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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NOT FOR PUBLICATION WITHOUT THE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-3391-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE VENABLE, a/k/a
JERMAINE R. VENABLES,
JERMAINE ALFORD,
JAMIR SAULTERS,
JERMAINE SAULTERS,
and RASHEED LATIFF,
Defendant-Appellant.
Argued December 11, 2024 – Decided March 13, 2025
Before Judges Currier, Paganelli, and Torregrossa-
O'Connor.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 18-10-2532.
Tamar Y. Lerer, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer Nicole Sellitti,
Public Defender, attorney; Tamar Y. Lerer, of counsel
and on the briefs).
Rachel M. Lamb, Assistant Prosecutor, argued the
cause for respondent (Grace C. MacAulay, Camden
County Prosecutor, attorney; Rachel M. Lamb, of
counsel and on the brief).
PER CURIAM
Defendant appeals from his convictions and sentence after a jury trial. He
alleges, among other things, that the trial court erred in: allowing unreliable
expert ballistics testimony; improperly precluding relevant third-party guilt
evidence; and failing to provide proper jury instructions. Defendant also seeks
to vacate his conviction for conspiracy and asserts that his sentence is excessive.
After a careful review of the factual record and applicable principles of law, we
discern no error and affirm.
I.
On July 30, 2018, at approximately 7:42 a.m., someone on a bicycle fired
a semiautomatic handgun five times into a silver Toyota at the intersection of
Fourth Avenue and Kaighns Avenue in Camden, causing the death of Johnathan
Rojas and injury to a passenger—Devon Fisher. The shooter then got off the
bicycle and into a car.
There were no eyewitnesses to the shooting, but there was one witness
who saw the bicyclist afterwards. Alan Franchi testified that immediately after
the shooting, at approximately 7:43 a.m., he saw a group of people running down
A-3391-21
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Kaighns Avenue, followed by a person riding a red bicycle. He described the
bicyclist as a tall and thin man, "dressed all in black," and wearing a black ski
mask. Franchi saw the man get off the bicycle, which he left on the side of the
street before getting picked up by the driver of a silver SUV on the corner of
Third Street and Kaighns Avenue, one block away from the shooting. Franchi
jotted down the SUV's New Jersey license plate number, which a testifying
detective later identified as a silver Chevrolet SUV.
At the scene, officers observed bullet holes in the front windshield of the
Toyota, a broken driver's side window, cigarette butts, broken glass, and five
bullet shell casings, each marked "Win 40 S&W." After procuring a warrant,
police searched the Toyota and observed apparent bullet holes in the dashboard
and front passenger seat. Bullet fragments were found embedded inside the
dashboard area, under the driver's seat, and on the rear passenger's side seat .
Shell casings and a suspected bullet specimen were found at the scene and other
bullet specimens were recovered from Rojas's body. Partial latent fingerprints
were recovered on both front exterior doors and the sunroof.
Footage from multiple surveillance cameras and a ShotSpotter activation
recording corroborated Franchi's testimony. Sergeant Gordon Harvey of the
Camden County Police Department testified about the surveillance videos
A-3391-21
3
obtained from the area of the shooting. He explained that multiple video clips
from the surveillance footage depicted that the Chevy was in the immediate area
of the shooting at approximately 7:42 a.m., picked up the bicyclist at
approximately 7:43 a.m., and drove to Demetrise Williams's residence, arriving
at approximately 7:48 a.m.
Williams testified defendant, a friend she knew as "Maine," called her
twice on July 30, 2018, at approximately 7:49 a.m. and 7:51 a.m., asking if he
could stay with her because his girlfriend had kicked him out of her house after
an argument. Defendant's girlfriend lived on the same block as Williams.
Williams told defendant he could stay with her, and defendant arrived at her
home, approximately five to ten minutes later. He was carrying an inflatable
mattress box that he put in her living room closet. She also testified that
defendant left and then came back later with his cousin, Dametre Tokley.
Williams said that Tokley, whom she knew as "Meech," knocked on her
door while defendant was inside her home. She told Tokley that she did not
want him in her home, and both defendant and Tokley left. Williams also
testified that she did not know a person named Nasir Mason, and that he was not
at her home on the morning of July 30, 2018.
A-3391-21
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Detectives located the parked Chevy and as they conducted surveillance,
they saw defendant and Tokley enter a store, and drive to Williams's house.
Both defendant and Tokley were stopped and were taken into custody. A
testifying detective stated that Devon Fisher and Tokley were suspected drug
dealers in the area of the shooting.
After defendant and Tokley were arrested, Williams's house was searched.
During the search, a gun fell out of the closet in the living room. The gun was
a semi-automatic .40 Glock model 22 handgun, which contained a round in the
chamber, as well as a loaded extended round magazine. Subsequent testing did
not reveal any fingerprints or usable DNA on the handgun.
