECUTOR IMPROPERLY ARGUED TO THE JURY THAT
THIS INADMISSIBLE NON-IDENTIFICATION ACTUALLY
PROVED THAT THE DEFENDANT WAS THE SHOOTER.
THESE ERRORS REQUIRE REVERSAL OF DEFENDANT'S
CONVICTIONS. (Partially Raised Below).
POINT III – THE DEFENDANT WAS DENIED A FAIR
TRIAL DUE TO THE ABSENCE OF JURY INSTRUCTIONS
ON HOW TO EVALUATE THE TESTIMONY OF A
COOPERATING WITNESS. (Not Raised Below).
POINT IV – DEFENDANT WAS PREJUDICED BY THE
TRIAL COURT'S FAILURE TO CHARGE THE JURY
REGARDING THE PROPER ASSESSMENT OF STATEMENTS
ALLEGEDLY MADE BY HIM. (Not Raised Below).
POINT V – THE COURT FAILED TO PROPERLY APPLY
THE YARBOUGH FACTORS SUCH THAT DEFENDANT'S
SENTENCE IS MANIFESTLY EXCESSIVE.
II.
Defendant's first challenge concerns the prosecutor's
exercise of peremptory challenges during jury selection. "[T]he
opponent of the strike bears the burden of persuasion regarding
racial motivation, and a trial court finding regarding the
credibility of an attorney's explanation of the ground for a
peremptory challenge is entitled to great deference." State v.
Thompson, 224 N.J. 324, 344 (2016) (quoting Davis v. Ayala, __
U.S. __, __, 135 S. Ct. 2187, 2199 (2015)). "[A] trial court's
ruling on the issue of discriminatory intent must be sustained
5 A-5494-14T1
unless it is clearly erroneous." Ibid. (quoting Snyder v.
Louisiana, 552 U.S. 472, 477 (2008)). We must hew to our standard
of review.
During voir dire, an African-American potential juror, No.
197, testified he had a brother who had been arrested for multiple
charges. The prosecutor exercised a peremptory challenge. After
the next juror was questioned, there was a sidebar. Defense
counsel noted Juror No. 197 was African-American and "just ask[ed]
for the purposes of the record if there was any other reason" for
excusing him.2 The prosecutor responded:
[A]s he sat down, right before we got started,
he looked over at me with a weird smile, and
he made a motion with his finger across –
across his neck back and forth as if to make
the symbol of like cutting somebody's head off
or sawing someone's head off. . . . It made
me feel very uncomfortable that he was sort
of making motions to me and . . . I struck
him.
The trial court asked defense counsel if he saw any gestures, and
counsel replied: "I'm not challenging whether he saw it, but I
didn't."
Meanwhile, that next potential juror, No. 375, a Hispanic-
American female, had been asked: "If the State merely produces
2
The transcript attributes all the statements by attorneys during
this sidebar to "Unidentified," but context supports the
attributions given in text here.
6 A-5494-14T1
testimonial evidence, which is the testimony of individuals, and
doesn't have things like fingerprints, and you were satisfied
beyond a reasonable doubt, could you return a verdict in favor of
– of the State?" She answered "Possibly," "I guess no," and then
"No." When asked again, she replied "No," saying "[i]t would have
to be more than testimony – [it] would have to be scientific,
things of that nature." When asked a third time, she said "No,"
and then: "Without physical evidence? I don't know, . . . I would
probably have to hear the testimony." The trial court then asked:
"Could you follow my instructions as to the law in the case and
apply that law to the facts that you find?" She said "Yes."
At the same sidebar, the prosecutor challenged Juror No. 375
because "[s]he specifically said she couldn't convict someone
without physical evidence." The trial court said it was not going
to excuse Juror No. 375 for cause because she said she could listen
to the testimony and follow the court's instructions. The
prosecutor responded that her statement was "enough of a reason
. . . to use one of my peremptories." The court stated "Okay."
The prosecutor excused her with his next peremptory challenge.
An African-American potential juror, No. 893, said he had a
problem reading, saying "I need help with it" and "I understand
verbal. It's just reading." He also said that he had family
members "doing time right now," and that some of them were not
7 A-5494-14T1
"dealt with fairly by the court system and the prosecutor." Asked
to explain, he said: "Like my uncle. My uncle, he's locked up
right now. They gave him . . . a long charge to make because they
gave him a burglary charge" though "he wasn't really on the
premises. . . . I think it was a setup type thing."
The trial court invited "followup questions" regarding Juror
No. 893, and the prosecutor asked the juror whether his feeling
that his uncle "was charged unfairly with this burglary [would]
affect your ability to judge the police" witnesses or the
"witnesses from the Prosecutor's Office," and the juror indicated
it would not. The prosecutor also asked the juror whether he
would "be able to read for yourself" the written jury instructions
and understand them. The court interrupted and said it "would
verbally give those instructions," and the juror responded he
could "handle that."3
The prosecutor excused Juror No. 893 with his next peremptory
challenge, and defense counsel objected. At sidebar, the
prosecutor explained: "Judge, there's two reasons for [excusing]
him. His reading problem is number one." The prosecutor noted
that he "misinterpreted the first question about a police officer"
3
The transcript attributes the questions to "Unidentified," but
context supports their attributions to the prosecutor.
