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Full Opinion
NOT FOR PUBLICATION WITHOUT THE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-0928-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FERNANDO CARRERO, JR.,
a/k/a FIPO,
Defendant-Appellant.
_________________________
Submitted September 25, 2024 – Decided July 24, 2025
Before Judges Marczyk, Paganelli, and Torregrossa-
O'Connor.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 08-10-1706.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Amira R. Scurato, Designated Counsel, on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, on
the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Just after midnight on November 7, 2007, Lyndhurst police responded to
a 9-1-1 call for an ambulance to the family home of Kerilynn Lowenstein, 1
defendant Fernando Carrero, Jr.'s then-girlfriend. Police arrived and found the
victim, Jose Hall, moaning and lying on the kitchen floor, in a pool of blood,
with gunshot wounds to the head and torso. Hall was transported to the hospital
where he succumbed to his injuries two days later. Police spoke to witnesses at
the scene and learned defendant was the shooter.
Defendant, then-one month shy of his eighteenth birthday, was arrested
later that same morning, in possession of the gun later matched to the shooting,
which the police found in a duffel bag, feet away from him. After waiver of
jurisdiction to the Law Division for trial as an adult, an indictment followed
charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2)
(count one); second-degree possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (count two); third-degree possession of a firearm without a
permit, N.J.S.A. 2C:39-5(b) (counts three and five); and third-degree hindering
apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count four).
1
We refer to Kerilynn Lowenstein by her first name to avoid confusion because
her parents who share the same last name were also trial witnesses.
A-0928-20
2
Defendant raised self-defense, claiming he and Hall—acquainted through
Kerilynn—were arguing when Hall pulled out a gun, and, as the two struggled,
the gun went off striking Hall. The State, however, theorized that defendant,
motivated by intense jealousy regarding Kerilynn's relationships with other men,
shot an unarmed Hall—first in the torso wounding him, and then a second time,
mortally, in the head—as Hall writhed on the floor defenseless. The State
moved successfully pretrial to admit evidence of defendant's prior history of
possessive, controlling, and physically abusive behavior toward Kerilynn. The
court also admitted statements made by defendant to police at and around the
time of his arrest connecting him to the gun.
A jury convicted defendant on all counts after his first trial in 2013, but
we reversed the conviction on appeal and remanded for a new trial , finding
defendant was improperly denied a jury instruction on passion/provocation
manslaughter. See State v. Carrero, No. A-5304-12 (App. Div. June 10, 2016)
(slip op. at 23). The Supreme Court affirmed the reversal on those grounds. See
State v. Carrero, 229 N.J. 118, 131 (2017).
On remand, a new judge presided over pretrial motions, trial, and
sentencing. After retrial, during which defendant's statements and testimony
regarding his controlling and abusive relationship with Kerilynn were again
A-0928-20
3
admitted, a jury convicted defendant of all charges for a second time. At
sentencing, the court, after merging count two into count one, sentenced
defendant to life imprisonment subject to parole ineligibility under the No Early
Release Act, N.J.S.A. 2C:43-7.2, for murder, and imposed four-year terms on
the remaining counts to run concurrent to each other and consecutive to the life
sentence.
On appeal, defendant presents the following challenges to the trial and
sentence:
POINT I
THE COURT ERRED IN ADMITTING EVIDENCE,
ON THE GROUND THAT IT WAS AN EXCEPTION
TO N.J.R.E. 404(b), THAT DEFENDANT
FREQUENTLY BEAT UP HIS GIRLFRIEND,
WHICH HAD NO BEARING ON ANY MATTER AT
ISSUE AND SERVED NO PURPOSE OTHER THAN
TO INVITE THE JURY TO INFER THAT HE HAD
AN AGGRESSIVE DISPOSITION SO AS TO
UNDERMINE HIS CLAIM THAT HE ACTED IN
SELF-DEFENSE OR THAT THE VICTIM WAS THE
AGGRESSOR AND THE GUN WENT OFF IN A
STRUGGLE AGAINST A MUCH LARGER MALE.
POINT II
THE DOUBLE-HEARSAY TESTIMONY ABOUT
WHAT THE VICTIM TOLD A WITNESS ABOUT
HIS CONVERSATION WITH DEFENDANT
CONSTITUTED UNRELIABLE DOUBLE
A-0928-20
4
HEARSAY AND DID NOT MEET ANY EXCEPTION
TO THE RULE EXCLUDING HEARSAY.
POINT III
DEFENDANT'S ALLEGED STATEMENT ABOUT
OWNERSHIP OF THE GUN, AND THE GUN
ITSELF, SHOULD HAVE BEEN EXCLUDED
BECAUSE THEY WERE OBTAINED IN
VIOLATION OF HIS CONSTITUTIONAL RIGHT
TO REMAIN SILENT.
POINT IV
THE JUDGE'S FAILURE TO VOIR DIRE THE JURY
AFTER A JUROR CALLED CHAMBERS POST-
VERDICT WAS CLEAR ERROR REQUIRING
REVERSAL.
POINT V
THE STATE'S SUMMATION VIOLATED
DEFENDANT'S RIGHT TO REMAIN SILENT.
POINT VI
THE CUMULATIVE IMPACT OF THE ERRORS
DENIED DEFENDANT A FAIR TRIAL.
POINT VII
THE TRIAL JUDGE'S FAILURE TO PROPERLY
CONSIDER DEFENDANT'S YOUTH IN
MITIGATION TOGETHER WITH OTHER
SENTENCING ERRORS REQUIRES THAT A
REMAND FOR RESENTENCING BE ORDERED.
Defendant's supplemental brief raises the following argument:
A-0928-20
5
THE TRIAL COURT ERRED IN ALLOWING THE
TESTIMONY OF STATE POLICE [LIEUTENANT]
JAMES RYAN OF THE BALLISTICS UNIT
BECAUSE [LIEUTENANT] RYAN'S TESTIMONY
WAS CONFRONTATIONAL VIOLATING
CRAWFORD V. WASHINGTON, 541 U.S.
36 . . . [(2004)].
Following a thorough review of the record under controlling legal
principles, and unpersuaded by defendant's arguments that he was deprived of a
fair trial and improperly sentenced, we affirm.
I.
A. The Pretrial Motions
On June 8, 2018, on remand for a new trial, the court heard arguments
regarding defendant's request to re-litigate several of the pretrial motions
admitting pivotal evidence before defendant's first trial. Specifically, defendant
challenged decisions by the prior motion judge, which resulted in the admission
at trial of: (1) the handgun used to murder Hall seized at the time of defendant's
arrest; (2) N.J.R.E. 404(b) evidence regarding defendant's abusive and
controlling behavior toward Kerilynn; (3) defendant's various pre- and post-
Miranda2 statements to police; and (4) a statement by Hall related to a
conversation with defendant. See Carrero, slip op. at 3.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-0928-20
6
The trial court determined that the law-of-the-case doctrine precluded re-
litigation of three of the four prior motion rulings: denying defendant's motion
to suppress the gun; allowing the State to present prior bad acts evidence
concerning defendant's prior abuse of Kerilynn and jealousy of others; and
admitting hearsay testimony from Kerilynn about a conversation Hall told
Kerilynn he had with defendant during which Hall tried to quell tensions. The
court granted defendant a new Miranda hearing and an opportunity to
supplement the prior motion record, after which the court found all defendant 's
statements admissible at trial.
The following synthesizes the extensive record of the relevant motions
before both the first and second trials, as well as the record from the second trial
and sentencing.
1. Motion to Suppress/Miranda
Prior to the first trial, defendant moved to suppress the gun seized at the
time he was arrested and statements he made to police at various stages while in
police custody. The first motion judge heard testimony at a combined hearing
on both motions, and by order dated January 7, 2010 and oral decision: (1)
denied the motion to suppress the gun under the Fourth Amendment of the
United States Constitution and Article 1, Paragraph 7 of our State Constitution
A-0928-20
7
based on consent to search by the homeowner; and (2) found admissible all
statements defendant made to police pre- and post-Miranda warnings under the
public safety exception to Miranda's safeguards. On remand, the second trial
court adopted the prior motion court's decision denying suppression of the gun,
but granted a new hearing regarding the admissibility of defendant's statements.
As it had before, the State sought to admit four distinct statements by
defendant. Three statements were made while defendant was in custody but
prior to the administration of Miranda warnings: (1) defendant's non-verbal
head nod toward the location of the gun in response to police inquiring about
the gun; (2) defendant's statement in response to the police asking if anything
else in the bag was his, stating, "Nothing but the gun and that's it"; and (3) his
statement during transport when police informed him they wanted to question
him about "a shooting" and he stated, "I don't know anything about it." The
State also sought to admit defendant's formal statement to police post-Miranda
warnings, during which he again admitted the gun was his before he invoked his
rights, as prompted by his mother who was also present. The following
summarizes the largely undisputed evidence adduced at both hearings. 3
3
At the first hearing, the State presented testimony from Newark Police
Department Fugitive Apprehension Team (NFT) Detectives Anthony Lucarelli
A-0928-20
8
On November 7, 2007, at approximately 12:19 a.m., the Lyndhurst Police
Department responded to the 9-1-1 call regarding the shooting. They arrived at
the Lowenstein family home, where Kerilynn resided with her parents, Maryann
and Dean, and her ex-boyfriend Corey Hicks. The Lowensteins allowed Hicks,
who was close friends with Hall, to live in a downstairs apartment in their home.
While emergency medical responders transported a badly wounded but still
breathing Hall to the hospital, Kerilynn, who witnessed the shooting, told police
defendant shot Hall and fled on foot. The police did not find the gun at the
scene. The police learned defendant's last known address in Newark and
contacted the Newark Police Department for assistance in locating and
apprehending defendant.
At approximately 5:00 a.m., roughly nine detectives from the NFT met to
review the information received from the Lyndhurst Police Department and
commenced the search for defendant. Not finding defendant at his last known
address where his stepfather confirmed defendant had not been, the team went
and Norberto Soares, Bergen County Prosecutor's Office (BCPO) Homicide
Unit Detectives Keith Delaney, James Frank Brazofsky, and Lyndhurst Police
Department Lieutenant Patrick Devlin. Defendant presented testimony from
defendant's sister and stepfather. On remand, the trial court held supplemental
hearings and took testimony on three separate dates. The State presented
testimony from Detective Delaney, and defendant presented testimony from
Detective Soares, Detective Lucarelli, and Detective Brazofsky.
A-0928-20
9
to the home of defendant's sister, Marlene Ortiz, who disclosed that defendant
was at her ex-boyfriend James Ortiz's4 apartment, located in a multi-family
house with two apartments in Orange. Marlene testified she told the officers
that defendant called her "crying" earlier that morning and asked for money
because he wanted to "leave the area" and had "d[one] something wrong." She
explained that she accompanied police to look for her brother because police
"told [her she] had to . . . go with them," although she had given a prior
statement indicating that she voluntarily joined the search.
At approximately 7:30 a.m., the NFT, with Marlene, arrived at James's
apartment, where he lived with his mother, Edith Thompson. NFT Detective
Lucarelli testified that he knocked on the door, James answered, and the
detective explained that they were conducting an investigation and needed to
speak with defendant. According to the detective, James told them that
defendant was there and invited them inside.
Detective Lucarelli described finding defendant sitting on a couch
appearing "excited." Detective Lucarelli walked to defendant, physically raised
him off the couch, and asked his name. When defendant identified himself, the
4
We refer to Marlene Ortiz and James Ortiz by their first names to avoid
confusion because they share the same last name.
A-0928-20
10
detective patted down defendant, handcuffed his hands behind his back, and
placed him back on the couch, "standing over the top of him" while they
remained in the apartment. Defendant cooperated and did not resist or threaten
any of the police officers. Three additional officers simultaneously
"conduct[ed] a sweep" for other persons in the area and "secured" the apartment.
James, his mother, and Marlene remained in the kitchen, while the remaining
NFT officers "secur[ed] the outside perimeter." It was undisputed that defendant
was in custody and not free to leave.
NFT Detective John Rodriguez then asked defendant, "Are there . . . any
weapons in the house[?]" According to Detective Lucarelli, defendant "put his
head down and moved his head towards the left direction" and "nodded to his
left." Approximately five or six feet away from defendant, a black duffel bag
sat on the floor at the end of the couch.
NFT Detective Norberto Soares testified that he approached the "open"
duffel bag, and without touching it, he could see another bag inside. He
described the interior bag as "a white shopping bag that [wa]s somewhat
transparent," and he could see through it the brown handle of a handgun. He
announced to the other officers the presence of a gun, although it was not
removed from the bag until BCPO detectives arrived and consent was obtained.
A-0928-20
11
NFT Detective Soares testified that the outside of the residence was fully
secured, and he did not think that defendant posed a danger. NFT officers
removed certain personal property from defendant, including his belt, shoelaces,
and cell phone, and placed them on the couch, while they awaited the arrival of
the Lyndhurst police and BCPO investigators. Shortly after the additio nal
officers arrived at around 9:00 a.m., BCPO Detective Keith Delaney informed
defendant that he was going to take him to the Lyndhurst Police Headquarters.
Detective Delaney testified and confirmed that defendant was in custody and
had not been read his Miranda warnings.