During a search of the Chevy, officers recovered four cell phones, $440
in cash, two clear plastic bags, and eighty-nine zipper-lock plastic baggies which
contained a substance that was suspected to be heroin, stamped on the front with
the words "Call of Duty." The search of the vehicle also recovered the
following: a black hooded sweatshirt, a bucket hat, a reversible camouflage
bucket hat, a black mask, blue disposable gloves, an identification card and mail
belonging to Tokley. The bullets in the magazine, as well as the one in the firing
chamber of the handgun, all had the same "Win 40 S&W" stamp.
A-3391-21
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II.
A grand jury charged defendant and Tokley in an indictment with first-
degree murder, N.J.S.A. 2C:11-3(a)(1)(2) (count one); first-degree conspiracy
to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) (count two);
first-degree attempted murder, N.J.S.A. 2C:5-1(a) and N.J.S.A. 2C:11-3(a)(1)
(count three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count
four); second-degree possession of a weapon for unlawful purpose, N.J.S.A.
2C:39-4(a) (count five); and second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39(5)(b) (count six). Defendant was separately charged with
second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1)
(count seven); and first-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(j) (count eight). The cases were severed for trial.
III.
Defendant voluntarily gave a statement to the police after his arrest, which
was played for the jury. He denied knowledge of or any involvement in the
shooting. Defendant stated that he lived in Lindenwold and also with his child's
mother in Camden but on July 29, 2018, he stayed in a motel. On the morning
of July 30, 2018, Tokley picked him up at the motel and dropped him off at the
child's mother's house, later picking him up again. According to defendant, after
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they stopped at another friend's house and went to a store, Tokley parked his car
and the police stopped them.
Defendant told the police that at some point that morning, Tokley picked
up a person called "Naz" and dropped him off at a store near the scene of the
shooting. Defendant did not know Naz's real name.
When the Chevy was processed for evidence, fingerprints were found on
the car's exterior. Testing of the fingerprints returned as potentially matching
those of Nasir Mason. Testifying officers stated they did not consider Mason a
suspect in Rojas's homicide and did not investigate him.
At the time of his arrest, defendant was wearing Nike sneakers. Based on
the surveillance videos, it appeared to the investigating officers that the shooter
was wearing Nike sneakers. After being shown the video footage during his
interview, defendant told the officers that he was not the person in the picture.
Tokley signed an affidavit, which was read into the record during the trial.
He stated he placed the gun in the closet at Williams's house, and he was alone
when he did so.
IV.
Prior to trial, defendant moved to limit the State's firearm expert's
testimony under N.J.R.E. 702 and N.J.R.E 403. Defendant did not challenge the
A-3391-21
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expert's qualifications, instead he argued that the firearm toolmark identification
testimony was not scientifically reliable under the Daubert1 standard. The court
denied the motion, determining that the expert testimony on firearm and
toolmark identification "[wa]s well-established," and New Jersey courts had
repeatedly found toolmark analysis scientifically reliable under the Frye2
standard and Rule 702. The court further stated that defendant failed to prove
that the prejudicial value of the evidence was outweighed by its probative value
under Rule 403. The court subsequently issued a written order consistent with
its oral decision.
Sergeant Edward Burek, Jr. of the New Jersey State Police was admitted
as an expert in firearms and toolmark identification. He testified that he
examined and tested the handgun, five shell casings, and nine bullet fragments
recovered during the murder investigation. He explained that the testing
performed on the discharged metal bullet jackets revealed that the bullets found
at the crime scene were fired from the suspected handgun because the test jackets
and sample jackets had the same microscopic features. He also explained that
the tests performed on the discharged bullet cartridge cores indicated that they
1
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
2
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
A-3391-21
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were fired from the suspected handgun because the test and sample cartridge
cores had the same extractor marks and firing pin drag, which are features
unique to a specific firearm. Burek testified that the suspected handgun was
operable and capable of being discharged, and that the magazine fit and properly
functioned with the suspect handgun.
Burek concluded that the "discharged metal jackets" found at the scene
were "discharged from . . . [the] firearm" found in Williams's closet. He also
testified that three bullet fragments found during the autopsy were "discharged
from the submitted pistol."
V.
During the trial, the court denied defendant's motion to take judicial notice
of Nasir Mason's criminal history and the facts surrounding Mason's
convictions. Mason had been arrested on drug charges in the same
neighborhood where the shooting occurred. Defendant argued that Mason's
convictions supported his third-party guilt defense that Mason shot and killed
Rojas.
The court denied the motion, finding defendant's request was beyond the
scope of judicial notice under N.J.R.E. 201(b)(4), and it would be improper to
take judicial notice of judgments of conviction "simply because they have been
A-3391-21
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filed with a court," and that admission of such evidence would inappropriately
"circumvent the rule against hearsay." The court further found that defendant
sought relief based on "pure speculation" because he did not present any
evidence that either Mason or Rojas sold drugs, that the two were drug rivals,
that Mason killed Rojas because of that rivalry, or that Mason was the person
referenced as "Naz."
VI.
