STATE OF NEW JERSEY VS. DASHAWN L. MIXSON (17-06-0399, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0185-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DASHAWN L. MIXSON,
Defendant-Appellant.
____________________________
Submitted October 20, 2020 – Decided December 17, 2020
Before Judges Gilson and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-06-0399.
Joseph E. Krakora, Public Defender, attorney for
appellant (Francis W. Yook, Designated Counsel, on
the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Steven A. Yomtov, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Found guilty by jury of all crimes for which he was indicted, defendant
Dashawn L. Mixson appeals from his convictions and concomitant aggregate
fifty-year sentence for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2)
(count one); conspiracy to commit first-degree murder, N.J.S.A. 2C:5-2(a)(1)
and (2); N.J.S.A. 2C:11-3(a)(1) and (2) (count two); second-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count three); and
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count
four),1 in connection with the shooting death of Dajour Riley. In his merits brief,
he argues:
POINT I
THE STATE'S IMPROPER REMARKS IN OPENING
AND SUMMATION CONSTITUTED
PROSECUTORIAL MISCONDUCT AND
DEPRIVED [DEFENDANT] OF A FAIR TRIAL.
A. The State's Summation was Replete with
Improper Appeals to Emotion that
Impassioned the Jury.
B. The State's Opening Improperly Vouched
for the Credibility of Witnesses.
1
After merging counts two and three into count one, the trial court imposed a
fifty-year prison term on count one, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, and a concurrent eight-year term with four years
of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), on count
four.
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POINT II
THE STATE'S RELIANCE ON INHERENTLY
UNRELIABLE JAILHOUSE SNITCH TESTIMONY
AT TRIAL VIOLATED DEFENDANT'S DUE
PROCESS RIGHTS UNDER THE NEW JERSEY
CONSTITUTION AND THE COURT FAILED TO
PROPERLY INSTRUCT THE JURY ON HOW TO
EVALUATE SUCH TESTIMONY.
POINT III
[DEFENDANT'S] SENTENCE IS EXCESSIVE, THE
RESULT OF A DEFICIENT SENTENCING
PROCEDURE, AND IN CONTRAVENTION TO THE
SENTENCING GUIDELINES.
A. [Defendant's] Sentence Was the Product of
Erroneous Fact-Finding.
B. The [Trial] Court Failed to Consider or
Apply Mitigating Factors Three and Eight.
C. The [Trial] Court Misapplied Aggravating
Factor Three.
Unpersuaded, we affirm.
According to the trial evidence, on the morning of March 28, 2017,
defendant, his codefendant Varnell Mohammed and a third individual got into
Mohammed's girlfriend's vehicle and went to "get some weed." The third
individual had a gun on his person but put it under the hood of the car because
Mohammed did not want it inside the car "in case the cops pulled [them] over."
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After obtaining the "weed" they proceeded "to the doctor's office on Union and
Garfield" "to see if [Mohammed's] daughter had a doctor's appointmen t." Once
they arrived, Mohammed "got out of the car," went inside the office, and asked
the security desk "something." He got back in the car, which was parked in the
parking lot, and waited for his girlfriend to arrive with his daughter.
That same morning, Dajour Riley and his girlfriend, Tiera Harris, who
was four months pregnant, were also at the same office for a doctor's
appointment. While Mohammed and defendant were waiting in the parking lot,
defendant noticed Riley's car.
Mohammed testified, they "had beef with" Riley, believing "he had
something to do with" Tyron Wilson—Mohammed's cousin and defendant's
friend—"being dead." As Mohammed was driving out of the lot, defendant saw
Riley and his girlfriend walk out of the doctor's office and get in their car.
Defendant "told [Mohammed] to pull over so he could grab the gun and shoot at
them." After Mohammed complied, Riley drove out of the parking lot, made
two turns and suddenly pulled the car over. Defendant walked up to the driver's
side of Riley's car and opened fire, shooting at least four shots.
As the shots were being fired into their vehicle, Riley jumped over and
covered Harris in the passenger seat. She could feel his body jump as he was
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4
hit by the bullets. When the shooting finally stopped, Harris got out of the car
and pulled Riley into the passenger seat so she could drive him to the hospital.
Before she drove off, she saw a vehicle she recognized but could not see inside
the tinted windows. Despite treatment at the hospital, Riley ultimately
succumbed to his injuries from three gunshot wounds.