BCPO Detective James Brazofsky testified that before police removed the
gun from the duffel bag, he spoke to and obtained written consent from Edith
Thompson—whom he understood was the "owner" or "renter" of the
apartment—to search the apartment. He indicated she consented verbally and
signed the written consent form; and, after obtaining Thompson's consent, the
police removed the handgun from the duffel bag. The police also removed a
plastic bag containing four .357 caliber bullets from the duffel bag, a long with
t-shirts and CDs. Photographs were taken of the duffel bag with the white bag
and visible gun handle before the police removed the gun from it.
A-0928-20
12
While the police were preparing to transport defendant to the police
station, Detective Delaney asked one of the officers to get defendant's personal
property that was on the couch. He also asked defendant, "[I]s anything else in
the bag yours[?]" Defendant responded, "Nothing but the gun, and that's it."
Defendant then nodded to the phone on the couch and said, "And that phone."
Defendant was escorted out of the home and placed in the back of a police
car. On the drive to Lyndhurst Police Headquarters, Detective Delaney told
defendant that they were "bringing him to Lyndhurst, that [they] were in the
middle of an investigation involving a shooting and [they] wanted to speak to
him about that." Defendant stated, "I don't know anything about it." Defendant
then asked Detective Delaney if his sister, Marlene, was going to be present at
police headquarters. Detective Delaney told defendant that the police were
trying to get in contact with his mother so she could meet them there and posed
no questions to defendant.
At approximately 10:00 a.m., they arrived at the Lyndhurst police station,
as did defendant's mother, Virginia Montalvo. Detective Delaney testified he
told defendant's mother that the police were "investigating a shooting, th[at]
[they] had just brought in her son, . . . and that [they] wanted to speak to him
A-0928-20
13
about the incident." Montalvo accompanied defendant to the interview room
and remained with him.
The interview commenced at 10:25 a.m. The detective read defendant his
Miranda warnings from a juvenile Miranda rights printed form and asked
defendant to read along, after which defendant indicated he understood his rights
and wished to speak. Montalvo indicated that she wished to be present, both
signed the form, and the interview began.
Defendant denied being at the Lowenstein home the night before. He
claimed he had borrowed Kerilynn's car while she was at work. He said he went
to "pick[] up [his] older brother, . . . went back to the hood, just stood there
politicking until [he] had to pick [Kerilynn] up." He claimed he then picked
Kerilynn up after work at 11:00 p.m., and he "told her to drop [him] off," which
she did, in Newark. Defendant said that he then took the bus to James's
apartment in Orange, arriving there before midnight.
The detective asked defendant, "[W]hy do you think you're here
today . . . ?" Defendant responded, "I really don't know, that's what I want to
know, why am I here?" He again denied knowing why he was being questioned,
and said, "Well yeah, I can't even visit . . . Keri[l]ynn's house."
A-0928-20
14
When Detective Delaney asked defendant whether he had been at the
Lowenstein house, defendant replied, "[N]o[,] I was sleeping." When asked if
he had been at the house the day before, defendant responded, "Earlier. . . .
Before I left my mother's house to eat. That's when [Kerilynn] picked me up[.]
I had to work, she had to work in the afternoon."
Detective Delaney asked him, "[A]t the house in Orange[,] you directed
police officers to a gun that was in a bag next to the couch is that correct?"
Defendant responded, "I didn't direct nobody. They found it, I didn't direct
nobody to nothing." Detective Delaney said to defendant, "[W]e asked you if
anything else in that [duffel] bag was yours and you told me directly 'nothing
but the gun.'" Defendant said, "Yeah, nothing but the gun." Detective Delaney
then asked, "So the gun would be yours?" Defendant responded,
"Yes[,] . . . [b]ut I didn't direct nobody to no gun." When Detective Delaney
asked, "Alright[,] but the gun is yours?" defendant responded, "That's what I
said."
Defendant's mother interjected, stating, "I think you need a lawyer," and
"I don't think you should answer anymore questions." Defendant then
responded, "I don't want to talk to you because I don't know what's going on.
A-0928-20
15
You came and picked me up for no reason. I wasn't doing nothing." Detective
Delaney then terminated the interview.
In January 2010, the first motion judge denied defendant's motion to
suppress his statements to police and the handgun in a joint oral decision.
Regarding the statements, the judge first found that police were authorized to
initially inquire about the gun under the public safety exception to the warrant
requirement. The judge found the police witnesses were credible and the
question was designed to protect their safety and that of others. The motion
judge also found that defendant's statements that "nothing but the gun" was his
when asked if anything else in the duffel bag belonged to him and that he "d[id
not] know anything about [the shooting]" during transport to the police station
did not result from interrogation. Finally, the judge found defendant's formal
statement to police was constitutionally obtained, as police advised defendant
and his mother of defendant's rights; and, free from coercion, and informed that
the questioning involved "a shooting," defendant waived them.
In its 2019 written decision, the trial court again found all defendant's
statements admissible. The court considered both records, first noting that it
was "clear from the record" of the first hearing that the "motion was extensively
litigated over the course of two days with testimony and oral argument," and
A-0928-20
16
that the prior judge made credibility findings and reached its decision on the
testimony and evidence. The court also considered the newly offered
supplemental testimony and evidence and found the police witnesses were
credible, making specific findings about their demeanor and the substance of
their testimony.
Regarding defendant's non-verbal nod toward the gun, the court found the
public safety exception permitted the limited police inquiry about whether there
was a gun in the house. The court noted that the first officers to encounter
defendant were from the NFT with a limited role of locating the shooting
suspect—not to investigate the case or find incriminating evidence such as the
gun.
The court cited controlling law, and found:
As in [New York v. ]Quarles, [467 U.S. 649, 655
(1984),] the police officers, in the act of
apprehending . . . defendant, were confronted with the
immediate necessity of ascertaining the whereabouts of
a gun that was alleged to have been used in the
Lyndhurst shooting. The whereabouts of that weapon,
unknown to the officers, posed a danger not only to the
officers, but to the individuals in the home.
The court added:
A firearm could have been hidden within the cushions
where . . . defendant was sitting, within his reach, his
movement hampered, but not completely impeded by
A-0928-20
17
handcuffs. There were two other individuals present
who were not in custody. Locating any weapon was a
paramount concern to protect the officers' and others'
safety.
Accordingly, the court concluded that the detective had an "objectively
reasonable need" to "protect himself, other officers, and other individuals
present, from the danger a firearm posed to them, by asking . . . defendant the
narrowly[] tailored question." The court determined that defendant's non-verbal
response was admissible; thus, it had "no reason" to consider whether the gun
should be suppressed on Fifth Amendment grounds, as there was no
constitutional infirmity to asking whether the gun was in the house.
The court also found admissible defendant's statement that "nothing but
the gun" belonged to him. It determined Detective Delaney's question whether
anything else belonged to him was "ministerial" and came after Detective
"Brazofsky held up [the] [t]-shirts and CDs." The court reasoned that the
question was "reasonable," as defendant was not in his home and the inquiry
was "designed to ascertain what property belonged to . . . defendant, and not
designed to elicit an incriminating response."
The court also deemed defendant's formal statement admissible, rejecting
the argument that the police should have informed both defendant and his mother
of the details of the situation, not simply that there had been "a shooting." The
A-0928-20
18
court stated it "observed the videotaped interrogation," and found "defendant
and his mother made a knowing, voluntary waiver of . . . defendant's rights.
There were no coercive tactics used to elicit statements from . . . defendant or
to have his mother consent to the interrogation." Further, the court found that
when "defendant's mother invoked [defendant's] right to counsel, the officers
promptly ceased all questioning."
Subsequently, the court denied defendant's motion for reconsideration.
As to defendant's motion to suppress the gun under the Fourth Amendment
and the New Jersey Constitution, the first motion judge found the warrantless
search and seizure of the gun was lawful pursuant to valid consent given by
Thompson. The trial court on remand found the prior Fourth Amendment ruling
to be the law of the case, and the gun was admitted at the second trial. Defendant
does not challenge that ruling here.
2. Motion to Admit Prior Bad Acts Evidence
The trial court on remand adopted the prior motion judge's decision
permitting the Rule 404(b) prior bad acts evidence. The State moved to admit
the evidence, arguing defendant's controlling and jealous behavior regarding
Kerilynn was admissible as intrinsic to the offense and for the non-propensity
purposes of understanding defendant's motive and state of mind in shooting an
A-0928-20
19
unarmed Hall in the Lowensteins' kitchen over Hall's seemingly "benign"
comments to Kerilynn. The State also sought to admit Kerilynn's testimony
regarding a conversation between Hall and defendant weeks before the shooting,
when Hall approached defendant about making peace for Kerilynn's sake.
The first motion judge held an extensive hearing, during which Kerilynn
testified, subject to cross-examination. The testimony was detailed and spanned
three days to allow the court to understand the nature of the relationship,
although the State did not seek to admit all of the proffered evidence at trial.
Kerilynn testified regarding numerous specific instances of defendant 's
emotional and physical abuse and controlling behavior, particularly as it related
to defendant's jealousy of other men. She described many physical assaults, and
continuous controlling conduct, with defendant monitoring her communications
and restricting who she could speak to and where she could go. She also testified
regarding threatening letters and calls from defendant urging her to "lie" and
alter her prior statements to police. 5
After the conclusion of this hearing, defendant pled guilty to first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a), and third-degree hindering
5
Defendant was separately charged and convicted of second-degree witness
tampering, N.J.S.A. 2C:28-5(a)(1), and related charges regarding these
communications.
A-0928-20
20
apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1). In 2012, after defendant
retracted his plea and the case was again pending trial, the judge granted the
State's motion, finding the evidence was both intrinsic to the offense and
satisfied the four-part test under State v. Cofield, 127 N.J. 328, 338 (1992).
The court found the evidence was relevant to defendant's state of mind
and motive, satisfying Cofield's non-propensity purpose requirement. The court
noted that the State established "defendant abused . . . [Kerilynn] throughout
their relationship," and that defendant was "extremely jealous" of Hicks and was
"also aware of . . . [Kerilynn]'s friendship with . . . Hall." The judge identified
evidence that showed defendant was controlling of Kerilynn and jealous of her
relationships with others. The judge found defendant had "physically
assaulted . . . [Kerilynn] a number of times and also destroyed property, her cell
phone, damaged her vehicle, and she and her family had received threatening
phone calls[ and] letters. She outlined numerous different
incidents[,] . . . however the State . . . limit[ed] what they[ were] seeking to
admit."
The court stated, "Defendant argue[d] that he acted in self-defense when
he killed the victim, and therefore, his defense puts his state of mind, i.e., his
motive, directly at issue," citing State v. Nance, 148 N.J. 376, 388 (1997).
A-0928-20
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Specifically, the court held the evidence was relevant as to "defendant's
peacefulness and aggression, and negate[d] self-defense, or possibly c[ould],
[and] therefore, . . . f[ound] that the evidence . . . me[t] the first prong."
The court found the abusive relationship and history was also intrinsic
evidence, reasoning:
[P]ursuant to State v. Rose, [206 N.J. 141, 179 (2011)]
it will be relevant as intrinsic evidence in explaining the
full story or picture of what occurred here. This was a
relationship, again, [in] which jealousy played a role.
There was testimony of an abusive relationship. The
one incident which occurred with the beating about the
face, also the controlling nature, who she could talk to,
who she couldn't, where she can go, the jealousy
with . . . Hicks, the need for this so-called peace
agreement [brokered by Hall], the [c]ourt finds is
relevant.
The court also deemed Cofield's second prong of temporal proximity
satisfied because they were close in time and continuous leading up to the
encounter between defendant and Hall. The court addressed the third prong,
finding Kerilynn's testimony was credible, and the State presented clear and
convincing evidence of the "serious instances of abuse" and jealousy.
Finally, the motion judge found the heightened standard of the fourth
Cofield requirement satisfied, stating:
Under the fourth prong, the probative value of the
prior bad acts must not be outweighed by its prejudice
A-0928-20
22
to . . . defendant. Cofield, 127 N.J. at 338. In cases
involving motive, the courts are generally reluctant to
exclude prior acts. See [State v. Covell, 157 N.J. 554,
570-71 (1999);] [s]ee also State v. Castagna, 400 N.J.
Super. 164[,] . . . 180 [(App. Div. 2008)]. At issue here
is whether . . . defendant acted in self-defense or it was
some sort of accident, or [he] allegedly committed a
crime based on jealousy or intent. . . .
The instances that have been outlined directly
underscore . . . the central issue in this case. The so-
called peace initiative which was cited also reflected on
the fact that this is the central issue in this case. The
[c]ourt does not find that the prejudice from those prior
instances that the State proffers outweighs the
probative value. What occurred here is up to the jury
to determine[,] was it self-defense, was it an accident,
was it knowing or purposeful, was [the jealousy] fueled
by the abusive relationship . . . .
When you put all this together, it was
symptomatic of what the relationship was. He finds out
Hicks is there, they go there, previously there's a major
problem, there was this peace initiative all striving to,
in essence, be a buffer, and the shot. The State's theory
is there was no provocation whatsoever.
. . . [D]efendant takes exception to that, and that's
exactly the case that's going to be presented to the jury.