The court also denied defendant's motion for an alibi jury instruction. The
court found that defendant did not comply with the notice requirements under
Rule 3:12-2 but even if he had, the evidence did not support an alibi instruction
because defendant failed to establish proof of an alibi. The court subsequently
issued a written order consistent with its oral decision.
VII.
The jury found defendant guilty of counts one, two, four, five, and six and
acquitted him of count three. The jury subsequently found defendant guilty of
the certain persons offenses.
The court sentenced defendant to an aggregate term of seventy-five years,
with an eighty-five-percent period of parole ineligibility under the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.
A-3391-21
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VIII.
On appeal defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT ERRED IN ALLOWING
UNRELIABLE EXPERT TESTIMONY
PURPORTING TO DETERMINE THAT THE GUN
FOUND WHERE DEFENDANT WAS STAYING
WAS THE ONE THAT FIRED THE SHOTS THAT
KILLED THE VICTIM.
A. The Trial Court Has a Duty to Ensure that Only
Reliable Forensic Testimony is Admitted.
B. Firearms and Tool Mark Examination—A Primer.
C. There Is No Scientific Basis For The Claim That
Firearms Examiners Can Definitively Determine That
Ammunition Came From A Specific Gun. Testimony
. . . That Purports To Do So Is Unreliable.
D. The Expert's Testimony That The Guns And Casings
Were Fired From The Specific Gun Was Scientifically
Unsupported and Unreliable. Its Admission Was
Unduly Prejudicial And Necessitates Reversal of
Defendant's Convictions.
POINT II
THE TRIAL COURT ERRED IN PRECLUDING THE
DEFENSE FROM ELICITING RELEVANT AND
PROBATIVE TESTIMONY THAT SUPPORTED ITS
THIRD-PARTY GUILT DEFENSE AND
ALLOWING THE STATE TO IMPROPERLY
UNDERMINE IT.
A-3391-21
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POINT III
THE PRESENTATION OF AN ILLEGALLY
INCORRECT BASIS TO FIND DEFENDANT
GUILTY, COMBINED WITH JURY
INSTRUCTIONS THAT WERE INSUFFICIENT TO
GUIDE THE JURY IN ITS DELIBERATIONS,
REQUIRES REVERSAL OF DEFENDANT'S
CONVICTIONS.
A. The State Argued An Incorrect Theory Of
Accomplice Liability, And The Trial Court’s
Instruction Did Not Correct The Legal Misconception
Presented To The Jury.
B. The Trial Court Failed To Provide Two Necessary
Instructions: The Identification And Alibi Charges.
C. The Improper Explanation Of Accomplice Liability,
As Well As The Missing Identification And Alibi
Instructions, Require Reversal Of Venable's
Convictions.
POINT IV
BECAUSE THERE IS NO EVIDENCE OF ANY
AGREEMENT, A JUDGMENT OF ACQUITTAL
MUST BE ENTERED ON THE CHARGE OF
CONSPIRACY TO COMMIT MURDER.
POINT V
EVEN IF ANY ONE OF THE COMPLAINED-OF
ERRORS WOULD BE INSUFFICIENT TO
WARRANT REVERSAL, THE CUMULATIVE
EFFECT OF THOSE ERRORS WAS TO DENY
DEFENDANT DUE PROCESS AND A FAIR TRIAL.
POINT VI
AT SENTENCING, THE TRIAL COURT
IMPROPERLY CONSIDERED ARRESTS THAT DID
A-3391-21
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NOT LEAD TO CONVICTIONS AND FAILED TO
CONSIDER THE IMPACT OF DEFENDANT'S
ADVANCED AGE AT RELEASE. THE SENTENCE
MUST BE VACATED, AND THE MATTER
REMANDED FOR A RESENTENCING.
IX.
We begin by considering defendant's argument regarding the expert
ballistics testimony. He contends the trial court erred by allowing the State to
present unreliable expert testimony establishing the gun found at Williams's
house was the one used by the shooter who killed Rojas.
We review a court's decision to admit or bar evidence for an abuse of
discretion. State v. Nelson, 173 N.J. 417, 470 (2002).
In his pretrial motion, defendant sought to bar the State's firearms expert
from using the following terms: "match," "positive identification,"
"identification," "individualization," and "no error rate." According to
defendant, "there is no scientific basis for the claim that firearms examiners can
definitively determine that ammunition came from a specific gun," and
"testimony that purports . . . to do so is unreliable."
In its oral and written decisions denying the motion, the trial court noted
that all the case law presented by defendant relied on the Daubert standard. The
trial court cited to State v. Ghigliotty, 463 N.J. Super. 355 (App. Div. 2020), in
A-3391-21
13
stating that "in criminal cases, the New Jersey Supreme Court has continued to
rely on the Frye standard to access reliability. Further, I find that the probative
value of this proffered evidence outweighs any prejudicial impact."