Harris gave a statement to police while at the hospital describing the car
she recognized at the scene and identifying Mohammed who she believed to be
its owner. The police, who were familiar with Mohammed and the vehicle from
an incident just a few weeks prior and knew he frequented a particular housing
complex, "began canvassing that area and the surrounding area in hopes of
finding the vehicle and . . . Mohammed." In fact, after Mohammed had dropped
defendant at his residence after the shooting, he and the third individual went to
that housing complex and parked the car. Soon after their arrival, the police
located the vehicle and Mohammed. He was placed under arrest.
Mohammed gave a statement to police implicating defendant as the
shooter. He would not, however, provide an accurate location where he dropped
defendant after the incident. He was charged with conspiracy, homicide, and
unlawful possession of a weapon. Mohammed pleaded guilty to conspiracy to
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commit aggravated assault and agreed, as part of the plea, to provide "truthful
testimony" at defendant's trial.
Prior to the March 28 shooting, defendant began posting remarks on
Facebook. Twenty-five days prior, he posted: "he riding around trying to find
[people]"; "[t]hey kill his man in December"; and "I'm going to look until I find
him." Thirteen days prior, defendant posted that someone 2 "is a dead[] man."
After the shooting, defendant continued to post, stating "I know you know we
live" and "fuck the ops." Two days after the shooting, he posted "I know you
all know," then "[m]y daycare business ain't over yet," then "you all laughing
like if I'm locked up," and, lastly, updated his cover photo with a picture of
Tyron Wilson. Defendant turned himself in to the police on March 30, 2017.
I.
Defendant first avers the assistant prosecutor's opening and closing
remarks to the jury deprived him of a fair trial. Specifically, he contends the
verdict was tainted because the jury was "substantially impassioned" by the
assistant prosecutor's "numerous, inflammatory remarks" about: Riley's
girlfriend's pregnancy; Riley's mother; Riley's condition after being treated at
the hospital; the shooting; and defendant's surrender to police.
2
The court reporter at trial transcribed that person as "indiscernible."
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Although prosecutors are "expected to make vigorous and forceful closing
arguments to juries[,]" and "are afforded considerable leeway in [their] closing
arguments," State v. Frost, 158 N.J. 76, 82 (1999), a prosecutor
must confine [his or her] comments to evidence
revealed during the trial and reasonable inferences to be
drawn from that evidence. . . . [I]f a prosecutor's
arguments are based on the facts of the case and
reasonable inferences therefrom, what is said in
discussing them, "by way of comment, denunciation or
appeal, will afford no ground for reversal."
[State v. Smith, 167 N.J. 158, 178 (2001) (quoting State
v. Johnson (Johnson I), 31 N.J. 489, 510 (1960)).]
In determining whether the assistant prosecutor's closing remarks violated
those tenets, the factors we consider include whether: "timely and proper
objections were raised, . . . the offending remarks were withdrawn promptly,
. . . the trial court struck the remarks and provided appropriate instructions to
the jury . . . [and] the offending remarks were prompted by comments in the
summation of defense counsel." State v. Smith, 212 N.J. 365, 403-04 (2012)
(internal quotation marks and citations omitted). Our analysis of these factors
leads us to conclude the assistant prosecutor's closing remarks, as a whole and
in context, while not completely harmless, were not "sufficient to raise a
reasonable doubt as to whether [they] led the jury to a result it otherwise might
not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
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Defendant did not object to any of the remarks he now challenges,
depriving the trial court of an opportunity to correct any prosecutorial overstep.
State v. Wilson, 57 N.J. 39, 50-51 (1970). That reticence also signaled that "the
defense did not believe that the prosecutor's remarks were prejudicial." Id. at
51. In any case, we perceive little prejudice.
As defendant points out in his merits brief, the assistant prosecutor alluded
to Harris's pregnancy a number of times. The first reference recounted Harris's
testimony that Riley covered her as the bullets hit his body, describing "some of
the final moments that she spent with the father of her child." That reference,
made to highlight defendant's mental state when he fired the shots into the car,
was also reprised later in the State's summation when the assistant prosecutor
argued:
defendant showed no remorse when he shot Dajour
Riley in front of [Harris]. He shot Dajour Riley as he
was in the car with his pregnant girlfriend. There was
no mercy shown that day. No remorse shown that day.
Hours after the defendant did this, he posted a photo to
Facebook and he commented saying we live. He was
celebrating. He was celebrating the fact that he took a
man's life. Celebrating the fact that he killed that man
in front of his pregnant girlfriend.
The assistant prosecutor repeated it again when he described the "barrage of
bullets [that] hit Dajour Riley in [the] chest and twice in the shoulder, as he was
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covering and protecting his pregnant girlfriend." He also said the victim "had
no idea" that defendant was planning to shoot him while he "was in the doctor's
office with his pregnant girlfriend."