Eliminating these other instances would not tell the
story, would really not make sense in terms of what the
issue really is before the [c]ourt. Whether they
conclude it was self-defense or an accident or that these
other issues had no credibility, which really becomes a
jury question, thus, the [c]ourt finds the fourth prong
has been satisfied in all of these instances which are
proffered to be admissible.
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The court thus identified and allowed testimony at trial limited to: (1)
evidence of "physical violence allegedly perpetrated against [Kerilynn]"
between July 10, 2007 and July 14, 2007, specifically an incident when
defendant, suspecting Kerilynn had conspired with Hicks and Hall to ambush
him, punched Kerilynn in the face while in the car, causing her to suffer injuries
including a swollen face, (2) testimony of defendant's "controlling nature
and . . . who she could talk to, [and] where she could go," (3) evidence of
defendant's "jealousy of . . . Hicks," (4) Kerilynn's testimony that when she
received a call from her mother on the day of the incident, defendant "made her
put the speaker on" and after her mother "stated that the victim stopped by the
house, . . . defendant . . . directed her to take [him] to the house," and (5)
Kerilynn's testimony that she received a letter from defendant on February 19,
2009, threatening physical abuse "by stating if she testified at trial he would go
after her and her family."
On remand, following oral arguments in June 2018 on defendant's
renewed motion to bar the prior bad acts pursuant to Rule 404(b), the court
issued a written decision deeming the prior court's ruling the law of the case.
The court relied on the testimony from the prior Rule 404(b) hearing in 2009,
finding that the State sought "to introduce the same evidence based on the
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identical arguments made," but indicated it would conduct a Rule 104 hearing
prior to trial "to ensure [Kerilynn's] testimony comports with [the prior motion
judge's] ruling."
The court subsequently addressed the substance of the testimony prior to
opening statements on January 9, 2020. The prosecutor indicated the State did
not "inten[d] to . . . dwell on the various and numerous episodes of physical
abuse," suggesting, "in an effort to streamline and . . . make sure that [it] d[id
not] go far afield," it would pose to Kerilynn specific leading questions, which
it identified. Defense counsel objected, arguing that the prior judge 's order was
"over-broad." The court determined that the prior judge's decision was not
"over-broad," finding that evidence of "defendant's physical abuse, controlling
nature[,] and jealousy" was admissible as specified by the prior motion judge.
3. Motion to Exclude the Conversation Between Hall and
Defendant
The court also adopted the prior motion judge's ruling, admitting
testimony regarding the conversation between defendant and Hall prior to the
shooting. At the Rule 404(b) hearing Kerilynn recounted that at "[t]he end of
October, beginning of November," Hall told her, that, while defendant was
parked in front of the Lowensteins' house, Hall went out and "told [defendant]
that he[ was] tired of seeing [Kerilynn] upset because [defendant]" was not
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permitted at the house due to "problems between [defendant] and
[Hicks], . . . that [Hicks] had a girlfriend, . . . and that [defendant] should just
end the drama and make everything peaceful" to allow defendant to come to the
house, and that defendant "shook [Hall's] hand." Kerilynn testified that
defendant confirmed the conversation took place, but indicated it did not change
anything.
The court found the conversation, occurring "a week or so" before the fatal
encounter, was relevant to refute defendant's claim that Hall was the aggressor.
It found Hall's statements to Kerilynn regarding the conversation with defendant
were admissible and relevant to Hall's state of mind under Rule 803(c)(3),
finding defendant put the victim's state of mind at issue by asserting self-
defense.
B. The Trial
1. The Testimony and Evidence
Trial commenced on January 7, 2020. At trial, Kerilynn described her
relationship with defendant, defendant's history with Hicks and Hall, and what
occurred on the night of the shooting.
Kerilynn explained she started dating defendant in May 2006. At first,
their dating was "[e]verything [she] could have wanted in a relationship" and
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defendant "always told [her] how beautiful [she] was and how wonderful [she]
was. And all of the good things." However, she recounted that within a few
months things changed, and defendant became controlling and abusive.
She described defendant's controlling behavior:
He monitored who I spoke to. He told me who I
could be friends with. If he was present and I got a
phone call, the phone call had to be on speaker. I wasn't
allowed to talk to any other males, or have male friends,
and a lot of my female friends he didn't want me to be
friends with anymore, as well.
Kerilynn explained that she took classes at Montclair State University, and
sometimes he went with her and would wait in the car. If she did not meet him
at her car within fifteen minutes of the end of her class, he would enter the school
to look for her because "[h]e thought [she] was talking to somebody [who she]
shouldn't be talking to on campus." She indicated that "[i]f a guy even spoke to
[her], [defendant] would become angry and agitated." Sometimes he would yell
at her and sometimes he would hit her, and "[t]here was a time where he used a
leather strap on [her]."
According to Kerilynn, "there was no way [defendant] was going to allow
[her] and any man to have a conversation." She stated defendant even got angry
when she received a group text message from her college professor.
Explaining that Hicks, her ex-boyfriend, lived in the basement apartment
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of her parents' house, Kerilynn recounted how Hicks remained close with her
family, and her parents allowed him to live there after their breakup. She
described defendant as not "comfortable" with Hicks living there; and, even
though she told defendant that Hicks had a girlfriend, defendant "didn't want
[her] to have any friendships with males." This included Hall, whom Kerilynn
described as Hicks's best friend. According to Kerilynn, Hicks did not like
defendant because he was aware that defendant was abusive towards her.
Kerilynn testified about the incident in July 2007, when defendant beat
her suspecting she had "set him up" to be ambushed by Hicks and Hall. She told
the jury she drove defendant home, dropped him off and watched him go inside.
The next day, defendant drove Kerilynn to a "deserted" street in Newark and
parked the car. Defendant told Kerilynn that he saw Hicks and Hall "sitting
outside his house in a car waiting for him to come home," and accused her of
trying to "set him up." She told him that was "absurd" because Hicks and Hall
were out of town working at a carnival in Delaware. Kerilynn explained
defendant wanted her to admit that she "had them waiting there, so that they
c[ould] do something to him." Despite her denial, defendant "continued to tell
[her] . . . he knew that . . . was them and that [she] had to tell the truth." He
threatened that he was going to ask her if she "set him up" and "[e]very time
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[she] lied . . . he was going to hit [her], but if [she] told the truth, he wouldn't
touch [her]."
Defendant asked her again if she had set him up, "[a]nd when [she] said
no, he punched [her]" in the face. Kerilynn said "[h]e hit [her] the same way he
would hit a guy in a fight." Each time she denied his allegation, defendant hit
her again. When asked how many times he hit her, she said,
I can't recall exactly how many times he hit me,
but I can recall that there came a point where my face
was swollen that I could not take another hit, so I turned
my face, so that he could hit the right side of my face,
because I didn't think I was going to be able to take
another hit on the left side.
She said she could "feel [her] face get swollen," and "[p]hysical pain that
[she] never felt before," and she felt "dizzy" from the attack. She said her
"mouth was bleeding," but the more she tried to assure him, the more he hit her.
Eventually, she explained that it "got to a point where [she] needed him to stop
hitting [her], so eventually [she] said yes, [she] did, so that he would stop."
After Kerilynn capitulated and falsely admitted to his accusations, "he said that
that's all he wanted was the truth, and that [they] could be together again and be
happy." When she got home and her parents saw her face, they took her to the
police station and the EMS provided treatment for her injuries. She stated
defendant hit her on more than one occasion.
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After Kerilynn testified about defendant's past conduct, the court
interjected and instructed the jury about the limited purpose of the testimony, as
it did several times throughout the trial. The court cautioned:
I would like you to listen closely. The State has
introduced evidence that . . . defendant physically
abused and controlled Kerilynn . . . and was jealous of
her interacting with other men during the course of their
relationship.
Normally, such evidence is not permitted under
our Rules of Evidence. Our rules specifically exclude
evidence that a defendant has committed other crimes,
wrongs, or acts when it is offered only to show that he
has a disposition or a tendency to do wrong and,
therefore, must be guilty of the charged offenses.
Before you can give any weight to this evidence,
you must be satisfied that . . . defendant committed the
other act. If you are not satisfied, you may not consider
it for any purpose. However, our rules do permit
evidence of other crimes, wrongs, or acts when the
evidence is used for a specific, narrow purpose.
In this case, the evidence has been introduced to
establish . . . defendant's motive for the killing, mainly,
his jealousy of [Hall] and his desire to keep
Kerilynn . . . from associating with other men.
Whether this evidence does, in fact, establish
defendant's motive for killing . . . Hall is for you to
decide. You may decide that the evidence does not
establish defendant's motive and is not helpful to you at
all. In that case, you must disregard the evidence.
On the other hand, you may decide that the
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evidence does establish defendant's motive and use [it]
for that specific purpose. However, you may not use
this evidence to decide that . . . defendant has a
tendency to commit crimes or that he is a bad person.
That is, you may not decide that just
because . . . defendant has committed other crimes,
wrongs, or acts he must be guilty of the present crime.
I've admitted the evidence only to help you decide the
specific question of defendant's motive for
killing . . . Hall.
You may not consider it for any other purpose.
You may not find . . . defendant guilty now simply
because the State has offered evidence of other crimes,
wrongs, or acts.
[(Emphasis added).]
Kerilynn also testified about the conversation between Hall and defendant
in late October 2007. She recalled that she drove defendant to her house and
ran inside to get a movie while defendant waited in the car. Hall was at her
house and asked Kerilynn if defendant was there; she told Hall that defendant
was waiting in the car. He then told her that he was going to speak to defendant
and left the house. She said that Hall "was out there for just a few minutes and
then he came back in [the house] with a smile" on his face. She asked Hall what
had happened, and Hall told her that they "shook hands and that he believed that
[defendant] had a better understanding of the situation." Kerilynn recounted the
conversation as she had in her motion testimony—the gist being that Hicks and
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Hall were not threats to defendant, and that defendant should make peace for
Kerilynn's sake to allow him to visit freely at the Lowensteins' home.
According to Kerilynn, Hall also said that he told defendant that he and
Hicks were leaving in two weeks—to attend the police academy and military
basic training, respectively, "so why continue straining the relationship when
very soon they wouldn't be in the house as much." Kerilynn also testified that
she spoke with defendant, who confirmed that Hall approached and spoke to
him. Defendant "was very . . . nonchalant about it," and "didn't seem excited
that now he could come over and everything was going to be okay." She said
defendant told her the conversation "d[id not] change anything."
Hicks also testified that he observed the conversation between Hall and
defendant. Hicks confirmed the conversation as Hall reported it to Kerilynn.
He added: "[T]he next thing you know, I believe they shook hands." According
to Hicks, "they both agreed that [they] were going to drop it and then that was
the end of it."
Regarding the night of the shooting, November 6, 2007, Kerilynn testified
that she was with defendant who picked her up from work at 11:15 p.m. After
they dropped off her co-worker, Kerilynn's mother called while she was driving
home. Kerilynn placed the phone on speaker so defendant could hear her
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conversation. She testified her mother asked her not to bring defendant over
that night because she was not feeling well and because Hicks, his girlfriend,
and Hall were over, "[a]nd she just didn't want to have to worry about people
and them having an altercation. She wanted to be able to go to bed and rest, so
it would be better if he didn't come." Kerilynn explained defendant "wasn't
happy" that Maryann did not want him to come over because Hicks and Hall
were at the house. Defendant told Kerilynn that "he was coming." Maryann
testified confirming the conversation.
Hall's girlfriend, Laura Mattia, testified she drove Hall to the Lowensteins'
house that night. She explained that earlier that day she picked up Hall, who
had been her boyfriend for over three years. She dropped him off at Verona
Park and went to her evening class at Essex County College. Mattia explained
Hall was running in the park as he was set to attend the police academy in a
couple of weeks to become a Newark police officer like his father. After her
class was over, Mattia picked up Hall and they went to eat, but because she hit
traffic on the way back to Newark, she suggested that she drop him off to stay
with Hicks. According to Mattia, Hall agreed, as he was excited to see Hicks
before Hicks left for Army basic training. Mattia dropped off Hall at the
Lowensteins' house.
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Mattia described Hall's demeanor as consistent with his "normal, sunny
personality." She described him as someone who never drank liquor, "wanted
to get guns off the streets," and was working at a home for disabled adults until
he went to the police academy. She said he was dressed in a "sweatshirt and
black swishy pants, like windbreaker pants," that she described as "very light
pants."
Kerilynn testified that when she and defendant got to her house, the two
went to the kitchen where they were "laughing, talking, hugging, [and] kissing."
She explained that while close to him, her hands did not "go anywhere near
[defendant's] pants pockets" or "near the pockets of his hoodie"; she kept her
hands "around his . . . waist and upper torso." At one point, Hicks came up from
the basement into the kitchen wearing a pair of defendant's jeans that Maryann
had mistakenly put with Hicks's laundry. Although Kerilynn offered to return
the jeans, defendant was upset and argued with her all week, telling her that he
did not want the jeans back because Hicks had worn them. She explained that
defendant saw Hicks wearing his jeans that night and "kind of laughed and was
like oh, there's my jeans."