Subsequent to the trial court's pre-trial ruling and the jury's verdict here,
our Supreme Court reconsidered the standard for the admission of expert
evidence under Rule 702 in criminal cases in State v. Olenowski, 253 N.J. 133,
139 (2023), and "going forward" adopted the Daubert standard in lieu of the
Frye standard. However, the Court stated: "Nothing in today's decision disturbs
prior rulings that were based on the Frye standard." Id. at 154. Moreover, the
Court stated that when determining admissibility, "[j]udges may also continue
to consider whether a principle is generally accepted by the scientific
community." Id. at 152.
For expert testimony to be admitted under Rule 702,
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)
the field testified to must be at a state of the art such
that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to
offer the intended testimony.
[In re Accutane Litig., 234 N.J. 340, 349 (2018)
(quoting State v. Kelly, 97 N.J. 178, 223 (1984)).]
A-3391-21
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At the time of defendant's trial in February 2022, a proponent of scientific
evidence could establish the second prong of the test by presenting:
(1) . . . expert testimony as to the general acceptance,
among those in the profession, of the premises on which
the proffered expert witness based his or her analysis;
(2) . . . authoritative scientific and legal writings
indicating that the scientific community accepts the
premises underlying the proffered testimony; and (3)
. . . judicial opinions that indicate the expert's premises
have gained general acceptance.
[Kelly, 97 N.J. at 210.]
However, "[p]roof of general acceptance does not mean that there must be
complete agreement in the scientific community about the techniques,
methodology, or procedures that underlie the scientific evidence." State v.
Chun, 194 N.J. 54, 91-92 (2008). Further, general acceptance
does not require complete agreement over the accuracy
of the test or the exclusion of the possibility of error.
. . . Neither is it necessary to demonstrate that the
techniques, methodology, and procedures are infallible.
Nor is it necessary that acceptance within the scientific
community be unanimous. . . . . Every scientific theory
has its detractors.
[State v. Harvey, 151 N.J. 117, 171 (1997).]
As we have previously stated: "[T]ool mark analysis is not a newcomer
to the courtroom." State v. McGuire, 419 N.J. Super 88, 130 (App. Div. 2011).
"Testimony by tool mark experts has been admitted in New Jersey courts [under
A-3391-21
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the Frye standard] without objection," as well as in "other jurisdictions." Id. at
130-31; see also Ghigliotty, 463 N.J. Super. at 375 (discussing well-established
history of tool mark identification experts in New Jersey ballistics
jurisprudence).
The trial court properly admitted the State's expert testimony under Rule
702 and Frye. Burek's testimony concerned a subject matter "beyond the ken of
the average juror," Burek's field was "at a state of the art such that an expert's
testimony could be sufficiently reliable," and Burek had "sufficient expertise to
offer the . . . testimony." In re Accutane, 234 N.J. at 349 (quoting Kelly, 97 N.J.
at 223).
The trial court correctly pointed out that defendant's argument was
substantially reviewed and rejected by this court in McGuire. There, we
considered and rejected one of the authorities on which defendant relies here,
the 2009 NAS study.3 We explained:
Defendant's criticism of tool mark analysis is
extrapolated from commentary in [the 2009 NAS
report, which] . . . was issued . . . after defendant's trial.
It contains some criticism of tool mark analysis,
including lack of information about variances among
individual tools, lack of a clearly defined process, and
3
In support of his argument before the trial court, defendant provided three
reports generated by the National Research Council and the President's Council
of Advisors on Science and Technology (NAS), dated 2008, 2009, and 2016.
A-3391-21
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a limited scientific base of knowledge. . . . But the NAS
report does not label the discipline "junk science." It
acknowledges that tool mark analysis can be helpful in
identifying a class of tools, or even a particular tool,
that could have left distinctive marks on an object. . . .
The report concludes that development of a precisely
specified and scientifically justified testing protocol
should be the goal of tool mark analysis. . . .
Since the NAS report was issued, at least two
courts have refused to exclude forensic evidence based
on criticism contained in that report. See United States
v. Rose, 672 F. Supp. 2d 723, 725 (D. Md. 2009)
(fingerprint analysis); Johnston v. State, 27 So. 3d 11,
20-23 (Fla.) (fingerprint and footwear analysis), cert.
denied, . . . 31 S. Ct. 459 . . . (2010). As noted in those
cases, the purpose of the NAS report is to highlight
deficiencies in a forensic field and to propose
improvements to existing protocols, not to recommend
against admission of evidence.
[McGuire, 419 N.J. Super. at 131-32.]
On appeal, defendant continues to rely on the NAS reports and case law
solely premised on the Daubert standard, despite the Court's ruling in
Olenowski. The argument lacks merit.
Here, the trial court correctly determined that under existing case law ,
firearm and tool mark identification is based on "a foundation of knowledge,"
that has been "organized over time," and "described in forensic [textbooks],
scientific literature, reference material[s], training manuals, and peer-reviewed
scientific journals." Defendant had the opportunity to challenge the reliability
A-3391-21
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and credibility of the expert's testimony on cross-examination. The trial court
did not err in denying defendant's motion and permitting the State's expert
ballistics testimony.
X.