Those remarks were based on the evidence that was adduced at trial and
related Riley's location prior to the shooting and the reason—unrelated to the
shooting—he was there, his actions when he was shot, and defendant's
callousness as he shot into the car, evidencing the mental state the prosecution
was required to prove: purposeful or knowing murder. In context, the assistant
prosecutor stayed within the evidence and the reasonable inferences the jury
could draw therefrom, thus presenting "no ground for reversal." Johnson I, 31
N.J. at 510; see also State v. Bradshaw, 195 N.J. 493, 510 (2008).
We do agree with defendant that the assistant prosecutor exceeded the
bounds of propriety by telling the jury:
On that fateful rainy morning, Dejour Riley was
expecting to be a father. He wasn't expecting a barrage
of bullets as he left that doctor's office with his
girlfriend. And while he was expecting to be a father
at [nineteen years-old], he was still a child himself. He
was a son to a mother who will never get to spend
another Mother's Day with her baby. Dajour Riley will
never get to meet the son that was named after him.
That is who Dajour Riley was on March 28[], 2017.
That is the man who lost his life.
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"Where the victim's character and future plans have no bearing on the
substantive issue of guilt, the prosecutor may not comment on the evidence in a
manner that serves only to highlight the victim's virtues in order to inflame the
jury." State v. Darrian, 255 N.J. Super. 435, 453 (App. Div. 1992). But, "not
every deviation from perfection on the part of a prosecutor warrants a reversal
of a conviction." Ibid. These grouped remarks were isolated in a summation
that otherwise conformed to the prosecutor's duty to "play fair." See State v.
Marks, 201 N.J. Super. 514, 535 (App. Div. 1985). Again, the remarks did not
draw an objection, and we perceive "they were not so egregious" to sway the
jury and "deprive[] defendant of a fair trial." Smith, 212 N.J. at 404.
We find defendant's challenges to the other portions of the State's
summation less compelling. The assistant prosecutor's descriptions of the victim
in the hospital and the shooting were fair comments on the evidence. See
Bradshaw, 195 N.J. at 510.
The depiction of Riley—"with medical equipment hooked up to his
body[;] [a] tube down his throat[;] [t]ubes in his chest draining fluid" —was, as
the assistant prosecutor told the jury, related to the State's proofs that the victim
suffered serious bodily injury that resulted in death. See N.J.S.A. 2C:11-3(a)(1)
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and (2). It also echoed the medical examiner's testimony about the signs of
therapy which his external examination of the victim's body revealed:
at that time there was an endotracheal tube, which is
a[n] ET tube in the mouth area, and there was a
[twelve]-inch suture, an incision, on the abdomen,
which the surgeon performed an operation on the body,
and there [were] bilateral chest tubes, which they used
for drainage of fluid or blood from the chest cavity.
Then there is a blood pressure cuff on the arm and there
is [an]other oxygen monitor on the finger. There are IV
lines on the forearm, on the wrist and on the leg area,
and also there is a Foley's catheter, which is the urine
catheter in the bladder.
The assistant prosecutor's comments, therefore, also related to the thoroughness
of the autopsy. Evidence in a murder trial is not for the faint of heart. Contrary
to defendant's argument, the comments were not unduly "graphic" and
"gratuitous."
The same holds true for the State's comments about defendant showing
"no mercy" and "no remorse" in connection with the shooting and defendant's
subsequent celebratory Facebook posts. The phrases defendant protests:
"'waited for his opportunity to strike'; 'barrage of bullets'; 'Riley's executioner';
'in cold blood'; 'in cold blood' (again); knowing 'what the defendant is capable
of'; '[h]ide lying in wait'; 'barrage of bullets' (again)," not only reference the trial
evidence, they buttress the State's argument that defendant acted purposely or
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knowingly in causing Riley's death or serious bodily injury that resulted in
death. They, like the State's comments about the number of shots fired and the
nature of the attack, related to defendant's mental state. The assistant prosecutor
was "entitled to sum up the State's case graphically and forcefully," and was not
"expected to present the State's case in a manner appropriate to a lecture hall."
Johnson I, 31 N.J. at 510-11.
And, the assistant prosecutor's references to defendant turning himself in
to police related to the timing of the arguably incriminating postings on
defendant's Facebook account. Furthermore, the assistant prosecutor did not
state or imply defendant's surrender evidenced his guilt.
We also reject defendant's argument that the assistant prosecutor vouched
for the State's witnesses' credibility in his opening statement. The assistant
prosecutor was outlining what direct evidence the State would proffer at trial
when he said "the State's best witness[, the victim,] is dead," and Mohammed
was "the next best thing." See State v. W.L., 292 N.J. Super. 100, 108 (App.