Melissa Schmidt, Hicks's girlfriend at the time, testified that on the
evening of November 6, 2007, she was in the basement with Hicks. When Hall
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arrived at the Lowenstein house, he knocked on the basement window and Hicks
went upstairs to let him in the house. Schmidt, Hicks, and Hall watched
television in the basement and Maryann came down and spoke with them for a
brief visit; after she left, Hicks went upstairs to get a drink for Schmidt. When
he returned, they continued watching television. She testified Hall then went
upstairs to microwave leftover food he had brought with him.
Kerilynn recounted sitting at the kitchen table with defendant when Hall
came up from the basement. She recalled Hall grabbed something from the
refrigerator and then asked her why she had not told him that she had started
working at Victoria's Secret. Kerilynn did not "want to have a conversation with
him, because [she] didn't want [defendant] to get upset, so [she] responded with
a sarcastic remark," but Hall repeated the question.
Kerilynn explained that after Hall asked her the second time, defendant
"kind of slammed his hands on the table and said stop talking to my girlfriend. "
Hall responded, "I'm just asking her a question." Defendant then dared Hall,
"ask again." Kerilynn "knew that there was going to be an argument, so [she]
got up and walked out of the kitchen to go get [her] parents, . . . [because] if
they started fighting, [she] couldn't break it up." She recalled that when she left
the kitchen, Hall was standing at the refrigerator while defendant was still seated
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35
in a chair. She walked quickly to the stairs, because she "wanted to get [her]
parents before [defendant and Hall] started fighting." She heard defendant and
Hall "exchanging words" as she walked away.
She then heard Hall start screaming "whoa, whoa, whoa" and as she
reached the bottom of the stairs, she "heard a very loud sound that sounded like
a gunshot." She "froze[] and ran back into the kitchen." From the dining room,
on the way back to the kitchen, she "saw [Hall] on the ground and [defendant]
standing on top of him." She explained Hall's "knees were curled up and he was
using his arms" "to try to grab a hold of the gun," that she saw defendant holding
in his right hand, "pointed directly at [Hall]." She described defendant as "sort
of bracing himself on [Hall]'s knees and leaning directly over him with his arms
extended straight in front of him pointing the gun at [Hall]."
Kerilynn testified that she "couldn't stand there and watch it. [She] had to
try to stop it." She screamed defendant's name to try and get his attention,
attempting to grab the gun from defendant, but "[h]e wouldn't give it to [her]."
She was "pulling [defendant's] forearm towards [herself], so that the gun was
actually pointed at the floor and not at [Hall]'s head." She said Hall was on the
floor, screaming as she continued to struggle with defendant over the gun, and
"[b]ecause of the way [she] was standing, . . . the gun was then pointed at [her]
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leg." She let go of defendant, put her hands up, and said, "Fipo, what are you
doing?" After she released defendant's arms, defendant "pointed the gun back
at [Hall] and shot him." Kerilynn noticed that Hall was shot in "the back side
part of his head," as Hall was "moving to try to get away from the gun."
She testified that she did not actually see defendant flee the scene because
her focus was on Hall who was moaning, and she noticed "blood coming out of
his head." Kerilynn testified that Hicks ran upstairs from the basement and into
the kitchen; he "jumped onto the ground[,] . . . grabbed [Hall], and . . . the
phone that was right on top of the counter, . . . and . . . called 9-1-1."
Kerilynn's parents came downstairs and her father asked her what
happened, and she told them Hall was in the kitchen because "Fipo had shot
him." Kerilynn's mother grabbed her and asked, "[W]hat happened[?]"
Kerilynn replied, "Fipo shot [Hall]." Kerilynn described herself as "sort of calm,
like in shock," she grabbed her purse to leave and, when asked where she was
going, said she "had to go find Fipo." Her father stopped her, and Kerilynn
"immediately broke down."
Police responded, finding Hall alive but bleeding profusely, and
interviewed those present, as Hall was transported to the hospital. At first,
Kerilynn told police that she did not witness either gunshot. When she was
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informed that Hall was going to be "okay," she then admitted she had seen the
second shot. At trial, Kerilynn explained that she was initially untruthful
because she feared defendant. Kerilynn stated she did not see or feel a gun on
defendant, noting that prior to Hall walking into the kitchen, she and defendant
were laughing, and she was kissing and hugging him. Hicks testified at trial that
he never saw Hall with a gun when Hall left the basement and did not know Hall
to ever own a gun or "speak about a gun."
Detectives Delaney and Brazofsky testified consistent with their motion
testimony. Detective Delaney described the detectives eventually locating
defendant in the Thompson apartment, sitting on the living room couch with the
gun in the duffel bag feet away. The State did not present testimony that
defendant nodded toward the gun in the duffel bag; instead Detective Brazofsky
testified that he was "advised that there was a firearm that was observed in a
duffel bag inside the living room," and observed a black duffel bag with "an
open top [and] side pockets," and saw in it a "white plastic bag and through the
plastic[,] . . . a handle of what appeared to be a firearm."
Detective Delaney testified that, after retrieving the gun, he "started to get
ready to bring . . . [defendant] from the residence . . . to Lyndhurst Police
Headquarters," and approached defendant and asked "if anything else in the bag
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was his." The detective stated defendant responded, "nothing but the gun and
that's it," adding the cell phone also belonged to him. BCPO Detective James
Joseph Bordino, III, testified that he also collected a "men's jacket, size 3XL"
that James advised belonged to defendant.
Detective Delaney testified that while transporting defendant for
questioning, he advised defendant they "were bringing him to Lyndhurst Police
Headquarters, and that [they] were going to bring him there to interview him in
reference to a shooting that had occurred." The detective told the jury that
defendant replied, "[H]e didn't know what [he] was talking about, or anything
about it," and there was no further conversation on the ride to police
headquarters.
Detective Delaney explained that upon arrival, defendant was brought to
a holding area and eventually provided a recorded formal statement. The State
played defendant's recorded statement for the jury.
The State's expert in neurosurgery—a neurosurgeon at Hackensack
University Medical Center—testified that he responded to a call to the operating
room at 1:30 a.m. on the day of the incident to evaluate Hall. He found Hall
"semiconscious on arrival, . . . rapidly declined in consciousness,
and . . . became comatose, as evidenced by the fact that his neurological
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examination demonstrated signs that his brainstem wasn't working."
Dr. Mary Ann Clayton of the Bergen County Medical Examiner's Office
testified on behalf of the State as an expert in forensic pathology. She testified
that two days after his admission, Hall was "declared brain dead," and deceased.
She performed an autopsy. Dr. Clayton testified that upon examining Hall, she
observed he had a "black eye" on his right upper eyelid that was "caused by an
internal injury from the bullet." Hall had suffered two gunshot wounds—one to
his stomach, which fractured his pelvic bone, and one to the back right side of
his head. Although Hall could have survived the gunshot to the stomach, the
gunshot to the head was fatal.
Dr. Clayton determined, "based on the way . . . the bullet [went] through
the muscle wall and the path that it took, it w[as] . . . very likely that . . . Hall
was bent over slightly at the waist" and his left side was facing the shooter. As
for the wound to the right back side of Hall's head, Dr. Clayton testified that
Hall was positioned "consistent with the right side of his head being visible or
presenting to the gun[,] . . . the left side of his head being down."
Detective Delaney testified regarding defendant's threats and attempts to
influence witness testimony. He explained that, days after his arrest, defendant
wrote his sister a letter telling her to "pull [Kerilynn] to the side and explain to
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her that she needs to discharge the statement she put on [him] the night all of
this happened . . . if she . . . wants to see [him] again." Defendant also wrote
that Kerilynn "needs to lie to the [j]udge when he calls her up to testify against
[him] . . . [and] she's not going to get in any type of trouble. . . . But this is
going to look good on [his] behalf." Defendant wrote another letter to his sister
again asking her to convince Kerilynn to "discharge" her statement. He asked
her to convince Hicks to "discharge" his statement as well and to let him know
that they "could handle this situation out in the streets. Not through the [c]ourts
nor no [j]udges, nor him dropping statements." The letters were entered into
evidence.
Kerilynn testified that, two years later, prior to the first trial, defendant
sent her a handwritten letter, threatening, "[I]f you make this s[***] harder for
me by continuing your lying, I'll go after you and your entire family when I get
home." Subsequently, a no-contact order was entered; but defendant called
Kerilynn several times to pressure her to change her statement against him.
2. Opening and Closing Statements
The State argued in both opening and closing statements that defendant
shot an unarmed Hall out of jealousy over Kerilynn. In her opening statement,
the prosecutor alerted the jury that it would hear that defendant's controlling and
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sometimes "violent" relationship with Kerilynn motivated defendant, who had
armed himself with a gun, to murder Hall.
Defense counsel argued Hall "produced the gun as Keri[lynn] turned
around to either intimidate [defendant] or to shoot him," causing defendant and
Hall to fight and Hall "ended up getting shot the first time, which was not fatal";
but, after Kerilynn attempted to retrieve the gun, there was "a three-way tug-of-
war," and a second shot was fired hitting Hall in his head.
Defense counsel argued in summation that the evidence demonstrated
defendant "did not have a gun on him," explaining that Kerilynn had testified
she never saw defendant with a gun, nor did she feel a gun on defendant despite
having been in close proximity, "hugging and kissing him[,] . . . surrounding
him[,] and holding him at his waist." The defense claimed Hicks came upstairs
from the basement and saw defendant and Kerilynn together, and returned
downstairs to inform Hall defendant was there. Counsel claimed Hall came from
downstairs "carrying some food in a bag" that "was never found," suggesting
that the bag "maybe" contained the gun.
Defense counsel attempted to explain defendant's formal statement at
police headquarters regarding the gun. Counsel contended defendant
"admitted . . . the gun was his, meaning that the gun was in his possession at the
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time that he was in Orange," arguing it was "constructive possession," as the
gun was not found on defendant's person. Counsel then stated that defendant's
admission should
not . . . be construed to mean that he purchased the gun
and that he had a purpose in purchasing the gun and that
that purpose was to go after . . . Hall at midnight in the
kitchen of a house in Lyndhurst when he had no
expectation that . . . Hall would even be there. We
cannot take it that far. But this is where the State wants
you to take that statement. Again, you'll remember
from the statement that as soon as he got started talking
about a gun the interview stopped.
Defense counsel also reviewed Kerilynn's testimony of defendant's
controlling and abusive conduct, suggesting the State "tr[ied] to create this
narrative that [defendant], the [seventeen-]year[-]old, was . . . a monster,
beating up on his girlfriend, being controlling, not allowing her to talk to guys ."
Counsel argued defendant's abuse ended in September 2007, two months before
the shooting, and suggested that Kerilynn controlled defendant by providing him
money, access to her car, and a cell phone.
The prosecutor countered in summation that there was no evidence or
testimony that Hall brought the gun that night. Rather, the State argued that
Kerilynn testified "she did not put her hands in the pockets of [defendant's]
jacket" or "in the pockets of his pants," and the jury could "reasonably infer a
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gun could be hidden and secreted." The State highlighted the size 3XL jacket
defendant had been wearing, which could have easily concealed the weapon.
The prosecutor posited that defendant and Hall began to argue, causing
Kerilynn to leave the kitchen to get her parents, when she heard Hall scream
prior to the first gunshot "because he saw the gun," and attempted to "get away."
The prosecutor insisted that "people who possess guns don't scream for help
as . . . Hall did," commenting:
[I]f it were really true, that would be something
[defendant] would have said early and often, and he
didn't, and that omission is damning. And the reason
why he didn't say it is because it's not what happened.
And that evidence is most clearly displayed in the
letters he wrote to his sister one week after the murder,
three days after he was charged with murder. That is
damning. That omission speaks volumes because he
knew . . . what he did. . . .
The State also theorized that when defendant "fired th[e] second shot to
the back of [Hall's] head[,] [defendant] was standing behind [Hall] as he
desperately tried to crawl away." It argued Kerilynn physically attempted to
prevent defendant from using the gun, but when she saw the gun was pointed at
her leg, she let go of defendant and observed him point the gun back at Hall
whose back was facing him while on the ground, holding the gun with his right
hand, aiming for the back of Hall's head, and firing a second gunshot.
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The prosecutor referenced defendant's statement to police offering
"nothing but the gun" in the duffel bag belonged to him and defendant's formal
statement, admitting again that the gun was his. The prosecutor referenced
defendant, when asked, "Why do you think you're here today," replied, "I really
don't know. That's what I want to know. Why am I here?" The prosecutor
asserted if Hall had a gun, defendant had the opportunity to explain that, but
instead, he lied, demonstrating "consciousness of guilt."
The prosecutor addressed Kerilynn's testimony in summation regarding
her abusive history with defendant, stating in totality:
The jealousy here . . . can [be] see[n] from the
evidence. [Hall] and [Hicks] represented the absolute
obstacle to [defendant]'s complete control over
Keri[lynn]. And that is vividly displayed in the
evidence about the incident that occurred in July of
2007. Keri[lynn] told you about it you'll recall. And
what Keri[lynn] said was [defendant] said to her I know
those two guys tried to set me up, I saw them. And
what's interesting—there's a couple of interesting
things about that.