8 A-5494-14T1
on the jury questionnaire,4 and seemed not to comprehend a lot of
those written questions. The prosecutor stressed: "the jury
instructions . . . are given to jurors in writing, and if he can't
read the simple questions on the jury questionnaire form, and if
he can't read the simple questions on the jury questionnaire form,
how is he going to read the complicated legal instructions[?]"
The prosecutor added: "Number two, he said his uncle was unfairly
charged with burglary by the police." The trial court said: "All
right." The jury was seated without further peremptory challenges
by the prosecutor or further comment by defense counsel.
The United States and New Jersey Constitutions prohibit
prosecutors from exercising peremptory challenges against
potential jurors on account of their race or ethnicity. Thompson,
224 N.J. at 339-440 (citing Batson v. Kentucky, 476 U.S. 79, 89
(1986), and State v. Gilmore, 103 N.J. 508, 524-29 (1986)). In
Gilmore, our Supreme Court adopted its analysis from People v.
Wheeler, 583 P.2d 748 (1978). Gilmore, 103 N.J. at 530-39. As
modified in State v. Osorio, 199 N.J. 486 (2009), that analysis
provides for three steps. First:
step one requires that, as a threshold matter,
the party contesting the exercise of a
4
That question asked "whether you'd give greater or lesser weight
to the testimony of a police officer merely because of his or her
status as a police officer." The juror answered "Yes." When
asked to explain, he said: "by that I actually meant to say no."
9 A-5494-14T1
peremptory challenge must make a prima facie
showing that the peremptory challenge was
exercised on the basis of race or ethnicity.
That burden is slight, as the challenger need
only tender sufficient proofs to raise an
inference of discrimination.
Second, if the challenger meets that burden,
step two is triggered, and the burden then
shifts to the party exercising the peremptory
challenge to prove a race- or ethnicity-
neutral basis supporting the peremptory
challenge. In gauging whether the party
exercising the peremptory challenge has acted
constitutionally, the trial court must
ascertain whether that party has presented a
reasoned, neutral basis for the challenge or
if the explanations tendered are pretext.
Third, if the trial court believes a reasoned, neutral basis
has been tendered
the third step is triggered, requiring that
the trial court weigh the proofs adduced in
step one against those presented in step two
and determine whether, by a preponderance of
the evidence, the party contesting the
exercise of a peremptory challenge has proven
that the contested peremptory challenge was
exercised on unconstitutionally impermissible
grounds of presumed group bias.
[Id. at 492-93.]
Here, the prosecutor immediately offered to state his
reasons, so the trial court did not have to rule on step one.5 In
5
"[T]he better practice is to allow the State to make a record of
its reasons for exercising its peremptory challenges, especially
where, as here, the prosecutor offers to do so". Thompson, 224
N.J. at 347.
10 A-5494-14T1
step two, it is undisputed that the prosecutor "prov[ided] a race-
or ethnicity-neutral basis supporting [each] peremptory challenge"
raised by defendant. Osorio, 199 N.J. at 492. However, defendant
contends the trial court failed to conduct the third step of the
analysis.
The discussion about Juror No. 197 and Juror No. 375 occurred
at the same sidebar. At the end of that sidebar, after hearing
the prosecutor's explanations for excusing both jurors, the trial
court stated "Okay," and resumed jury selection. At the sidebar
addressing Juror No. 893, after hearing the prosecutor's
explanation for excusing him, the court stated "All right," and
resumed jury selection. It is a reasonable conclusion from the
court's statements that the court credited the prosecutor's
explanations, found each was "a reasoned, neutral basis for the
challenge," and that defendant had failed to "prove[] that the
contested peremptory challenge was exercised on unconstitutionally
impermissible grounds of presumed group bias." Id. at 492-93.
The record strongly supports this conclusion. First, "the
proofs adduced in step one" by defendant were weak. Id. at 429.
Defense counsel merely noted Juror No. 197 was African-American
and "just ask[ed] for the purposes of the record if there was any
other reason" for excusing him.
11 A-5494-14T1
Defense counsel also proffered: "there was another juror
struck that was African-American. The only two that were on the
pool." However, the prosecutor referred to his notes and responded
that, before Juror No. 197, he had exercised six peremptory
challenges against "five white females [and] one Hispanic female."
Defense counsel said: "Okay, I thought she was," and reference was
made to "Juror number six," referring to a Hispanic-American female
who was sitting in the sixth seat in the jury box when the
prosecutor excused her earlier.6 As Juror No. 893 was also
African-American and remained in the pool, it appears defense
counsel was mistaken in asserting that the prosecutor had excused
another African-American potential juror before Juror No. 197.
Defense counsel proffered no other evidence concerning the
prosecutor's peremptory challenges.
The first-step standard "can be satisfied in various ways,"
Osorio, 199 N.J. at 504, including:
(1) that the prosecutor struck most or all of
the members of the identified group from the
venire; (2) that the prosecutor used a
disproportionate number of his or her
peremptories against the group; (3) that the
prosecutor failed to ask or propose questions
to the challenged jurors; (4) that other than
their race, the challenged jurors are as
6
That potential juror, Juror No. 883 (sometimes transcribed as
838), testified she "would need fingerprints or very factual
information" to convict. No objection has been made to the
prosecutor excusing that potential juror.