Div. 1996) ("The purpose of a prosecutor's opening statement is to present to
the jury an outline or summary of what the State expects to prove.").
Defendant contends the assistant prosecutor "suggested that Riley would
have been able to identify" defendant. But, no such inference could reasonably
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have been made from the opening remarks. The assistant prosecutor did not
suggest what the victim would have disclosed. Nor did the assistant prosecutor
offer an opinion about Mohammed's veracity. The assistant prosecutor merely
offered that Mohammed's status as a getaway driver and coconspirator, who
witnessed defendant shoot Riley, rendered his testimony "direct evidence of the
defendant's conduct." That statement was not a comment about Mohammed's
credibility, and it certainly was not a personal assurance by the assistant
prosecutor that Mohammed was telling the truth.
So too, the assistant prosecutor did not vouch for Mohammed's credibility
during his summation. He properly responded to defense counsel's closing
which was primarily dedicated to discrediting Mohammed's testimony
implicating defendant, during which he repeatedly said Mohammed lied.
Prosecutors may "respond to an issue or argument raised by defense counsel."
State v. Johnson (Johnson II), 287 N.J. Super. 247, 266 (App. Div. 1996); see
also State v. Engel, 249 N.J. Super. 336, 379 (App. Div. 1991) (holding a
prosecutor may respond to the defense's disparagement of the State's case in
order to "right the scale" (quoting United States v. Young, 470 U.S. 1, 12-13
(1985))). The assistant prosecutor was careful to argue Mohammed was credible
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because evidence—including video and photographic evidence, and defendant's
Facebook postings—buttressed his testimony.
Accordingly, we do not perceive the assistant prosecutor's comments
denied defendant a fair trial or led to an unjust result so as to require reversal.
State v. Roach, 146 N.J. 208, 219 (1996); Marks, 201 N.J. Super at 535-36.
II.
Defendant's arguments that the admission of Mohammed's testimony
violated his due process rights because it was inherently unreliable, and that the
trial court failed to instruct the jury on the proper method to evaluate that
testimony are without sufficient merit to warrant discussion in this opinion. R.
2:11-3(e)(2). Mohammed was not, as defendant contends, a "jailhouse snitch."
That is, he was not, as delineated in the Connecticut model jury charge
advocated by defendant in his merits brief as one that should have been given in
this case, "[a]n informant . . . who is currently incarcerated or is awaiting trial
for some crime other than the crime involved in this case and who obtains
information from the defendant regarding the crime in this case and agrees to
testify for the state."
Mohammed was an indicted participant; a coconspirator in and eyewitness
to defendant's crimes. He, unlike a "jailhouse snitch," was actually present when
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the crimes were committed. And his testimony was buttressed by video and
photographic evidence as well as defendant's own statements.
Mohammed's status as a cooperating witness was disclosed to defendant,
elicited by the State on direct examination, highlighted by defendant on cross-
examination, and argued as a credibility factor by defendant in summation.
Defendant neither objected to the trial court's jury instruction that properly
included the cooperating witness charge, Model Jury Charges (Criminal),
"Testimony of a Cooperating Co-defendant or Witness" (rev. Feb. 6, 2006), nor
suggested an alternative charge. Thus, Mohammed's testimony was "subject to
special scrutiny," see State v. Hernandez, 225 N.J. 451, 468 (2016), and it was
left to the jury to evaluate the credibility of that evidence, see State v. Frisby,
174 N.J. 583, 594-95 (2002). We perceive no due process violation in the
admission of Mohammed's testimony, State v. Long, 119 N.J. 439, 489 (1990),
superseded by statute on other grounds, N.J.S.A. 2C:11-3i, or error, much less
plain error, in the trial court's jury charge, State v. Walker, 203 N.J. 73, 89
(2010); see also R. 2:10-2.
III.
The trial court, finding aggravating factors three, N.J.S.A. 2C:44-1(a)(3)
(the risk that defendant will reoffend), and nine, N.J.S.A. 2C:44-1(a)(9) (the
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need for deterrence) substantially outweighed the non-existent mitigating
factors, imposed the aggregate fifty-year sentence subject to NERA's eighty-five
percent parole ineligibility period.
Defendant argues his sentence was excessive and the trial court, by failing
to apply mitigating factors three, N.J.S.A. 2C:44-1(b)(3) (defendant acted under
strong provocation), and eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was
the result of circumstances unlikely to recur), and applying aggravating factor
three, though it "was not fully supported by competent[,] credible evidence in
the record[,]" abused its discretion by failing to follow the sentencing guidelines ,
and our Supreme Court's mandate that "a trial court should identify the relevant
aggravating and mitigating factors, determine which factors are supported by a
preponderance of evidence, balance the relevant factors, and explain how it
arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215
(1989).