The first interesting thing is he could have had
this conversation with her anywhere in the mall, in the
car, at a park, on Halleck Street, but he chose to drive
her to a deserted street in Newark. And he told her now
you are going to agree with me that this is what
happened, and if you don't I will punch you in the face.
And as Keri[lynn] told you, that wouldn't be the first
time he punched her. And Keri[lynn] stood up for
[Hall] and [Hicks] and she said I'm not going to lie
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when I know that they're at a carnival out of state. . . .
She said I'm not going to do that, I'm not going to do
that, I'm not going to lie about [Hall] and [Hicks], they
didn't do it. And proceeded to punch her, and she still
wouldn't do it. And he punched her again, and she still
wouldn't do it. And he kept punching her, she said,
until the right side of her face got so swollen she simply
turned her head and presented the left side to him. But
ultimately, because of the pain that was inflicted she
gave him what he wanted, and then he stopped.
The court then gave final instructions to the jury, repeating the same
cautionary instruction on its use of evidence pertaining to defendant's past abuse
of Kerilynn and his jealousy of her relationships with other men.
II.
We address defendant's arguments on appeal in the order raised in his
brief.
A. Prior Bad Acts Evidence
Defendant first challenges the admission of other crimes evidence,
asserting, "[t]he prosecution was wrongly permitted to introduce extensive,
irrelevant, and immeasurably prejudicial other-crimes testimony from [his]
former girlfriend Keri[lynn] that he frequently beat her up, including punching
her in the face causing swelling and black eyes, among other injuries." He
emphasizes that he "was charged with shooting . . . Hall, a friend (not a suitor)
of Keri[lynn], defendant's girlfriend. There is a lack of any connection between
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the prior bad acts against Keri[lynn] and the spontaneous shooting of [Hall]. "
He alternatively argues that the evidence, if permitted, should have been
sanitized of its prejudicial detail.
We review a trial court's evidentiary rulings under the abuse of discretion
standard. See State v. Medina, 242 N.J. 397, 411-12 (2020); State v. Prall, 231
N.J. 567, 580 (2018). We will not "substitute [our] own judgment for that of the
trial court" unless there was a "'clear error of judgment.'" State v. Perry, 225
N.J. 222, 233 (2016) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). The
trial court's ruling must be "so wide of the mark that a manifest denial of justice
resulted." Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
We have thoroughly reviewed the motion and trial record and conclude
the evidence was properly admitted as intrinsic evidence, or alternatively under
Rule 404(b).
Fundamentally, to be admissible at trial, evidence "must be relevant—that
is, it must have 'a tendency in reason to prove or disprove any fact of
consequence to the determination of the action.'" State v. Sanchez-Medina, 231
N.J. 452, 462 (2018) (quoting N.J.R.E. 401). The court's "inquiry focuses on
'the logical connection between the proffered evidence and a fact in issue,'" and
"[e]vidence need not be dispositive or even strongly probative in order to clear
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the relevancy bar." State v. Buckley, 216 N.J. 249, 261 (2013) (quoting Furst
v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004)). The court should ask "whether
the thing sought to be established is more logical with the evidence than without
it." Ibid. (quoting State v. Coruzzi, 189 N.J. Super. 273, 302 (App. Div. 1983)).
"Even if relevant, 'evidence may be excluded if its probative value is
substantially outweighed by the risk of . . . undue prejudice, confusion of issues,
or misleading the jury.'" Sanchez-Medina, 231 N.J. at 462 (omission in original)
(quoting N.J.R.E. 403). Probative value "is the tendency of the evidence to
establish the proposition that it is offered to prove." State v. Wilson, 135 N.J.
4, 13 (1994). To be admissible, evidence "must be 'relevant to a material issue,'
and its probative value 'must not be outweighed by its apparent prejudice.'"
Sanchez-Medina, 231 N.J. at 465 (quoting Cofield, 127 N.J. at 338).
When considering the admissibility of evidence of a defendant's unsavory
past conduct, courts view the analysis through a presumption of exclusion.
Specifically, Rule 404(b) provides:
[E]vidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in order
to show that such person acted in conformity therewith.
Such evidence may be admitted for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of
mistake or accident when such matters are relevant to a
material issue in dispute.
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However, Rule 404(b) does not exclude evidence of other crimes, wrongs,
or acts under all circumstances. See Nance, 148 N.J. at 386. "Such evidence is
inadmissible only if offered to prove a disposition to commit crime or wrong or
a specific type of act as a basis for an inference that an individual committed a
crime or wrong or act at some relevant time." Biunno, Weissbard & Zegas,
Current N.J. Rules of Evidence, cmt. 7 on N.J.R.E. 404 (2023-24). "N.J.R.E.
404(b) explicitly makes such evidence admissible to prove some other fact in
issue." Ibid.
In Cofield, the Supreme Court established a four-prong test to determine
the admissibility of other-crimes evidence under Rule 404(b):
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[127 N.J. at 338.]
A trial court must make a threshold determination as to whether bad acts
evidence is subject to a Rule 404(b) analysis or is so intrinsic to the charged
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offense as to fall outside heightened 404(b) scrutiny. Rose, 206 N.J. at 177
("[E]vidence that is intrinsic to the charged crime is exempt from the strictures
of Rule 404(b) even if it constitutes evidence of uncharged misconduct that
would normally fall under Rule 404(b) because it is not 'evidence of other
crimes, wrongs, or acts.'" (emphasis omitted)). Evidence is intrinsic if it
"directly proves" the crime charged or if the other wrongs or bad acts in question
were performed contemporaneously with, and facilitate, the commission of the
charged crime. Id. at 180 (quoting United States v. Green, 617 F.3d 233, 248-
49 (3d Cir. 2010)). This may include evidence "'to provide necessary
background information' about the relationships among the players as a proper
purpose." Id. at 181 (quoting Green, 617 F.3d at 249).
When evidence is intrinsic, it is subject to the probative value/prejudice
balancing test under Rule 403, not prong four of Rule 404(b). Id. at 177-78,
181. The Rose Court explained:
There is no need to regard . . . Rule 404(b) as
containing an exhaustive list of non-propensity
purposes permitted of other crime evidence. . . .
[T]here is no reason that our courts cannot allow,
under . . . 404(b), evidence to be admitted
for . . . "necessary background" or, as otherwise stated,
"the need to avoid confusing the jury," non-propensity
purpose.
[Ibid. (quoting Green, 617 F.3d at 249).]
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Here, we discern no error in the court's admitting the evidence of
defendant's jealous, controlling, abusive relationship with Kerilynn as intrinsic
evidence of "the full story or picture of what occurred here," and to establish the
connection between defendant, Kerilynn, Hicks, and Hall at that moment in
time. Alternatively, we conclude the evidence was properly admitted under the
Cofield test for the non-propensity purposes of establishing defendant's state of
mind and motive.
The evidence of defendant's relationship with Kerilynn, marked by a
continuous cycle of controlling, jealous behavior and domestic violence, was
inextricably integral to understanding the interrelationship between the parties
and their respective conduct the night of the shooting. Defendant's possessive
need to control Kerilynn, and his jealousy of Hicks, and by association Hall,
catalyzed defendant's explosive reaction to Hall's otherwise benign questions to
Kerilynn regarding her new job. The ongoing disputes between these
individuals related to defendant's past abuse of Kerilynn, and defendant's
specific anger over Kerilynn's relationship with Hicks and Hall, were intrinsic
to the fateful encounter.
Their relationship explained Kerilynn's conduct in running for help as
defendant's jealousy flared and her initially denying to police that she saw
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defendant aim and shoot Hall in the head. The intensity and abusive dynamic
of the relationship that precipitated the deadly shooting placed Kerilynn's
behavior, and that of others, including defendant, in context.
Even assuming the evidence did not fit neatly within the definition of
"intrinsic" proof, we conclude it was also properly admitted as evidence of
defendant's state of mind and motive under Rule 404(b). Defendant asserted
self-defense, placing his own state of mind squarely at issue. See Nance, 148
N.J. at 388 (holding the defendant put "'his own state of mind in issue,'" when
"he claimed that it was accidental and in self-defense," and therefore his "state
of mind was a relevant issue, and the motive of jealousy was a proper basis upon
which the jury could conclude that [the] defendant did or did not intend to shoot
[the victim]." (emphasis omitted) (quoting State v. Oliver, 133 N.J. 141, 155
(1993))).
Likewise, defendant's motivation for such fatal unprovoked violence was
at issue, as he attempted to cast Hall as the initial aggressor. In general, "[a]
wide range of motive evidence is generally permitted, and even where
prejudicial, its admission has been allowed in recognition that it may have
'extremely high probative value.'" Rose, 206 N.J. at 165 (quoting State v. Long,
173 N.J. 138, 164-65 (2002)). The State may prove a defendant's motive by
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multiple proffers of evidence. See ibid. That defendant beat Kerilynn at the
mere suggestion of her association with Hicks and Hall was not offered to show:
if he abused Kerilynn, he must have shot Hall. It was offered as highly probative
non-propensity proof of defendant's state of mind and motivation related to the
shooting.
We reject defendant's claim that because he harbored intense jealousy of
Hicks, there was no basis to conclude he also held animus toward Hall. The
record demonstrated defendant knew the closeness of Hall's relationship with
Hicks and Kerilynn, and he was aware Hall knew of defendant's abuse of
Kerilynn. Further, the incident in which Kerilynn was physically beaten by
defendant was in direct response to defendant's claim that she "set him up" with
Hicks and Hall, who defendant claimed were sitting outside his residence
intending harm. This evidence showed great effort was made to separate these
individuals to avoid conflict. As evidenced by the testimony recounting Hall's
approaching defendant attempting to "make peace" for Kerilynn's sake, Hall was
squarely implicated in the ongoing animosity between defendant and Hicks.
This evidence was woven into the narrative of events and interrelationship of
the parties, and its admission was not error.
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Likewise, the evidence regarding defendant's threats and attempts to
influence Kerilynn to "lie" and "discharge her statement," were properly
admitted as relevant to defendant's consciousness of guilt and to directly refute
his claim of self-defense. "Evidence of conduct of an accused subsequent to the
offense charged is admissible only if probative of guilt." State v. Mann, 132
N.J. 410, 418 (1993) (citing State v. Rechtschaffer, 70 N.J. 395, 413 (1976)). In
assessing relevance and probative value, "conduct that occurs after the charged
offense circumstantially may support inferences about a defendant's state of
mind." State v. Williams, 190 N.J. 114, 125 (2007). Our courts "specifically
have recognized the relevance of post-crime conduct to a defendant's mental
state when the conduct demonstrates consciousness of guilt." Ibid. Tampering
with or destroying evidence is "classic consciousness of guilt evidence." Id. at
129, 132-33 (recognizing that "consciousness of guilt evidence's probative value
on state of mind is weighty . . . notwithstanding that the evidence carries with it
a prejudicial effect"). Defendant's post-crime attempts to influence witnesses
related directly to defendant's state of mind and were properly admitted.
Defendant does not challenge that the second and third prongs of the
Cofield test were satisfied; nor do we discern an abuse of discretion in the
motion judge's finding that the events were close in time, and Kerilynn's
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testimony amounted to clear and convincing evidence of defendant's conduct
and jealousy. Defendant argues, however, even if we were to find the evidence
intrinsic or relevant for a non-propensity purpose, it should have been excluded
as too prejudicial under either Rules 403(b) or 404(b). He argues, alternatively,
that the court should have restricted and sanitized the evidence rather than
permit the detail that was presented at trial.
We are mindful that "evidence of a defendant's previous misconduct 'has
a unique tendency' to prejudice a jury, [and] it must be admitted with caution."
State v. Willis, 225 N.J. 85, 97 (2016) (quoting State v. Reddish, 181 N.J. 553,
608 (2004)); see also State v. Stevens, 115 N.J. 289, 302 (1989). The
"inflammatory characteristic of other-crime evidence . . . mandates a careful
and pragmatic evaluation by trial courts, based on the specific context in which
the evidence is offered to determine whether the probative worth of the evidence
outweighs its potential for undue prejudice." Stevens, 115 N.J. at 303.
However, as the Court has emphasized when assessing admissibility of prior bad
acts evidence:
[A]ll highly probative evidence is prejudicial[] because
it tends to prove a material issue in dispute. The
determinative question is whether the evidence was
unfairly prejudicial, that is whether it created a
significant likelihood that the jury would convict
defendant on the basis of the uncharged misconduct
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because he was a bad person, and not on the basis of the
actual evidence adduced against him.
[Rose, 206 N.J. at 164.]
Against this backdrop, we conclude that even employing the heightened
standard of Rule 404(b), the probative value of the evidence was not outweighed
by its prejudice. See Cofield, 127 N.J. at 338. As to Kerilynn's general
testimony regarding defendant's controlling behavior, a review of the expansive
evidence in the motion record reflects that the trial testimony was significantly
streamlined and generalized from the very specific and detailed testimony
provided at the motion hearing. Having already determined its strong probative
nexus to the material issues in the case, we do not view its prejudice as
outweighing its important probative purposes.
Regarding specific instances of conduct, the testimony about defendant's
beating Kerilynn in direct response to defendant's claim that Hall and Hicks
staked out his home for a potential confrontation was certainly descriptive.