12 A-5494-14T1
heterogeneous as the community as a whole; and
(5) that the challenged jurors, unlike the
victims, are the same race as defendant.
[State v. Watkins, 114 N.J. 259, 266 (1989)
(citing Gilmore, 103 N.J. at 536 (citing
Wheeler, 583 P.2d at 764).]
Based on defense counsel's proffer and the striking of Juror
No. 197 and Juror No. 893, it can be inferred that the prosecutor
excused from the venire the only two African-Americans, who were
of the same race as defendant. However, none of the other factors
were present. The prosecutor used most of his peremptory
challenges (five of nine) on Caucasians, two on Hispanics, and two
on African-Americans. Cf. Thompson, 224 N.J. at 346 ("the
prosecutor exercised seven of the nine peremptory challenges to
strike African Americans"); Osorio, 199 N.J. at 507-08 ("the
prosecution's first six peremptory strikes were of members of a
minority group"); Gilmore, 103 N.J. at 540 (citing the prosecutor's
striking of all seven black jurors in its eleven strikes).
Moreover, the prosecutor proposed questions and the trial
court conducted the questioning of the potential jurors.7 When
the court invited follow-up questions regarding Juror No. 893, the
prosecutor questioned him about his reading troubles and feelings
7
Before jury selection, the trial court told counsel that they
could follow up with "one or two questions," but that the court
did not "want a long interrogation."
13 A-5494-14T1
against the prosecution. The jurors at issue were not
heterogeneous, but included a Hispanic-American who was not of the
same race as defendant, as well as "both men and women . . . of a
variety of . . . occupations, and social or economic conditions."
State v. Pruitt, 438 N.J. Super. 337, 340 n.2 (App. Div. 2014)
(quoting Wheeler, 583 P.2d at 764). Finally, like defendant, the
victim was also African-American, as was Lisa. Cf. Gilmore, 103
N.J. at 536 (stressing it is "'especially'" important if the victim
is of the same race as the non-excluded jurors) (citation omitted).
Second, the reasons offered by the prosecutor were strong and
undisputed. Defense counsel did not dispute that Juror No. 197
had given the prosecutor a weird smile and then drew his finger
across his neck in a slashing motion before questioning began.
Cf. Osorio, 199 N.J. at 496-97 (trial counsel contested whether
potential jurors high-fived each other). It was also undisputed
that such a throat-slashing gesture was a race-neutral and valid
reason for striking the juror. State v. Clark, 324 N.J. Super.
558, 571 (App. Div. 1999) (upholding the strike of a potential
juror who "refused to look at" the prosecutor); see Wheeler, 583
P.2d at 760-61.
The prosecutor's reasons for striking Juror No. 375 were
supported by the record, race-neutral, and valid. Her testimony
that she would need scientific or physical evidence to convict
14 A-5494-14T1
raised a valid concern and was relevant to this case, which lacked
any scientific or physical evidence connecting defendant to the
crime, and instead was based on eyewitness testimony and testimony
about defendant's admissions. See State v. McDougald, 120 N.J.
523, 556 (1990) (upholding strikes of potential jurors who
"express[ed] some hesitancy or reluctance to" impose the death
penalty).
The prosecutor's reason for striking Juror No. 893 was also
supported by the record, race-neutral, and valid. His trouble
with reading was plainly relevant to his ability to serve as a
juror. N.J.S.A. 2B:20-1 (requiring jurors to "be able to read and
understand the English language"). He gave no reason to conclude
he would be able to read the written jury instructions required
to be given the jury in criminal cases. R. 1:8-8(b)(2). His
belief his incarcerated uncle had been treated unfairly by the
prosecution raised the concern whether he would decide based on
the evidence in this case or bias against the prosecution. See
State v. Lewis, 389 N.J. Super. 409, 420 (App. Div. 2007)
(upholding the strike of a potential juror whose husband had
received a sentence she "believed was excessive").
"In order to rebut the defendant's prima facie case, the
prosecution's justifications of its peremptory challenges need not
rise to the level justifying challenges for cause." Gilmore, 103
15 A-5494-14T1
N.J. at 538. "'[T]here are any number of bases on which a party
may believe, not unreasonably, that a prospective juror may have
some slight bias that would not support a challenge for cause but
that would make excusing him or her desirable.'" Ibid. (citation
omitted).
Here, the prosecutor's reasons were strong and reached or
approached the level justifying a challenge for cause. Moreover,
they were all "'reasonably relevant to the particular case on
trial or its parties or witnesses.'" Ibid. (citation omitted).
The evidence supported that the prosecutor's explanations were
"genuine and reasonable grounds for believing that potential
jurors might have situation-specific biases that would make
excusing them reasonable and desirable," and there was no
indication they were "'sham excuses belatedly contrived to avoid
admitting acts of group discrimination.'" Osorio, 199 N.J. at
504-05 (quoting Gilmore, 103 N.J. at 537-38).
Third, the strong reasons offered by the prosecutor in step
two outweighed the weak proffer by the defendant in step one.
Defendant does not contend the trial court should have found it
inappropriate to strike Juror No. 197 after he made the slashing
gesture across his throat, or to strike Juror No. 893 because he
could not read the written jury instructions and believed the
prosecutor's office had unfairly imprisoned his uncle. The valid
16 A-5494-14T1
reasons for striking those two African-American potential jurors
defeated defendant's step-one proffer that the prosecutor has
stricken the two African-Americans in the jury pool.