Defendant claims that the trial court erred by restricting him from eliciting
relevant and probative testimony that supported his third-party guilt defense.
According to defendant, "[t]he defense theory was that Tokley committed the
crime with Nasir Mason," and "that Mason had the motive to kill Rojas because
they were engaged in a drug dealing rivalry."
As stated, defendant requested the court take judicial notice of Nasir
Mason's criminal history. Rule 201(b)(4) provides that the court may judicially
notice a fact, including the "records of the court in which the action is pending
and of any other court of this state or federal court sitting for this state." N.J.R.E.
201(d) provides that "[t]he court shall take judicial notice if a party requests it
on notice to all other parties and the court is supplied with the necessary
information."
"The purpose of judicial notice is to save time and promote judicial
economy by precluding the necessity of proving facts that cannot seriously be
disputed and are either generally or universally known." State v. Silva, 394 N.J.
A-3391-21
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Super. 270, 275 (App. Div. 2007) (noting case law supports the "proposition that
facts that can be reasonably questioned or disputed may not be judicially
noticed"). "Judicial notice cannot be used 'to circumvent the rule against hearsay
and thereby deprive a party of the right of cross-examination on a contested
material issue of fact.'" Ibid. (quoting RWB Newton Assocs. v. Gunn, 224 N.J.
Super. 704, 711 (App. Div. 1988)). "Because judicial notice may not be used to
deprive a party of cross-examination regarding a contested fact, the doctrine also
cannot be used to take notice of the ultimate legal issue in dispute. " Ibid.
The United States Constitution and the New Jersey Constitution
"guarantee criminal defendants a meaningful opportunity to present a complete
defense." State v. Handy, 215 N.J. 334, 350 (2013) (quoting State v. Garron,
177 N.J. 147, 168 (2003) (internal quotation marks omitted)). "The
constitutional right to present a defense confers on the defendant the right to
argue that someone else committed the crime." State v. Fortin (Fortin II), 178
N.J. 540, 590 (2004). "Evidence in support of third-party guilt, or any theory
offered by the prosecution or defense, must satisfy the standards of the New
Jersey Rules of Evidence." Id. at 591. To do so, "the proof offered [must have]
a rational tendency to engender a reasonable doubt with respect to an essential
feature of the State's case." Ibid. (quoting State v. Sturdivant, 31 N.J. 165, 179
A-3391-21
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(1959)). "That standard does not require a defendant to provide evidence that
substantially proves the guilt of another, but to provide evidence that creates the
possibility of reasonable doubt." State v. R.Y., 242 N.J. 48, 66 (2020) (quoting
State v. Perry, 225 N.J. 222, 238 (2016)).
"[O]rdinarily, and subject to rules of competency, an accused is entitled
to advance in his defense any evidence which may rationally tend to refute his
guilt or buttress his innocence of the charge made." State v. Garfole, 76 N.J.
445, 453 (1978). However, in advancing a theory of third-party guilt, "[t]he
connection between the third party and the crime cannot be left to conjecture."
Fortin II, 178 N.J. at 591. Indeed, "the concern with respect to claims of third-
party guilt is 'the ease in which unsupported claims may infect the process.'"
R.Y., 242 N.J. at 66 (quoting State v. Loftin, 146 N.J. 295, 345 (1996)). "To
avoid that issue, a defendant may not seek to introduce evidence in order 'to
prove some hostile event and leave its connection with the case to mere
conjecture.'" Id. at 66-67 (quoting Sturdivant, 31 N.J. at 179). "[T]he evidence
a defendant seeks to admit in support of a third-party guilt defense must be
capable of demonstrating 'some link between the [third-party] evidence and the
victim or the crime.'" Perry, 225 N.J. at 239 (second alteration in original)
(quoting State v. Koedatich, 112 N.J. 225, 301 (1988)). In other words,
A-3391-21
20
"[s]omewhere in the total circumstances there must be some thread capable of
inducing reasonable men to regard the event as bearing upon the State's case."
Sturdivant, 31 N.J. at 179.
"The decision to admit or exclude evidence of third-party guilt is
particularly fact-sensitive and rests within the trial court's discretion." R.Y., 242
N.J. at 67 (quoting Perry, 225 N.J. at 239) (internal quotation marks omitted).
"We defer to a trial court's evidentiary ruling absent an abuse of discretion. "
State v. Garcia, 245 N.J. 412, 430 (2021). Courts will not substitute their
judgment unless the evidentiary ruling is "so wide of the mark" that it constitutes
"a clear error in judgment." State v. Medina, 242 N.J. 397, 412 (2020) (first
quoting State v. Brown, 170 N.J. 138, 147 (2001); and then quoting State v.
Scott, 229 N.J. 469, 479 (2017)).
Defendant requested the trial court take judicial notice under Rule
201(b)(4) that, among other things, Mason was charged in December 2018 with
first-degree aggravated manslaughter, fourth-degree aggravated assault by
pointing a firearm, and second-degree possession of a weapon for an unlawful
purpose and convicted in 2019 of third-degree possession with the intent to
distribute a controlled dangerous substance. Defendant also sought judicial
A-3391-21
21
notice that "[Mason's] drug distribution took place on June 11, 2018, and that it
occurred in the area of 4th and Liberty in Camden, New Jersey."