However, we view the intensity of defendant's attack on Kerilynn as directly
tethered to defendant's reaction to his misperception of the "alliance" between
Kerilynn, Hicks, and Hall, and highly probative of the degree of anger Hicks
and Hall engendered in defendant related to Kerilynn. We are not persuaded
that the testimony, already somewhat sanitized and limited relative to the vast
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record of abuse presented at the motion hearing, was so graphic as to unfairly
distract the jury from the purpose of this evidence, particularly given the court 's
thorough limiting instruction which emphasized the purpose of the evidence.
The court repeated the cautionary limiting instruction to the jury. It
carefully advised the jury it was prohibited from considering this evidence for
any other purpose than to determine defendant's motivation for shooting Hall.
The jurors were reminded several times they were prohibited from using this
evidence to show defendant committed past violent acts, so he must have killed
Hall. Consequently, we discern no error in the court's decision to admit the
evidence, or in the nature of the testimony or the limiting instruction. The court
did not err in finding that, without this vital information, the jury would have
been blindfolded to the complete picture of the events leading to the fatal
shooting.
B. Conversation Between Hall and Defendant
Defendant next raises the related argument that the court erroneously
admitted Kerilynn's and Hicks's accounts of the conversation between Hall and
defendant that occurred approximately one week before the shooting in which
Hall called for peace. Defendant argues this testimony was inadmissible "double
hearsay" that met no exception. Hicks testified that he heard first-hand the
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conversation between Hall and defendant. Kerilynn related Hall's statements to
her about his exchange with defendant. We have reviewed the record and are
satisfied the testimony regarding Hall's out-of-court statements were properly
admitted under Rule 803(c)(3), as the statements went directly to both Hall's and
defendant's respective states of mind, which were both in issue.
Rule 803(c)(3) provides:
A statement made in good faith of the declarant's then-
existing state of mind, emotion, sensation or physical
condition (such as intent, plan, motive, design, mental
feeling, pain, or bodily health), but not including a
statement of memory or belief to prove the fact
remembered or believed unless it relates to the
execution, revocation, identification, or terms of
declarant's will.
"When a matter places a declarant's state of mind in issue, the Rule allows
a declarant's out-of-court statement to be admitted for that singular purpose."
State v. Scharf, 225 N.J. 547, 569 (2016) (citing State v. Benedetto, 120 N.J.
250, 255-56 (1990)). "The exception is applied carefully; hearsay testimony is
admissible on state of mind when it is relevant and bears a logical connection to
the issues at trial." Ibid. (citing State v. McLaughlin, 205 N.J. 185, 189 (2011)).
For example, it has been found that "[a] victim's state-of-mind hearsay
statements are relevant to assessments of his or her own actions, and thus such
statements can be relevant in the assessment of the truth of another's stated
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reasons for conduct that occurred with that victim." Id. at 570 (citing State v.
Calleia, 206 N.J. 274, 296 (2011)).
Hicks overheard the conversation directly. Therefore, his testimony was
not double hearsay, and was properly admitted. He testified that Hall made an
overture to defendant to stop the feud. This clearly suggested Hall's state of
mind, and any testimony regarding defendant's response was a party admission
under Rule 803(b) (statements of party opponent circumvent hearsay bar).
Kerilynn's testimony about Hall's statements to her were not inadmissible
because (1) when made to defendant, they reflected Hall's state of mind to relax
tensions and (2) when relayed by Hall to Kerilynn, they demonstrated Hall's
state of mind believing he had brokered peace. Accordingly, the testimony
cleared the double hurdle for admission. We further note that even if Kerilynn 's
testimony was viewed as once removed from admissibility, it was cumulative of
testimony properly admitted through Hicks and through defendant 's own party
admission to Kerilynn that the conversation took place, the two shook hands,
but, in defendant's view, changed nothing.
C. Defendant's Statements to Police
We next address defendant's argument that reversal is required based on
the trial court's erroneous admission of all his statements to police, including:
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(1) his head nod toward the duffel bag containing the gun; (2) his response when
asked if anything else in the bag belonged to him, stating, "nothing but the gun";
(3) his statement, "I don't know anything about that," after Detective Delaney
advised him police wanted to speak to him regarding a shooting; and (4) his
formal statement at police headquarters. Because the trial judge relied on the
first motion record as well as the supplemental record on remand, we have
carefully considered both records in light of defendant's arguments and the
testimony at trial, and identify no error, alone or in the aggregate, warranting
reversal of defendant's conviction.
When reviewing a trial court's decision whether to admit into evidence a
defendant's statements to police, we "defer to the factual findings of the trial
court if those findings are supported by sufficient credible evidence in the
record." State v. Sims, 250 N.J. 189, 210 (2022). Deference to a trial court's
factual findings is appropriate given the trial court's "opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy." State v. S.S., 229 N.J. 360, 374 (2017) (quoting State v. Elders, 192 N.J.
224, 244 (2007)). The trial court's legal conclusions, however, are reviewed de
novo. See State v. Hubbard, 222 N.J. 249, 263 (2015).
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"The right against self-incrimination is guaranteed by the Fifth
Amendment to the United States Constitution and this state's common law, now
embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."
State v. Nyhammer, 197 N.J. 383, 399 (2009). Both N.J.S.A. 2A:84A-19 and
N.J.R.E. 503 mirror the Fifth Amendment rule, stating that "every natural person
has a right to refuse to disclose in an action or to a police officer or other official
any matter that will incriminate him or expose him to a penalty or a forfeiture
of his estate." State v. O.D.A.-C., 250 N.J. 408, 420 (2022).
"To counteract the pressures inherent in custodial interrogation, the Court
mandated a set of warnings that law enforcement officers must give a suspect
before beginning an interrogation . . . ." State v. Tiwana, 256 N.J. 33, 41 (2023).
These include advising of the right to remain silent and the right to counsel, and
the failure to inform a defendant of his Miranda rights prior to a custodial
interrogation "creates a presumption of compulsion," and any spontaneous
statements must be suppressed, even when they "are otherwise voluntary within
the meaning of the Fifth Amendment." Oregon v. Elstad, 470 U.S. 298, 307
(1985); see also State v. O'Neill, 193 N.J. 148, 170 (2007).
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1. Pre-Miranda Statements
Defendant claims that the court improperly permitted testimony about
defendant's nodding in the direction of the duffel bag and gun in response to
Detective Rodriguez's singular question, "[Are] there any weapons in this
house[?]" when defendant was first handcuffed but prior to any Miranda
warnings. The first motion judge and the second trial judge considered the
totality of the circumstances and determined that the non-verbal gesture was
admissible under the narrow public safety exception to Miranda requirements.
Both courts heard the testimony of the police officers and determined the need
to protect the safety of the officers and others warranted a single question
regarding whether the firearm was in the house. We decide the issue recognizing
that no reference was ever made at trial to defendant's non-verbal gesture.
The public safety exception to the requirement that a person subjected to
custodial interrogation by police first be given Miranda warnings allows police
to question an accused, prior to advising of those rights, when there is a public
safety concern. See Quarles, 467 U.S. at 657. In Quarles, the police were
investigating a sexual assault committed with a handgun. Id. at 652. The
suspect was apprehended carrying an empty gun holster inside a grocery store.
Ibid. Immediately after handcuffing the suspect, and prior to administering
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Miranda rights, a police officer asked about the location of the gun. Ibid. The
suspect "nodded in the direction of some empty cartons and responded, 'the gun
is over there.'" Ibid.
The Quarles Court emphasized that "in the very act of apprehending a
suspect, [the police] were confronted with the immediate necessity of
ascertaining the whereabouts of a gun which they had every reason to believe
the suspect had just removed from his empty holster and discarded in the
supermarket." Id. at 657. The Court thus reasoned that "concern for public
safety must be paramount to adherence to the literal language of the prophylactic
rules enunciated in Miranda." Id. at 653. The Court characterized the exception
as "narrow," and "in each case . . . circumscribed by the exigency which justifies
it." Id. at 658.
The New Jersey Supreme Court adopted the public safety exception in
State v. O'Neal, 190 NJ. 601, 624 (2007) holding that the questioning of a
suspect prior to the administration of Miranda warnings was acceptable when
the situation presented an "objectively reasonable need to protect the police or
the public from any immediate danger associated" with a weapon. 190 N.J. at
618 (quoting Quarles, 467 U.S. at 659 n.8).
This court has held,
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[i]n order to establish the need to invoke the exception,
the State must generally demonstrate "(1) there was an
objectively reasonable need to protect the police or the
public; (2) from an immediate danger; (3) associated
with a weapon; and that (4) the questions asked were
related to that danger and reasonably necessary to
secure public safety."
[State v. Stephenson, 350 N.J. Super. 517, 525 (App.
Div. 2002) (quoting State v. Prim, 730 N.E.2d 455, 463
(1999)).]
The exception is not restricted to public places and may apply in private settings.
Id. at 527-28.
In the totality of any particular set of circumstances, a
missing gun in a private location, such as a home,
apartment or motel room might pose the requisite
danger to the police or public to justify the exception.
However, to the extent that public safety is implicated,
the gun must be reasonably believed to be in an
unknown location (even if private) which is accessible
to third parties and not reasonably capable of being
secured. It is the overall circumstances, not merely the
location, therefore, that controls.
[Ibid.]
Importantly, "sanction[ing] unwarned questioning about the presence or
whereabouts of a gun in every case where a gun is suspected would result in the
exception swallowing the rule." Id. at 525.
The trial court, like the prior motion judge, analyzed the circumstances
police encountered upon locating defendant and found they warranted
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application of the public safety exception. Both found the testifying officers
credible. Each determined that those officers were sent to locate and apprehend
defendant, not to investigate the shooting they knew little about or to search for
evidence of that crime. The trial court found that although the NFT officers
located and secured defendant and swept the apartment determining no other
individuals beyond defendant's sister, James, and his mother were present in the
home, the question was reasonable to protect the safety of the officers and
others. The trial court found the "firearm could have been hidden within the
cushions where . . . defendant was sitting, within his reach, his movement
hampered, but not completely impeded by handcuffs," and the others present,
although in the kitchen, were not in custody. Thus, the court determined
"locating any weapon was a paramount concern to protect the officers' and
others' safety," and the question was limited to inquiring whether there was a
gun in that house.
We recognize the officers' safety was "a paramount concern," and the
officers had little detail regarding the shooting or defendant's relationship to that
apartment or the people in it. Defendant's sister had informed police defendant
called upset and asking for money to flee the area, and, the occupants had
harbored defendant who was found on the couch after fleeing the scene of a
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shooting. However, we also recognize that the officers each testified that they
did not fear for their safety or suspect that accomplices were present, and police
had secured the others in a separate area. Further, defendant was restrained and
could have been removed from the couch to prevent any concern that he might
access a hidden firearm. Significantly, the testimony universally confirmed the
police "secured" the home, inside and out, and "froze" the scene. The exigency
and imminent threat to safety had been lifted by the overwhelming police
presence. Consequently, we cannot conclude that the State met its burden to
show that police inquiry about the gun, prompting defendant's non-verbal
pointing to the duffel bag, was proper.
Our inquiry does not end there, however, as we recognize the State never
referenced defendant's nod toward the gun at trial. Accordingly, no prejudice
resulted from the ruling that testimony about defendant's nod was admissible at
trial, unless, as defendant asserts, the Miranda violation mandates suppression
of the gun as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S.
471, 487-88 (1963); see also State v. Johnson, 118 N.J. 639, 652 (1990). The
State argues that the first motion judge's ruling—deemed law of the case by the
trial court on remand—determined that lawful consent justified the warrantless
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seizure of the gun, which would have been inevitably discovered as it sat in plain
view regardless of defendant's nod.
Indeed, the motion judge denied suppression of the gun under the Fourth
Amendment finding Thompson, who resided in and controlled the common areas
of the home, freely and voluntarily gave consent to the search confirmed in
writing. The testimony from responding officers, supported by photographs,
demonstrated that the handle of the firearm was visible in plain view through a
translucent bag protruding from the duffel bag located in the living room.
Consequently, we conclude the gun would have been readily discovered during
the subsequent valid consent search of the apartment. See State v. Robinson,
228 N.J. 529, 552 (2017) (explaining that "inevitable discovery" exception to
warrant requirement derives from the principle that deterrent purposes of
exclusionary rule are not served by excluding evidence that, but for misconduct,
police inevitably would have discovered). 6
6
Accordingly, we need not reach the State's argument that a Miranda violation
merits suppression of statements but does not extend to the "non-testimonial
fruits" derived from the statements. See State in Int. of A.S., 227 N.J. Super.
541, 548 (App. Div. 1988) (holding when "[t]he gun was discovered . . . by [the
defendant's] nontestimonial conduct of leading the police officers to the gun,"
there was "no violation of the Fifth Amendment—only a violation of the
Miranda prophylactic rule—which is not a constitutional violation").
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We next address defendant's claim that the court erred by admitting his
pre-Miranda response to Detective Delaney's question of defendant: "[L]ook, is
anything else in that [duffel] bag yours?" Defendant answered, "Nothing but
the gun, and that's it." As defendant was undeniably in custody, we consider
whether the statements resulted from police interrogation.