Fourth, defendant did not contest the credibility, validity,
or adequacy of the prosecutor's reasons. After the prosecutor
stated his reasons, defendant made no proffer and voiced no
complaint, either during jury selection, at the conclusion of jury
selection, or in a motion during or after trial. Nor did defendant
ever request any of the various forms of relief available. See
State v. Andrews, 216 N.J. 271, 293 (2013).
On appeal, defendant contends that the trial court should
have invalidated the striking of the Hispanic-American prospective
juror. He argues the court should have found the prosecutor's
reasons were invalid because Juror No. 375 said "Yes" when asked:
"Could you follow my instructions as to the law in the case and
apply that law to the facts that you find?" However, she already
testified that she would not find facts based solely on testimony,
that there would have to be scientific evidence, and that she did
not know whether she could convict without physical evidence. Her
answer to a question that did not mention testimonial, scientific,
or physical evidence did not contradict let alone negate her
earlier testimony. Even if she had contradicted her earlier
testimony, the prosecutor would not have been required to credit
17 A-5494-14T1
such a denial, but could strike her rather than take the chance
she would not fairly consider his testimonial case.
Defendant also argues on appeal that there was no evidence
"whether the State has applied the proffered reasons 'even-
handedly to all prospective jurors'; the 'overall pattern' of the
use of peremptory challenges; and 'the composition of the jury
ultimately selected to try the case.'" Thompson, 224 N.J. at 343
(quoting Osorio, 199 N.J. at 506). However, our Supreme Court in
Thompson made clear that "[t]his analysis presumes that a defendant
will present information beyond the racial makeup of the excused
jurors." Id. at 348. "Nothing in Gilmore or Osorio placed the
onus on the court to comb the record for instances where a juror
selected provided answers similar to the reasons the State
proffered for its use of a peremptory challenge; it is the
defendant's obligation to do so." Id. at 349. Here, as in
Thompson, the "failure of defendant to counter any of the
prosecutor's suggestions or raise an 'uneven application' argument
made it impossible for the court to 'include in its findings any
of the third-step considerations' outlined in Osorio." Id. at
350; see Pruitt, 438 N.J. Super. at 344.
Even now, defendant does not point to any juror who made a
similar unsettling gesture as Juror No. 197, had difficulty reading
and felt the prosecutor's office was unfair like Juror No. 893,
18 A-5494-14T1
or demanded scientific or physical evidence like Juror No. 375,
and yet was seated. Our review of the transcripts reveals no such
jurors. All potential jurors who initially expressed some concern
about convicting based on only testimonial evidence either were
excused, or in subsequent questioning expressly testified they
could do so.8
In sum, there was ample evidence that the prosecutor had
offered a credible, "reasoned, neutral basis for [each]
challenge," and that defendant had failed to "prove[] that the
contested peremptory challenge was exercised on unconstitutionally
impermissible grounds of presumed group bias." Osorio, 199 N.J.
at 492-93. That strong evidence rebutted defendant's weak prima
facie offering, and defendant offered the trial court no evidence,
argument, or complaint to the contrary. The trial court's
statements "Okay" and "All right" after the prosecutor gave his
reasons, and its resumption of jury selection, showed the court
credited the prosecutor's non-discriminatory reasons and rejected
any claim of discrimination. "'[I]f . . . the trial court believes
the prosecutor's nonracial justification, and that finding is not
clearly erroneous, that is the end of the matter.'" Thompson, 224
N.J. at 340 (citation omitted).
8
One juror clarified that her concern was about convicting for
murder if no body had been found, which was not the case here.
19 A-5494-14T1
Nonetheless, the trial court's statements "Okay" and "All
right" were not what we or the Supreme Court had in mind when we
described the third-step findings. "[T]he trial court must make
specific findings with respect to the . . . proffered reasons for
exercising any disputed challenges. . . . Moreover, it is
essential that separate findings be made with respect to each
disputed challenge." Osorio, 199 N.J. at 506 (quoting State v.
Clark, 316 N.J. Super. 462, 473-74 (App. Div. 1998)). However,
for the reasons set forth above, defendant was not prejudiced by
the lack of more specific findings.
As there was no evidence that the prosecution's strikes of
the three potential jurors were improper, there was no evidence
he was denied "the right to trial by an impartial jury drawn from
representative cross-section of the community." Gilmore, 103 N.J.
at 543. A denial of the cross-section requirement "may not be
treated as harmless error." Id. at 544. However, the lack of
more detailed findings, without more, is not such a denial, and
"a cross-section violation should not be assumed." State v.
Timmendequas, 161 N.J. 515, 665 n.8 (1999). "Although a violation
of the cross-section requirement is not subject to a harmless
error analysis, other constitutional violations with the potential
to lead to a cross-section violation often will be" harmless.
Ibid. Here, the lack of specific findings is harmless.
20 A-5494-14T1
"Therefore, reversal and remand for a new trial [i]s not
appropriate." See Thompson, 224 N.J. at 337-38, 350 (reversing
our ruling that a trial court failed to conduct a third-step
analysis).
III.