Defendant further requested the court take judicial notice that in May
2021,
Nasir Mason was charged with drug offenses, unlawful
possession of a weapon, receiving stolen property,
resisting arrest, certain persons not to possess a
weapon, and that on July 21, 2021, Nasir Mason was
indicted for third-degree resisting arrest, third-degree
possession of a controlled dangerous substance, third-
degree possession with intent to distribute a controlled
dangerous substance, second-degree unlawful
possession of a handgun, and second-degree certain
persons not to have a firearm.
Defendant argued that the facts were "relevant to [his] third-party guilt
defense in that they show . . . Mason's motive, opportunity, and ability to kill
. . . Rojas."
The court denied the application in a well-reasoned written decision. The
court determined the request was "beyond the scope of N.J.R.E. 201(b)(4),"
finding it "cannot take judicial notice of the contents of a criminal complaint,
judg[]ment of conviction, or probable cause statement for the purpose of
determining the truth of what they assert simply because they have been filed
with a court and thus were a part of a court record." The court also noted that
"evidence sought for judicial notice cannot circumvent the rules of evidence."
A-3391-21
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The court stated:
Defense [c]ounsel has failed to provide this [c]ourt with
any evidence to corroborate their theory that the
proffered facts show that . . . Mason had a motive to kill
. . . Rojas and wound . . . Fisher. Rather he is seeking
this relief on pure speculation. For instance, there has
been nothing presented to the [c]ourt to support
[c]ounsel's argument that the victim and . . . Mason
were drug rivals. There was also nothing shared with
the [c]ourt that the victim sold drugs, but it appears to
be uncontested by the parties that the victim was found
with drugs in his possession. However, even if the
victim sold drugs, there is not a scintilla of
corroborating information that . . . Mason wanted to kill
the victim because the victim sold drugs.
. . . I find that the [d]efense has failed to show a
connection between two people selling drugs in an
urban community and a motive for the murder of the
victim. Instead, the [d]efense would have this [c]ourt
speculate a connection between . . . Mason's 2019
conviction and the motive for the victim's death.
I also find that there is no supporting evidence to
suggest that . . . Mason is the individual identified as
"Naz." Rather, [d]efense [c]ounsel has left the
identification of "Naz" to mere conjecture whereby he
seeks the [c]ourt to accept his theory that "Naz" is an
abbreviation for Nasir as the name Joe would be an
abbreviation for the name Joseph.
Nevertheless, the court's order permitted defendant "to present testimony that
. . . Mason was arrested on June 11, 2018, the charges he was arrested on, and
the location of the incident."
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23
Notwithstanding the order, defense counsel sought to elicit additional
information, specifically "from the arresting officer that . . . Mason was arrested
with suspected heroin, and the brand of the heroin, or the stamp that was on the
heroin." Defense counsel explained:
I think it's very relevant to show that . . . these are
different stamps. . . . Rojas' brand is Call of Duty. . . .
Mason's brand is Mr. Nice Guy. So these are different
brands.
And I think that's important to . . . come in, in
order for me to be able to argue that these are rival drug
dealers because they're selling different brands.
In again denying the application, the court responded:
There's absolutely no evidence that this person
Na[z] is . . . Mason. . . . There's absolutely no evidence
that you've shown this [c]ourt that there was even a
drug rivalry amongst the parties in this area.
If you look at inner cities, . . . and some suburban
communities, there are different facets of people that
sell drugs. But it does not mean there's a drug rivalry
unless you have evidence to come in the courtroom
with. Not speculation, but evidence. And that's what
the law says.
I'm not allowing you to go into brands. I am only
allowing the three areas that I stated, date of arrest,
location of arrest, and what this individual was charged
with.
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24
Several days later, defense counsel again raised the issue and asked the
court to permit "evidence regarding the fact that . . . Mason was arrested with
heroin that was stamped with the brand 'Mr. Nice Guy.'" The court declined the
request, explaining:
You want to put into the case—your theory is that
there was a rivalry between someone named Nas, who's
not identified as . . . Mason. . . . That there was a rivalry
between the victims and someone named Nas. That's
what's before the [c]ourt. That's all that's before the
court.
. . . There's . . . absolutely no evidence that there
was a rivalry between . . . Mason and . . . the victims.
Your proposition is that they both sold different
types of drugs that w[ere] stamped with different
names. Respectfully, my response is[] so what? So
what they sold two different types of drugs? Vendors
on the street sell different types of articles. Stores
themselves sell different types of articles. The mere
fact the world is driven by competition in the business
world. To sell drugs is illegal, but it's a business.
People look at it as a business. There's always
competition in business.
But you have absolutely not a scintilla of any
evidence that . . . Mason and the victims were involved
in a drug rivalry. . . .