"[T]he Miranda safeguards come into play whenever a person in custody
is subjected to either express questioning or its functional equivalent. " Rhode
Island v. Innis, 446 U.S. 291, 300-01 (1980). "[T]he term 'interrogation' under
Miranda refers not only to express questioning, but also to any words or actions
on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect." Id. at 301 (footnotes omitted). By
contrast, "unexpected incriminating statements made by in[-]custody defendants
in response to non-investigative questions by the police without prior Miranda
warnings are admissible." State v. M.L., 253 N.J. Super. 13, 21 (App. Div.
1991).
Here both the first motion judge, and the trial court, found the police
testimony credible. The detectives described gathering defendant's items for
transport to the police station, when Detective Brazofsky held up the t-shirts and
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CDs from the duffel bag, prompting Detective Delaney's asking defendant
whether any of these items belonged to him. Detective Delaney made no
reference to the gun. Defendant offered that "nothing but the gun" and his
phone, which was on the couch, belonged to him. The trial court and the motion
judge credited the detectives' testimony that this exchange, placed in context,
was intended to identify defendant's property before transporting him from the
apartment. The court, thus, deemed the detective's question "reasonable" and
"ministerial" and "designed to ascertain what property belonged
to . . . defendant, and not designed to elicit an incriminating response."
Although we believe the better practice in these circumstances would have
been to refrain from posing any questions related to the duffel bag or its contents,
we are not persuaded the trial court erred. The record supported the court's
finding that defendant's incriminating response was unforeseeable and did not
flow from police interrogation or its functional equivalent.
Alternatively, we are convinced that any error in admitting this statement
at trial was harmless and not of "such a nature as to have been clearly capable
of producing an unjust result." R. 2:10-2. The identity of the shooter was not a
mystery; it was undisputed at trial that defendant shot Hall, and the gun was
found five feet from him in the aftermath of the shooting. That defendant
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admitted to possessing the gun was not, as defendant suggests, "devastating" to
his claim of self-defense. The statement, on its face, was open to interpretation
and—as the defense aptly highlighted at trial—could have plausibly meant
defendant admitted he possessed it at the time, as opposed to someone else in
the apartment where it was discovered. Defense counsel vigorously argued the
gun belonged to Hall who brought it to the Lowensteins' home and confronted
defendant with it. Viewed in light of the strong evidence of defendant 's guilt,
including Kerilynn's eyewitness testimony, we perceive defendant's statement,
even if admitted in error, does not warrant reversal.
We likewise perceive no error in the court's determining Detective
Delaney's merely advising defendant during transport that police were bringing
him to the police station to question him about a "shooting" amounted to
interrogation. Police do not violate Miranda's requirements by informing
defendants of the reasons for their detention. State v. Wright, 444 N.J. Super.
347, 366 (App. Div. 2016) (finding "officers' initial statements to [the]
defendant about why he was being detained" was not functional equivalent of
interrogation). The detective went no further and did not provide "updates on
the progress of the investigation," likely to elicit an incriminating response. Id.
at 367.
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Regardless, even assuming for purposes of argument the detective should
have refrained from providing even that basic information, we similarly find any
error harmless. Defendant's response was simply, "I don't know anything about
that." No inference from defendant's denying knowledge of a "shooting"
warrants reversal of this conviction rooted in substantial evidence of his guilt.
2. Defendant's Post-Miranda Formal Statement
We next consider the court's admission of defendant's formal statement.
"A defendant's statement to the police, made in custody, is admissible if it is
given freely and voluntarily, after the defendant received Miranda warnings, and
after he knowingly, voluntarily, and intelligently waived his rights." O.D.A.-
C., 250 N.J. at 413. Critically, "[t]he State must prove beyond a reasonable
doubt that a defendant's waiver was valid," before any custodial statements made
by a defendant may be used against him. Ibid.
Under New Jersey law, juveniles "receive heightened protections when it
comes to custodial interrogations." State in the Int. of A.A., 240 N.J. 341, 354
(2020). "'[T]he greatest care must be taken to assure that' a juvenile's admission
is 'voluntary, in the sense not only that it was not coerced or suggested, but also
that it was not the product of ignorance of rights or of adolescent fantasy, fright
or despair.'" Ibid. (quoting In re Gault, 387 U.S. 1, 55 (1967)).
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We employ a fact-sensitive analysis in determining whether a juvenile's
statement is knowingly, intelligently, and voluntarily provided. Relevant
considerations in the "totality of circumstances surrounding the arrest and
interrogation, includ[e] such factors as 'the suspect's age, education and
intelligence, advice as to constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature and whether physical
punishment or mental exhaustion was involved,'" as well as the suspect's
previous encounters with the law. State v. Presha, 163 N.J. 304, 313 (2000)
(quoting State v. Miller, 76 N.J. 392, 402 (1978)).
Juvenile interrogees also have the right to have a parent or guardian
present whenever Miranda warnings are administered. Id. at 322. Indeed, "the
presence of a parent is a 'highly significant factor' in the totality of the
circumstances analysis contemplated by Presha." State in the Int. of A.S., 203
N.J. 131, 154 (2010). As the Court held:
The protections outlined in Presha remain good
law. To reinforce them and avoid what took place here,
we add the following guidance. The police should
advise juveniles in custody of their Miranda rights—in
the presence of a parent or legal guardian—before the
police question, or a parent speaks with, the juvenile.
Officers should then give parents or guardians a
meaningful opportunity to consult with the juvenile in
private about those rights.
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[A.A., 240 N.J. at 358.]
We recently emphasized a juvenile's ability to consult with a parent "weighs
heavily" in the totality. State in the Int. of M.P., 476 N.J. Super. 242, 301 (App.
Div. 2023).
Defendant claims the trial court erred in admitting the statement because
police did not afford defendant an opportunity to consult with his mother or
advise either of the details of the "shooting," or that he could be charged with
murder or attempted murder, or at a minimum aggravated assault and a related
firearm offense. Here the trial court was satisfied that both defendant and his
mother were properly advised of defendant's Miranda rights, and the police used
"no coercive tactics . . . to elicit statements from . . . defendant or to have his
mother consent to the interrogation." We see no basis to disturb that ruling.
We recognize that when "a complaint-warrant has been filed or an arrest
warrant has been issued against a suspect whom law enforcement officers seek
to interrogate, the officers must disclose that fact to the interrogee and inform
him in a simple declaratory statement of the charges filed against him before
any interrogation." Sims, 250 N.J. at 213. However, here, no complaints had
been filed and the details of the encounter and the degree of Hall's injury
remained uncertain. There was no evidence in the record to reflect that the
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charges had been determined or complaints had been drawn or signed. Further,
both defendant and his mother were informed that the inquiry was about a
shooting—a clear indication of the seriousness of the situation. Defendant also
knew he was found in possession of the gun.
We also acknowledge the record does not reflect defendant and his mother
consulted prior to the questioning. Although that is an important factor, it is not
dispositive. It slides on the scale of materiality depending on the balance with
other factors. Here, defendant turned eighteen a month after this interrogation,
and was on juvenile probation after significant prior involvement with the
juvenile justice system. He and his mother—aware the questioning was about a
shooting—were provided with defendant's rights, orally and in writing, and
acknowledged those rights. Defendant elected to answer questions. As
observed by the trial court, there was no indicia of compulsion, force, or
deception by police. Accordingly, we see no basis to disturb the trial court's
finding that defendant's statements were constitutionally obtained.
D. Prosecutor's Summation
We next address the related challenge defendant raises for the first time
on appeal, arguing the prosecutor in summation improperly commented on his
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right to remain silent. Reviewing this claim through the lens of plain error, we
disagree. See R. 1:7-2; R. 2:10-2.
When not challenged before the trial court, an "error will be disregarded
unless a reasonable doubt has been raised whether the jury came to a result that
it otherwise might not have reached." State v. R.K., 220 N.J. 444, 456 (2015).
"Generally, if no objection was made to the improper remarks, the remarks will
not be deemed prejudicial. Failure to make a timely objection indicates that
defense counsel did not believe the remarks were prejudicial at the time they
were made." State v. Timmendequas, 161 N.J. 515, 576 (1999) (citation
omitted).
In assessing the propriety of the prosecutor's remarks, we do not review
the statements in isolation but in the context of "the summation as a whole."
State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (citing State v.
Carter, 91 N.J. 86, 105 (1982)). Also, the challenged remarks are to be "viewed
in the context of the entire record." State v. Bey, 129 N.J. 557, 622 (1992). In
reviewing challenges to a prosecutor's remarks, we first determine whether
misconduct occurred. See State v. Frost, 158 N.J. 76, 83 (1999). When
prosecutorial misconduct is identified, reversal is not warranted unless the
misconduct is so egregious that it deprived the defendant of a fair trial. See
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Timmendequas, 161 N.J. at 575. Prosecutors are "expected to make vigorous
and forceful closing arguments to juries." Frost, 158 N.J. at 82. They "are
afforded considerable leeway in closing arguments as long as their comments
are reasonably related to the scope of the evidence presented." Ibid. Prosecutors
are permitted to respond to arguments raised by defense counsel as long as they
do not stray beyond the evidence. State v. Munoz, 340 N.J. Super. 204, 216
(App. Div. 2001).
Defendant challenges the prosecutor's comments suggesting if defendant's
claims about Hall's possessing the gun "were really true, that would be
something [defendant] would have said early and often, and he didn't, and that
omission is damning. And the reason why he didn't say it is because it's not
what happened." The prosecutor then added "that evidence is most clearly
displayed in the letters he wrote to his sister one week after the murder, three
days after he was charged with murder. That is damning. That omission speaks
volumes because he knew . . . what he did."
Defendant also challenges the prosecutor's comments suggesting that
defendant's comments to police regarding his whereabouts at the time of the
murder and his presence in the apartment where he was arrested were untrue,
positing, "[I]f there was really a fight, if there was really a confrontation, if there
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was really [Hall] with a gun, here's a good time to explain that, you would think."
The prosecutor highlighted that, when asked "why do you think you're here,"
defendant responded, "I really don't know. That's what I want to know. Why
am I here?" The prosecutor then stated, "That's a lie. Why? Because
consciousness of guilt. He knows why he's there and this is what he chose to
say."
Undeniably, "[a] suspect has a right to remain silent while in police
custody or under official interrogation, in accordance with his state law privilege
against self-incrimination." State v. Muhammad, 182 N.J. 551, 558 (2005).
Accordingly, "a suspect's silence while in custody, under interrogation, or 'at or
near' the time of his arrest cannot be used against him in a criminal trial." Ibid.
"Making reference at trial to what a defendant did not say to the police is
commenting on his silence." Id. at 565. This applies to a defendant's silence
"whether or not that defendant had received his/her Miranda warnings." State
v. Jenkins, 299 N.J. Super. 61, 67 (App. Div. 1997).
Further, "[a] suspect who begins to speak to the police while in custody,
during interrogation, or 'at or near' the time of his arrest does not waive his right
against self-incrimination when he falls silent—the words he could have spoken
cannot be used against him." Muhammad, 182 N.J. at 568. Critically, however,
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when a defendant has elected to speak, the State may point out inconsistencies
in the prior statement and his claims at trial.
Here, defendant elected to speak to police and offered (1) he had not been
to the Lowenstein house the night of the shooting, (2) he knew nothing about a
shooting, and (3) the gun was his. Antithetical to those statements, his theory
at trial (1) placed him at the Lowenstein house at the time of the offense, (2)
conceded he shot Hall in self-defense, (3) and claimed he did so with Hall's gun.
Thus, the prosecutor's comments on defendant's voluntary statements were not
improper comments on silence; they were fair contrasts of defendant's prior
inconsistent statements with his trial theory.
Further, placed in context, defense counsel argued in summation that
defendant's statements to police regarding the gun meant only that he possessed
Hall's gun after taking it from the shooting scene. Significantly, defense counsel
emphasized that defendant's formal statement ended when defendant was talking
about the gun, intimating that defendant was about to explain his innocence
regarding the gun. Defense counsel's own reference to defendant's silence,
preceding the prosecutor's comments, invited comparison to his prior
statements. Jenkins, 299 N.J. Super. at 68 (finding prosecutor's comment on
"post-arrest silence ordinarily would be improper" during summation, but the
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defendant "opened the door" by suggesting he had not been given the
opportunity to explain what occurred).
Under these circumstances, and under review for plain error, we conclude
the prosecutor's comments were invited and reasonable, and did not constitute
conduct "so egregious as to deprive defendant of a fair trial." State v. Williams,
244 N.J. 592, 608 (2021) (quoting State v. Wakefield, 190 N.J. 397, 437 (2007)).
E. Post-Verdict Juror Inquiry
We next address and reject defendant's argument that the trial judge's
failure to voir dire the jury after a juror contacted the court following the verdict
to express personal discomfort based on the juror's own post-trial research was
error requiring reversal.