Defendant makes other claims of trial error, but he did not
object to those alleged errors, and thus he must show plain error.
Under the plain error standard, "defendant has the burden to show
that there is an error, that the error is 'clear' or 'obvious,'
and that the error has affected 'substantial rights.'" State v.
Chew, 150 N.J. 30, 82 (1997) (quoting, and ruling "[o]ur law is
the same" as, United States v. Olano, 507 U.S. 725, 734 (1993)).
An error is not clear or obvious "unless the error is clear under
current law" at the time of appellate consideration. Olano, 507
U.S. at 734; see Henderson v. United States, 568 U.S. 266, 279
(2013); Johnson v. United States, 520 U.S. 461, 468 (1997). To
show an effect on substantial rights, defendant has the burden of
proving the error was "clearly capable of producing an unjust
result." R. 2:10-2.
A.
Defendant claims on appeal that the video recording of the
photo array procedure was not an identification under N.J.R.E.
803(a)(3), and thus was improperly admitted at trial.
21 A-5494-14T1
"[C]onsiderable latitude is afforded a trial court in determining
whether to admit evidence, and that determination will be reversed
only if it constitutes an abuse of discretion." State v.
Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). Moreover,
defendant did not object to the admission of the video at trial,
so he must show plain error.9
N.J.R.E. 803(a) provides that the hearsay rule does not
exclude "[a] statement previously made by a person who is a witness
at a trial" that "is a prior identification of a person made after
perceiving that person if made in circumstances precluding
unfairness or unreliability." N.J.R.E. 803(a), (a)(3). "Prior
identifications are admissible because, being made when the events
and sensory impressions are fresh in the mind of a witness, they
are likely to be correct." State v. Matlack, 49 N.J. 491, 498
(1967). If the person making the identification is a witness at
trial, that person's testimony, third-party testimony, and
exhibits recording the identification are all admissible. Id. at
9
Defendant did not raise N.J.R.E. 803(a)(3) at the pretrial Wade
hearing. See United States v. Wade, 388 U.S. 218 (1967). "A Wade
hearing is required to determine if the [police] identification
procedure was impermissibly suggestive and, if so, whether the
identification is reliable." State v. Micelli, 215 N.J. 284, 288
(2013). The motion judge rejected defendant's claim that the
detective was suggestive by putting defendant's photo off to the
side face up while Ruiz was looking at the next photo. Defendant
does not renew that Wade claim on appeal.
22 A-5494-14T1
499-500; see State v. Lazo, 209 N.J. 9, 25 (2012) (admitting a
composite sketch).
Defendant contends Ruiz did not make any identification on
the video. However, the video recorded Ruiz as looking at
defendant's photo and saying "[t]hat looks something like him,"
referring to the shooter. Ruiz repeatedly said "That looked like
him right there." He reiterated: "That look like him right there,
but he didn't have no Afro"; and that "look something like him
because his eyes."
"Testimony that a defendant looks like or resembles the person
observed by the witness, or is of the same size or general
appearance, or has physical features fairly close to the accused
is competent and may be sufficient when considered with the other
evidence." State v. Lutz, 165 N.J. Super. 278, 291 (App. Div.
1979); accord State v. Swed, 255 N.J. Super. 228, 247 (App. Div.
1992). Here, there was other evidence, particularly Harris'
positive identification of defendant.
Defendant notes the detectives marked Ruiz as having made "no
identification," but they also marked that Ruiz had said
defendant's photo resembled the shooter. In any event, "[t]he
prior identification need not be unequivocal to be admissible[.]"
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment
3 on N.J.R.E. 803(a) at 846 (2018) (citing Lutz and Swed); see
23 A-5494-14T1
Swed, 255 N.J. Super. at 247 (admitting a "somewhat tenuous"
identification). In Lutz, the witness "could not definitely
identify any of the photographs" in the photo array. 165 N.J.
Super. at 287. We reversed a ruling that "no identification" had
been made, and we ruled the witness's
testimony was not so utterly lacking in
probative value as to require the trial judge
to reject it as a matter of law. It is true
that the witness was uncertain at the
photographic displays and could not make an
unequivocal identification of defendant. But
the lack of a "positive" identification did
not invalidate her testimony in its entirety.
An identification can be absolute or qualified
. . . . The lack of certainty on the part of
the identifying witness, or the indefiniteness
of the identification, goes to the weight to
be given the testimony and to its credibility.
These are matters for the jury to resolve, not
the judge.
[Id. at 290 (citations omitted).]
Defendant also cites alleged denials by Ruiz on the video
which appears in the transcript of the pretrial Wade hearing but
not of the trial. Even assuming we can consider the earlier
transcript, we reject defendant's claim of trial error. He cites
Ruiz's comment on the video that even though defendant's face
resembled the shooter's face, "he didn't have no Afro, so that
wasn't him." However, Ruiz's observation of the facial resemblance
remained relevant and admissible even if he could not positively
identify defendant because the haircut differed. Defendant also
24 A-5494-14T1
cites Ruiz's comment: "That ain't him. He had dark tone, none of
them have dark tone." It is unclear from either transcript which
photo(s) Ruiz was referencing, and defendant failed to supply us
with the video. In any event, the resemblance in facial features
was still relevant and admissible.