I've allowed you to put forth, . . . that . . . Mason
sold drugs . . . a month before or was arrested a month
before this incident. I'm still allowing you to do it.
There's no relevancy. . . . But I still allowed you to do
it.
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25
You're permitted to bring in the [o]fficer pursuant
to my order. . . . That will bring out the location that
. . . Mason was arrested, the date of his arrest, and what
his arrest charges were for. That's it.
. . . Mason is not on trial before the [c]ourt. You
have nothing that ties in your theory of some type of
drug rivalry. I'm not going to allow you to go any
further than that.
We are satisfied the court's rulings were supported by its factual findings
and the applicable case law. The court correctly determined it could not take
judicial notice of the contents of a criminal complaint, judgment of conviction,
or probable cause statement for the purpose of determining the truth of what
they assert simply because they had been filed with a court and were part of a
court record. See RWB, 224 N.J. Super. at 711 ("[A] court may not take judicial
notice of the contents of a certification for the purpose of determining the truth
of what it asserts simply because the certification has been filed with a court and
thus is part of a court record."). The documents defendant sought to introduce
were in an unrelated criminal case and defendant failed to prove any relevance
to the present case.
Moreover, judicial notice cannot be used to circumvent hearsay rules and
deprive a party the right of cross-examination on a contested material issue of
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26
fact. Silva, 394 N.J. Super. at 275. Nor can it be used to take notice of the
ultimate legal issue in dispute. Ibid.
While the fact that Mason was arrested and convicted of certain crimes is
not in dispute, the identity of the shooter in defendant's case is. In seeking to
use judicial notice, defendant attempted to create reasonable doubt through the
admission of hearsay evidence impervious to challenge by cross-examination.
Mason was not on trial and was not expected to be called as a witness in
defendant's trial and the State would have no opportunity to test that evidence.
Nevertheless, the court did permit defendant to present certain evidence
regarding Mason's June 11, 2018 arrest, the resulting charges and the location
of the incident.
Defendant also sought to present to the jury that the heroin Mason sold
was stamped with a different brand name than the heroin found in Rojas's car
when he was shot and killed. He argued that because Mason and Rojas sold
different types of heroin, there must have been a rivalry between the two which
provided Mason a motive to murder Rojas. But defendant did not provide any
evidence to show that Rojas was a drug dealer, that there was a rivalry between
Mason and Rojas, or that Mason had a motive to kill Rojas. Although we
recognize Mason's fingerprint was on the Chevy and defendant claimed Mason
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27
was in Camden on the morning of July 30, 2018, there was no credible evidence
to support the alleged rivalry that would have motivated Mason to shoot Rojas.
As the trial court stated several times, defendant's arguments are pure
speculation and prohibited under the case law which provides that "[t]he
connection between the third party and the crime cannot be left to conjecture."
Fortin II, 178 N.J. at 591. The trial court correctly determined that it was
improper for defendant to attempt to introduce Mason's arrest and leave it to the
jury to connect Mason to Rojas's murder through mere conjecture.
XI.
Defendant next contends the State argued an incorrect theory of
accomplice liability and the trial court's instruction did not correct the legal
misconception. He asserts "[t]he combination of the inadequate instruction and
incorrect argument was clearly capable of causing an unjust result and mandates
reversal."
During his summation, the prosecutor said:
[T]he [j]udge is going to explain to you
something that's called accomplice liability. Now, I
want to talk to you about this a little bit. The
accomplice liability charge is interesting, because it
says that if another person committed the crime of
murder, that the defendant aided, agreed, or attempted
to aid another person, in the planning or commission of
the murder, the defendant's purpose was to promote or
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28
facilitate the commission of a murder, and the
defendant possessed the criminal state of mind required
to be proved purpose of knowledge against the person
who committed the murder.
And what does all that mean? What that means
is that even if you didn't believe that this [d]efendant
was the one who pulled the trigger, he's still guilty,
because they acted together. That he acted with . . .
Tokley, and that they committed the murder, and that
he aided him.
What does it mean to aid somebody? To help
them. It means calling a friend to help you hide the
murder weapon, so that you won't get caught.
Again, [that is] certainly not the State's
contention here. It is the State's contention that this
[d]efendant pulled the trigger. But even if you didn't
believe that, he's still guilty.
[(Emphasis added).]
According to defendant, "in summation, the State suggested for the first
time that [defendant] could have been an accomplice and presented to the jury
an incorrect version of accomplice liability: that a person who helps conceal
evidence of a murder after the fact is an accomplice in the murder itself ."
Defendant states: "In summation, the State argued that [defendant] would be
guilty of murder as an accomplice if Tokley was the shooter and [defendant] hid
the gun later."
A-3391-21
29
There was no objection to the statement. When opposing counsel fails to
object to the complained about comments during summation, those remarks are
viewed under the plain error standard. R. 1:7-2; R. 2:10-2. Under that standard,
an unchallenged error constitutes plain error if it was "of such a nature as to
have been clearly capable of producing an unjust result." R. 2:10-2. "Thus, the
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).