It is well-settled that "under no circumstances may post-verdict
discussions occur between the court and discharged jurors, unless those
discussions are part of a hearing ordered on good cause shown pursuant to Rule
1:16-1." Davis v. Husain, 220 N.J. 270, 274 (2014). Rule 1:16-1 provides,
"[e]xcept by leave of court granted on good cause shown, no attorney or party
shall . . . interview, examine, or question any . . . juror with respect to any
matter relating to the case." Indeed,
[i]f verdicts could be easily set aside as a result
of an investigation into secret jury deliberations,
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disappointed litigants would be encouraged to tamper
with jurors, to harass them and to employ fraudulent
practices in an effort to induce them to repudiate their
decisions. Moreover, an open invitation would be
extended to any disgruntled juror who might choose to
destroy a verdict to which he had previously assented.
[State v. Athorn, 46 N.J. 247, 250 (1966).]
Whether there is good cause to permit the post-verdict interrogation of
jurors pursuant to Rule 1:16-1 is a question of law reviewed de novo. See State
v. Griffin, 449 N.J. Super. 13, 18-19 (App. Div. 2017). However, "an appellate
tribunal must defer to the factual findings of the trial court when that court has
made its findings based on the testimonial and documentary evidence presented
at an evidentiary hearing or trial. Deference is also not confined simply to
credibility findings." Hubbard, 222 N.J. at 269.
In March 2020, after the jury was discharged, a former juror called the
trial judge's chambers "to speak with someone about her experience as a [j]uror
on a recent case." The matter was referred to the Trial Court Administrator, who
returned the juror's call and memorialized the conversation in writing. The juror
advised that she followed instructions and had done no research on the case
while sitting on the jury. She advised that "after the case was over" she did
search the case "online" and found evidence that was not presented at trial
including information that a witness was a "gang member from Newark who had
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a gun in the basement where the victim was. Also, the witness had shot a gun
before." She advised that she "regrets not knowing the background of the
witness."
The trial judge held a hearing and read the memorandum summarizing the
juror's statements. Defense counsel requested that the court "bring [the juror]
in for a limited inquiry" into "whether certain extraneous materials or extraneous
forces were at work in the jury room." Counsel further asked that the court
"bring in this juror for the limited inquiry of trying to find out whether the Rule
404(b) evidence was somehow misread or misunderstood."
The court denied defendant's request determining:
Clearly [the former juror] said she did not do any
research, she followed my direction, no research, no
newspapers. And now, after the verdict, she went
on[]line and researched the case.
....
Counsel, your application is denied. There is
absolutely[,] under the case law[,] no reason to bring
this juror back into the courtroom. . . .
....
Under no circumstances may a post-verdict
discussion occur between the [c]ourt and discharged
jurors unless those discussions are part of a hearing
ordered on good cause shown pursuant to Rule 1:16-1.
Calling back a jury for questioning following
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discharge . . . [is] to be utilized only upon a strong
showing that a litigant may have been harmed by jury
misconduct. There is absolutely no showing of jury
misconduct.
The trial judge's ruling was correct and supported by the record and case
law. We discern no error in the court's adherence to the vital prohibition on
post-verdict interrogation of jurors or intrusion into their protected deliberative
process. Defendant's arguments that pretrial rulings needlessly painted
defendant in a bad light while simultaneously "spit shin[ing]" Hicks and
"polish[ing] up" Hall in front of the jury, without more, similarly fail. Defendant
may be correct that "[i]f they were gang members, that would affect how
defendant perceived the events of that fatal night," but he offers no evidence
warranting rare post-verdict probing into the jury's deliberations.
F. Admission of Forensic Report
Defendant argues, for the first time in a self-represented supplemental
brief, that his right to confrontation was violated by admitting and allowing
expert testimony based on a State Police forensics report prepared by a deceased
non-testifying witness, citing Crawford v. Washington, 541 U.S. 36 (2004). The
State argues that defendant waived his confrontation rights when defense
counsel failed to object to admission of the report.
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The forensic report at issue is "testimonial" and, therefore, the type of
document subject to the Confrontation Clause. See State v. Michaels, 219 N.J.
1, 6 (2014). However, we conclude that by failing to raise the challenge at trial,
defendant waived this claim.
Both the Federal and State Constitutions guarantee that, in a criminal trial,
the accused has the right "to be confronted with the witnesses against him." U.S.
Const. amend VI; N.J. Const. art. I, § 10. The Confrontation Clause "prohibit[s]
the use of out-of-court testimonial hearsay, untested by cross-examination, as a
substitute for in-court testimony." State in the Int. of J.A., 195 N.J. 324, 342
(2008).
"The right of confrontation, like other constitutional rights, may be waived
by the accused." State v. Williams, 219 N.J. 89, 98 (2014). Because a criminal
defendant is not compelled to insist that the State call a live witness who might
do damage to his or her case, "[t]he defendant always has the burden of raising
his Confrontation Clause objection." Melendez-Diaz v. Massachusetts, 557 U.S.
305, 327-28 (2009) ("It is unlikely that defense counsel will insist on live
testimony whose effect will be merely to highlight rather than cast doubt upon
the forensic analysis."). "It is the defendant's choice 'to assert (or forfeit by
silence) his Confrontation Clause right.'" Williams, 219 N.J. at 99 (quoting
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Melendez-Diaz, 557 U.S. at 326).
Defendant did not contest the admission of the report or the related
testimony; his counsel cross-examined the State's experts regarding the contents.
Although his challenge is thus waived, for completeness, we perceive no error
in the testimony that was presented at trial related to the report. Importantly, "a
defendant's federal and state confrontation rights are satisfied so long as the
testifying witness is qualified to perform, and did in fact perform, an
independent review of testing data and processes, rather than merely read from
or vouch for another analyst's report or conclusions." State v. Roach, 219 N.J.
58, 61 (2014); see also Michaels, 219 N.J. at 45-46 (in the context of blood test
results, "a truly independent reviewer or supervisor of testing results" may
testify about the results if the reviewer "is knowledgeable about the testing
process, has independently verified the correctness of the machine-tested
processes and results, and has formed an independent conclusion about the
results").
At trial, the State called as experts Edward Rankin Gainsborg, Jr. and
Lieutenant James Ryan, regarding the report and their findings referencing the
report. Gainsborg, the trace evidence supervisor at the New Jersey State Police,
Office of Forensic Sciences, was accepted as an expert in trace evidence analysis
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and had performed an administrative review of the testing related to the gunshot
residue on Hall's shirt. As part of his administrative review, Gainsborg reviewed
the technician's report and concurred with its findings regarding the spread of
the residue.7 He testified that he reviewed all aspects of the testing process and
conducted an independent observation and analysis and formed his own
conclusion. He explained that his review entailed: "Reviewing the notes, the
diagrams, and the photographs, and determining that everything was done
properly and then agreeing with it," which was done "to maximize the level of
accuracy in these test[s]."
The State also called Lieutenant Ryan of the Ballistics Unit of the New
Jersey State Police, who was accepted as an expert in firearms tool mark
identification. Ryan explained that he test-fired the weapon and compared his
results to the results contained in the forensics report. Comparing the spread on
the transparencies from his test shots with those contained in the report, Ryan
determined that the handgun was fired from "a muzzle to garment distance of
greater than six inches, but less than [twenty-four]."
7
The technician who authored the report passed away before trial.
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Given the independent review performed by these experts, we are satisfied
defendant's confrontation rights were not violated when the report was admitted,
referenced, and relied upon by the testifying experts.
G. Sentencing Challenges
Finally, defendant challenges his sentence, claiming errors necessitate a
remand for resentencing. Specifically, defendant argues: (1) the sentencing
court failed to properly consider the significance of his youth before imposing
the sentence; (2) the sentencing court failed to state whether the imposition of
consecutive terms was overall fair, in violation of State v. Torres, 246 N.J. 246
(2021); and (3) his de facto life sentence, without parole, constitutes cruel and
unusual punishment.
The standard of review is "one of great deference and '[j]udges who
exercise discretion and comply with the principles of sentencing remain free
from the fear of "second guessing."'" State v. Dalziel, 182 N.J. 494, 501 (2005)
(alteration in original) (quoting State v. Megargel, 143 N.J. 484, 494 (1996));
see also State v. Miller, 205 N.J. 109, 127 (2011) ("Appellate review of the
length of a sentence is limited."). A sentence must be upheld when the "trial
court has made findings of fact that are grounded in competent, reasonably
credible evidence and [when] 'the factfinder [has] appl[ied] correct legal
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principles in exercising its discretion.'" State v. Blackmon, 202 N.J. 283, 297
(2010) (second and third alterations in original) (quoting State v. Roth, 95 N.J.
334, 363 (1984)). "The reviewing court must not substitute its judgment for that
of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014).
The record reveals the sentencing court properly considered defendant 's
youth. Indeed, defendant concedes that the sentencing court "did conduct an
analysis of the [applicable] case law," citing to Miller v. Alabama, 567 U.S. 460
(2012), and State v. Zuber, 227 N.J. 422 (2017). However, he argues that the
court's analysis "ignores that these incidents were a result of [defendant]'s
youthfulness, and ignores all the scientific findings regarding immature brain
development." This claim is belied by the record.
The sentencing court performed a proper and thorough analysis of Miller
and Zuber, explaining:
Analyzing the factors in Miller and Zuber, there
is scant evidence or information that would lead this
[c]ourt to consider that . . . defendant was immature,
impetuous, did not understand the gravity of his
conduct. He was well aware of his conduct and
attempted to cajole and threaten witnesses. He
pretended to be mentally ill. He was not subject to peer
pressure. And after he was incarcerated, then he
indicated that he was a member of the Latin Kings. He
became a member of the Latin Kings after his
incarceration.
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He did not have contact with his father for five
years, but had the love of his mother and his siblings.
He ignored the rehabilitation efforts provided to him
though the juvenile justice system. He had problems
with authority as evidenced in his history of a [violation
of probation] and resisting. He ignored the efforts of
[the] Lowenstein[s] to better himself. While . . . the
Lowensteins tried to help . . . defendant[,] he beat their
daughter. There is nothing in the record before this
[c]ourt to indicate that . . . defendant had any
intellectual limitations that would prevent him from
dealing with his own attorney.
The sentencing court further explained:
I have considered the factors set forth in Miller v.
Alabama, directing this [c]ourt to consider potential
mitigating qualities of youth when sentencing a
juvenile to life imprisonment without the possibility of
parole. I also acknowledge that in State v. Zuber the
New Jersey Supreme Court advised . . . the sentencing
court—that the Miller factors should also apply when a
juvenile's sentence constitute[s] the functional
equivalent to life imprisonment without parole.
I feel compelled to accept the State's
recommendation to sentence . . . defendant to a life
sentence. There are no mitigating factors that lead this
[c]ourt to believe that . . . defendant can be
rehabilitated, rather I find that he is irreparably
corrupted.
Plainly, the court fairly considered defendant's youth in imposing the sentence.
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Similarly, the court properly considered the overall fairness of
consecutive sentencing. In considering whether to impose consecutive
sentences, the court noted:
Zuber instructs the [c]ourt to consider Miller factors
along with the factors set forth in . . . [State v.]
Yarbough, [100 N.J. 627 (1985),] when considering
whether to impose multiple consecutive sentences on
juveniles which would result in a lengthy prison term,
the functional equivalent to life imprisonment without
parole, which would take into account how children are
different and how these differences counsel against
irrevocably sentencing children to a lifetime in prison.
The Supreme Court recognized the mitigating
qualities of youth, including immaturity, impetuosity,
and failure to appreciate risks and consequences, family
and home environment, family and peer pressures, and
inability to deal with police officers or prosecutors or
the juvenile's own attorney, and the possibility of
rehabilitation.
The sentencing court analyzed the Yarbough factors and determined that the
imposition of a consecutive term of four years on top of the life sentence for
murder was appropriate.
The sentencing findings were thorough and sufficient to support the
consecutive sentence. The court determined the firearms possession and the
hindering offenses were separate crimes, with different objectives, at separate
times, and thus determined the custodial terms for those offenses should run
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consecutively. The court found the consecutive sentence appropriate as the
crimes were "committed at different times and at separate places and were not
committed so closely in time and place to indicate a single period of abhorrent
behavior." We note Torres was decided after defendant was sentenced in this
matter. Because Torres did not announce a new rule of law and simply
reemphasized the longstanding requirement that a sentencing court address the
overall fairness of a consecutive sentence, it does not require retroactive
application. See State v. Burstein, 85 N.J. 394, 403 (1981) (stating "retroactivity
can arise only where there has been a departure from existing law").
Regarding defendant's constitutional claim that his de facto life sentence,
without parole, constitutes cruel and unusual punishment, the Court in State v.
Comer, 249 N.J. 359 (2022), "created a procedure for juvenile offenders
sentenced to the murder statute's mandatory [thirty]-year parole bar to petition
the court for a hearing after" serving at least twenty years in prison for the
sentencing court to assess the Miller factors. State v. Thomas, 470 N.J. Super.
167, 196-97 (App. Div. 2022). As the State concedes, "the procedure[s] set forth
in . . . Comer . . . must be applied to defendant's sentence." Accordingly,
defendant will have a meaningful opportunity to seek resentencing, and his is
not a de facto life sentence.
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We perceive no error, singularly or cumulatively, at trial or in sentencing,
warranting reversal.
Affirmed.
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Case Information
- Court
- N.J. Super. Ct. App. Div.
- Decision Date
- July 24, 2025
- Status
- Precedential