Ruiz testified that the photo of defendant with his hair in
an Afro in the photo array "looked close" and "look[ed] something
like him with an Afro, but he didn't have no Afro." Defendant had
the opportunity to cross-examine Ruiz regarding the prior
identification on the video. Its admission was not an abuse of
discretion, let alone plain error. "The worth thereof was for the
fact finder, not for the court," to determine. State v. Farrow,
61 N.J. 434, 452 (1972).
B.
Defendant argues on appeal that the prosecutor improperly
commented on Ruiz's prior identification in his closing argument.
"[W]hen counsel does not make a timely objection at trial, it is
a sign 'that defense counsel did not believe the remarks were
prejudicial.'" State v. Pressley, 232 N.J. 587, 593-94 (2018)
(citations omitted).
The prosecutor argued that when Ruiz was shown the photo
array,
25 A-5494-14T1
he could not make a positive identification
of the shooter, but remember what he did on
photo number 3, of all of the photos that were
shown to him, eight different photos, he
stopped at number 3, and he basically said —
and you saw the video — nah, yeah, that's him,
no, that's not him, and he kind of waffled
back and forth, said he couldn't be for sure.
But what he did do, I suggest to you, same day
as the incident, is gave a partial
identification of the defendant in photo
number 3. . . .
And what he did was says [sic] that's the guy,
looks like him, he has the same eyes. Of all
the eight photographs, which one does he kind
of pick? He picks photo number 3, the
defendant.
Defendant now claims the phrases "partial identification" and
"kind of pick[ing]" defendant's photo misrepresented Ruiz's
testimony. However, those phrases, particularly in the context
of the prosecutor's entire argument, reflected and were
"reasonably related" to Ruiz's statements and actions on the video.
Id. at 593 (citation omitted). Moreover, the trial court
repeatedly instructed the jury that the "arguments, statements,
remarks, openings and summations of counsel are not evidence and
must not be treated as evidence," and that the jurors "must rely
solely on [their] understanding and recollection of the evidence."
"We presume the jury followed the court's instruction." State v.
Smith, 212 N.J. 365, 409 (2012)). Defendant fails to show plain
error, as he cannot show the prosecutor's argument was "'clearly
26 A-5494-14T1
and unmistakably improper' and 'so egregious' that it deprived
defendant of the 'right to have a jury fairly evaluate the merits
of his defense.'" Pressley, 232 N.J. at 593-94 (citation omitted).
IV.
Defendant must also show plain error regarding his two claims
of omissions from the trial court's final charge. At the charge
conference, defense counsel told the court she did not "have any
comments regarding the proposed charge," that the proposed
instructions she submitted "appear to be all covered" in the
court's proposed charge, and she "didn't have any changes."
Moreover, defendant did not object at the court's charge as
delivered.
Courts "review for plain error the trial court's obligation
to sua sponte deliver a jury instruction when a defendant does not
request it and fails to object at trial to its omission." State
v. Alexander, 233 N.J. 132, 141-42 (2018). Moreover,
"[d]efendant's failure to 'interpose a timely objection
constitutes strong evidence that the error belatedly raised here
was actually of no moment.'" State v. Tierney, 356 N.J. Super.
468, 481 (App. Div. 2003) (citation omitted). Where there is no
objection, "there is a presumption that the charge . . . was
unlikely to prejudice the defendant's case." State v. Singleton,
211 N.J. 157, 182 (2012).
27 A-5494-14T1
A.
Defendant complains on appeal that the trial court did not
sua sponte give the Model Jury Charge (Criminal), "Testimony of a
Cooperating Co-Defendant or Witness" (rev. Feb. 6, 2006)
(Cooperating Charge). However, the Cooperating Charge explicitly
warns:
This charge should not be given except upon
the request of defense counsel. "While a
defendant is entitled to such a charge if
requested and a judge may give it on his own
motion if he thinks it advisable under the
circumstances, it is generally not wise to do
so absent a request, because of the possible
prejudice to the defendant." State v. Begyn,
34 N.J. 35, 54-56 (1961); State v. Gardner,
51 N.J. 444, 460-461 (1968). "Certainly, it
is not error, let alone plain error, for a
trial judge to fail to give this cautionary
comment where it has not been requested."
State v. Artis, 57 N.J. 24, 33 (1970).
[Id. at 1 n.1.]
Defendant points out that the cited cases concern situations
where the cooperating witnesses are accused of committing a crime
with the defendant, where the instruction might "convey[] to the
jury an impression that the court is suggesting his guilt solely
because the witnesses have admitted theirs and implicated him."
Begyn, 34 N.J. at 55. Nonetheless, defendant cannot show
prejudice.
28 A-5494-14T1
Defendant argues the trial court should have sua sponte given
the portion of the charge stating:
The law requires that the testimony of such a
witness be given careful scrutiny. In
weighing his/her testimony, therefore, you may
consider whether he/she has a special interest
in the outcome of the case and whether his/her
testimony was influenced by the hope or
expectation of any favorable treatment or
reward, or by any feelings of revenge or
reprisal.
[Cooperating Charge at 2].