In reviewing the trial court's sentencing decision, we do not "substitute
[our] judgment for that of the trial court." Ibid. We are "bound to affirm a
sentence, even if [we] would have arrived at a different result, as long as the
trial court properly identifies and balances aggravating and mitigating factors
that are supported by competent credible evidence in the record." Ibid.
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Though, as defendant contends, the trial court did not address specific
mitigating factors, stating only that it "reviewed all of the mitigating factors[;
t]here are none[,]" defendant did not raise any mitigating factors at sentencing,
including those he now proposes should have been found. Trial courts need to
provide "reasons for imposing its sentence that reveal the court's consideration
of all applicable mitigating factors in reaching its sentencing decision." State v.
Bieniek, 200 N.J. 601, 609 (2010) (emphasis added). Our Supreme Court
encouraged trial courts to address "each factor raised," but did not require courts
"explicitly reject every mitigating factor argued to the court," much less those
that were not argued. Ibid.
Moreover, no competent evidence supports the proposed mitigating
factors. In arguing that mitigating factor three is applicable, defendant contends
he was provoked by Riley's alleged involvement in the shooting death of Tyron
Wilson. Not only is there scant evidence of Riley's involvement in that death,
revenge for a shooting that occurred weeks earlier cannot serve as provocation
that warrants consideration as a mitigating factor.
Defendant also contends he was entitled to mitigating factor eight because
he did not have a violent history and it is unlikely that he would be provoked
again given "the unique circumstances pertaining to" Riley's alleged
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involvement in defendant's friend's death. The trial court, however, in finding
aggravating factor three, considered the then-twenty-one-year-old defendant's
"involvement in the [c]riminal [j]ustice [s]ystem started in Texas at the age of
about [sixteen] with two adjudications [and] four arrests in Texas," including an
adjudication for burglary, a criminal trespass that resulted in "a supervisory
caution," and an adjudication without disposition for evading arrest. The court
also found "a lengthy history of involvement in substance abuse starting at the
age of [fourteen]," that continued with "a little celebration" with the "use of
alcohol, marijuana and Percocet because he knew he would be turning himself
in" to the police on these charges following defendant's celebration of Riley's
murder. And the court noted defendant's New Jersey criminal history included
an indictable conviction, with separate arrests for possession of drugs and "a
drug paraphernalia charge," as well as "a pending criminal trespass" in
municipal court when he was charged with this murder. The trial court based
the aggravating factor on that history as well as defendant's conduct in
connection with the murder which the court described as "nothing short of a
planned out execution" that was not the product of "an argument and . . . a quick
decision." The trial court concluded that conduct and defendant's criminal
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history and "repeated" drug use "indicate[d] . . . a strong risk he will commit
another offense."
As we noted in State v. Towey, 244 N.J. Super. 582, 593 (App. Div. 1990),
aggravating factor three and mitigating factor eight are related. The trial court's
supported finding of aggravating factor three militates against mitigating factor
eight. Cf. O'Donnell, 117 N.J. at 216 (finding the defendant's "almost boastful"
attitude towards his offense evidenced a belief that defendant could "take the
law into his own hands," thus supporting the trial court's finding that the
defendant was likely to commit future offenses). In that neither of the proposed
mitigating factors are supported by competent evidence, a remand is not
warranted. Bieniek, 200 N.J. at 608-09 (holding "a remand may be required
when a reviewing court determines that a sentencing court failed to find
mitigating factors that clearly were supported by the record").
Our determination that aggravating factor three is supported by the record
leads us to conclude the trial court did not abuse its discretion in imposing
sentence. See State v. Roth, 95 N.J. 334, 363-64 (1984). The trial court
followed the sentencing guidelines, based its findings as to aggravating and
mitigating factors on competent, credible evidence, and the application of the
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guidelines to the facts of this murder does not render the sentence imposed
clearly unreasonable so as to shock the judicial conscience. Id. at 364-65.
To the extent not addressed herein, we determine the remainder of
defendant's arguments, including that the sentence was based on the court's
misstatement of facts regarding defendant's possession of the firearm when he
first entered Mohammed's vehicle—mentioned by the trial court after
determining the length of the sentence in connection with its ultimate
determination that the possession of that gun should run concurrent to the
murder sentence—are without sufficient merit to warrant discussion. R. 2:11-
3(e)(2). If error, that misstatement did not prejudice defendant.
Affirmed.
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