Defendant was not prejudiced because the trial court's final
charge allowed the jury to consider those factors. It instructed
the jury "to determine the credibility of the witness[], and in
determining whether a witness is worthy of belief," to consider
"the witness' interest in the outcome of the trial," the witness's
"possible bias, if any, in favor of the side for whom the witness
testified," and "any and all other matters in the evidence which
serve to support or discredit [the witness's] testimony." See
Artis, 57 N.J. at 33 (finding no plain error where "the court did
charge that, in determining the credibility of witnesses, the jury
should take into account the interest of a witness in the outcome
of the trial").
Even if "the trial court should have instructed the jury to
carefully scrutinize [the cooperating witness's] testimony," our
Supreme Court has found no plain error where "defense counsel
29 A-5494-14T1
thoroughly cross-examined [the witness] to challenge his
credibility and [his] lack of credibility was a major theme in
closing arguments," and "the trial court gave the standard charge
on credibility." State v. Adams, 194 N.J. 186, 208-09 (2008).
Given such extensive impeachment, "[i]t was obvious to any juror
that [the cooperating witness] was a witness whose testimony called
for careful scrutiny. The absence of the benefit to defendant of
the court's imprimatur on his argument through the accomplice-
credibility instruction was not clearly capable of producing an
unjust result." State v. Harris, 156 N.J. 122, 182 (1998).
Defense counsel repeatedly attacked the testimony of the
cooperating witness, Alford. She cross-examined him thoroughly
on his criminal history, his pending charges, the benefits of
cooperating, and his motives for testifying. In closing, she
pointed out "his endless rap sheet," "his steal of a deal of five
years . . . based on his cooperating agreement instead of 20 years
that he was facing," and his knowledge that he could "get bigger
points" for implicating defendant for "bigger crimes like murder."
She argued Alford took what defendant was alleged to have done and
lied that he had confessed to doing it. She told the jurors she
was "fully confident that you do not need me to" talk further
about that "quote/unquote 'witness.'" Moreover, there was other
eyewitness testimony that defendant committed the shooting. Thus,
30 A-5494-14T1
any error was not "sufficiently prejudicial to require a reversal."
Begyn, 34 N.J. at 56.
B.
Defendant argues that in light of his oral statements to
Alford, the trial court sua sponte should have given the
instructions described in [1] State v. Kociolek, 23 N.J. 400
(1957), and [2] State v. Hampton, 61 N.J. 250 (1972), respectively:
[1] In considering whether or not an oral
statement was actually made by the defendant,
and, if made, whether it is credible, you
should receive, weigh and consider this
evidence with caution based on the generally
recognized risk of misunderstanding by the
hearer, or the ability of the hearer to recall
accurately the words used by the
defendant. . . . [2] If, after consideration
of all these factors, you determine that the
statement was not actually made, or that the
statement is not credible, then you must
disregard the statement completely.
[Model Jury Charge (Criminal), "Statements of
Defendant," 1-2 (rev. June 14, 2010)
(numeration added).]
However, there was "no plain error in the omission of Hampton
and Kociolek charges," because "the jury was made well aware of
the questions surrounding the reliability of defendant's alleged
statements to" Alford by defense counsel's cross-examination and
closing, and received the trial court's "detailed credibility
instruction that sufficiently guided the jury in assessing
[Alford's] testimony." State v. Feaster, 156 N.J. 1, 72-73 (1998).
31 A-5494-14T1
Indeed, there is "no reported case in which a failure to include
a Kociolek charge has been regarded as plain error." State v.
Crumb, 307 N.J. Super. 204, 251 (App. Div. 1997). Moreover, a
Hampton instruction is designed to address "police interrogation"
and "is not required when a defendant has allegedly made a
voluntary inculpatory statement to a non-police witness without
being subjected to any form of physical or psychological pressure."
State v. Baldwin, 296 N.J. Super. 391, 398 (App. Div. 1997); see
State v. Wilson, 335 N.J. Super. 359, 367 (App. Div. 1999). Here,
the absence of those instructions "was not clearly capable of
producing an unjust result." State v. Harris, 156 N.J. 122, 183
(1998).
V.
Lastly, defendant challenges his sentence. "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) (citation omitted).
A sentence must be affirmed unless: "(1) the trial court failed
to follow the sentencing guidelines, (2) the aggravating and
mitigating factors found by the trial court are not supported by
the record, or (3) application of the guidelines renders a specific
sentence clearly unreasonable." State v. Carey, 168 N.J. 413, 430
(2001). None of those failings occurred here.
32 A-5494-14T1
The trial court sentenced defendant for second-degree
manslaughter to an extended-term sentence of fourteen years in
prison with an 85% period of parole ineligibility under the No
Early Release Act, N.J.S.A. 2C:43-7.2. The court merged into that
conviction defendant's conviction for second-degree possession of
a firearm for an unlawful purpose. For second-degree unlawful
possession of a handgun without a permit, the court imposed a
consecutive sentence of six years in prison with a three-year
period of parole ineligibility. Both sentences were consecutive
to defendant's four years in prison for violation of probation.
Defendant argues his extended-term sentence was excessive.
The trial court imposed the extended-term sentence because
defendant was a persistent offender under N.J.S.A. 2C:44-3(a), as
he had "been previously convicted on at least two separate
occasions of two crimes, committed at different times." Before
his November 2011 manslaughter offense, he had been convicted of
a January 2011 third-degree aggravated assault involving
significant bodily injury against Simpson under Indictment No. 11-
06-1382.10 Defendant also had been convicted in Georgia of a 2001
theft by receiving stolen property offense, which defense counsel
conceded was the equivalent of an indictable offense. Defendant
10
Defendant included this indictment in his amended notice of
appeal, but makes no belated challenge to that conviction.
33 A-5494-14T1
did not dispute his eligibility for an extended term of up to
twenty years in prison.
Defendant also had been convicted of disorderly-persons
simple assault in April 2011. He violated the probation he
received for his aggravated assault against Simpson by fatally
shooting Simpson. The trial court found three aggravating factors
and no mitigating factors. The court gave heavy weight to
aggravating factors three and nine and moderate weight to
aggravating factor six. See N.J.S.A. 2C:44-1(a)(3), (6), (9).
Under these circumstances, defendant fails to show the fourteen-
year extended-term sentence was an abuse of discretion.
Defendant contends the trial court abused its discretion in
making his unlawful possession sentence consecutive to his
manslaughter sentence. However, the court made clear it was guided
by the factors in State v. Yarbough, 100 N.J. 627 (1985). The
court noted "there can be no free crimes in a system for which the
punishment shall fit the crime." Id. at 643. The court found two
other Yarbough factors favored a consecutive sentence: "the crimes
and their objectives were [not] predominantly independent of each
other," and "the crimes were committed at different times or
separate places, rather than being committed so closely in time
and place as to indicate a single period of aberrant behavior."
Id. at 644. The court found defendant committed the crimes at
34 A-5494-14T1
different times and places, because he possessed the gun without
a permit "before the [manslaughter] offense" as he came from his
apartment with the gun, and he possessed the gun without a permit
after the manslaughter offense because he "fled with the weapon."
The court thus found defendant's possession of the gun without a
permit was "a separate offense." The court "weigh[ed] the Yarbough
factors" and made the unlawful possession sentence consecutive.
The trial court's findings were supported by the evidence,
particularly defendant's statements to Alford that he took the gun
to Chicago when he fled. Moreover, as Judge (later Justice) Long
stated, "[i]t is well-settled that [unlawful possession of a
handgun without a permit] is an offense separate and apart from"
a substantive offense committed with the gun. State v. Cooper,
211 N.J. Super. 1, 22 (App. Div. 1986).11 Thus, the court did not
violate "the criteria for imposing consecutive sentences
enunciated in State v. Yarbough" in imposing a consecutive sentence
11
Our Supreme Court has relied on Cooper to hold that unlawful
possession of a handgun under N.J.S.A. 2C:39-5(b) does not merge
into possession of a firearm for an unlawful purpose under N.J.S.A.
2C:39-4(a). State v. O'Neill, 193 N.J. 148, 163 n.8 (2007) (citing
Cooper, 211 N.J. Super. at 22-23); see State v. Garcia, 195 N.J.
192, 200 n.4 (2008). Similarly, "[b]ecause the gravamen of
unlawful possession of a handgun is possessing it without a permit,
it does not merge with a conviction for a substantive offense
committed with the weapon." State v. DeLuca, 325 N.J. Super. 376,
392-93 (App. Div. 1999), aff'd o.b., modified on other grounds,
168 N.J. 626, 631 (2001).
35 A-5494-14T1
for unlawful possession of a handgun without a permit. State v.
Lane, 279 N.J. Super. 209, 222 (App. Div. 1995).
We note State v. Copling, 326 N.J. Super. 417 (App. Div.
1999), held that a "conviction for unlawful possession must be
served concurrently to the conviction for murder." Id. at 442.
Copling ruled the sentencing court could not justify a consecutive
sentence based on the different "'objectives and purposes'" of the
unlawful possession of a handgun statute and the murder statute.
Id. at 441. Copling reasoned "the objective of each [statute] is
similar," and "the victims sought to be protected by the two
statutes are the same." Id. at 441-42.
Copling is distinguishable because the trial court here did
not rely on the different objectives and purposes of N.J.S.A.
2C:39-5(b) and the manslaughter statute, and properly found
Yarbough factors supporting a consecutive sentence. In any event,
Copling's reasoning is unpersuasive. The offense of unlawful
possession of a handgun without a permit is part of New Jersey's
gun control laws designed to regulate the possession of handguns
"without regard to the individual's intent or purpose in possessing
them," and regardless of whether the gun is used to commit another
crime. State v. Harmon, 104 N.J. 189, 197 (1986). Those
objectives and purposes are different than the purpose of the
36 A-5494-14T1
manslaughter statute to deter and punish unlawful homicides
against individual victims regardless of the fatal means used.
Defendant notes the crimes did not involve "separate acts of
violence or threats of violence," or "multiple victims." Yarbough,
100 N.J. at 644. However, "a sentencing court may impose
consecutive sentences even though a majority of the Yarbough
factors support concurrent sentences." Carey, 168 N.J. at 427-28
(citing State v. Perry, 124 N.J. 128, 177 (1991) (finding
consecutive sentences proper even though four of Yarbough's five
factors favored concurrent sentences)). Thus, "[w]e cannot
conclude that the trial court abused its discretion by imposing
consecutive sentences." State v. Spivey, 179 N.J. 229, 245 (2004).
Affirmed.
37 A-5494-14T1