We disagree with defendant's appraisal of the prosecutor's comments. A
plain reading of the above passage reveals that the prosecutor stated that even if
defendant was not the shooter, he could still be found guilty as an accomplice if
he: aided, agreed to aide, or attempted to aid Tokley with the murder of Rojas;
and purposefully promoted or facilitated the commission of the murder of Rojas;
and possessed the requisite criminal state of mind. In other words, defendant
could be guilty as an accomplice if he: acted together with Tokley, and they
committed the murder, and defendant aided Tokley (the shooter in that scenario)
in murdering Rojas.
The prosecutor made it clear that it was the State's position that defendant
was the shooter, but even if the jury did not believe that defendant was the
A-3391-21
30
shooter, he could still be guilty if the jury believed that defendant knowingly
acted together with Tokley to murder Rojas and purposefully aided Tokley in
murdering Rojas.
Moreover, the court instructed the jury that the prosecutor was an advocate
and that his comments and summation were not evidence. The court also told
the jury that it was the court's responsibility, not the prosecutor's, to instruct the
jury on the law. It provided an accurate and comprehensive instruction
regarding the jury's consideration of defendant's accomplice liability if it
deemed Tokley to have been the principal. The jury is presumed to have
understood and followed those instructions. State v. Feaster, 156 N.J. 1, 65
(1998).
XII.
Next, defendant contends the jury was not given two necessary
instructions—regarding identification and an alibi. Defendant only requested
the alibi instruction.
"An essential ingredient of a fair trial is that a jury receive adequate and
understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997).
"Correct jury instructions are 'at the heart of the proper execution of the jury
function in a criminal trial.'" Ibid. (quoting State v. Alexander, 136 N.J. 563,
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31
571 (1994)). The trial judge must explain the law as it relates to the facts and
issues of the case. State v. Baum, 224 N.J. 147, 159 (2016). Erroneous jury
instructions on "material" aspects are assumed to "possess the capacity to
unfairly prejudice the defendant." Ibid. (quoting State v. Bunch, 180 N.J. 534,
541-42 (2004)). Incorrect instructions are "poor candidates for rehabilitation
under a harmless-error analysis," State v. Rhett, 127 N.J. 3, 7 (1992), and are
"excusable only if they are harmless beyond a reasonable doubt." State v. Vick,
117 N.J. 288, 292 (1989). "As an indication of the paramount importance of
accurate jury instructions, we have held that erroneous instructions on material
issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359
(2002).
A reviewing court must evaluate the jury charge in its entirety to
determine its overall effect. State v. Savage, 172 N.J. 374, 387 (2002). We do
so "to ascertain whether it is either ambiguous and misleading or fairly sets forth
the controlling legal principles relevant to the facts of the case." State v.
LaBrutto, 114 N.J. 187, 204 (1989).
Defendant asserts the trial court erred by failing to provide the necessary
identification jury instruction because he disputes that he was the person on the
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32
bicycle. Therefore, defendant contends the court should have instructed the jury
with the model charge on identification when no identification has been made.
Because defendant did not object to the jury instruction, we review his
claim for plain error. R. 2:10-2.
The model jury charge on identification instructs the jury that it must
determine "not only whether the State has proven each and every element of the
offense charged beyond a reasonable doubt, but also whether the State has
proven beyond a reasonable doubt that this defendant is the person who
committed it." Model Jury Charges (Criminal), "Identification: No In- or Out-
of-Court Identification" (Oct. 26, 2015).
"When identification is a 'key issue,' the trial court must instruct the jury
on identification, even if a defendant does not make that request." State v. Cotto,
182 N.J. 316, 325 (2005) (citing State v. Green, 86 N.J. 281, 291 (1981)).
"Identification becomes a key issue when '[i]t [is] the major . . . thrust of the
defense,' . . . particularly in cases where the State relies on a single victim-
eyewitness." Ibid. (quoting Green, 86 N.J. at 291). In State v. Davis, 363 N.J.
Super. 556, 561 (App. Div. 2003), this court explained:
[A]s a matter of general procedure a model
identification charge should be given in every case in
which identification is a legitimate issue. . . . The
failure to give such a charge or to give an adequate
A-3391-21
33
charge is most often reversible error. . . . While in some
instances it may not be necessary to present an extended
charge on identification, nevertheless, the complete
absence of any reference to identification as an issue or
as an essential element of the State's case is improper.
That is not the situation in the present case. In Cotto, our Supreme Court
held and explained:
[D]espite the trial court's failure to provide a detailed
identification instruction, the trial court did specifically
explain to the jury that the State bears the burden of
proving beyond a reasonable doubt "each and every
element of the offense, including that of the defendant's
presence at the scene of the crime and his participation
in the crime." Unlike the trial court in Davis, here, the
trial court instructed the jury on the State's burden of
proving beyond a reasonable doubt that [the] defendant
was the individual that committed the crime. The
instruction in this matter is substantially the same as the
model instruction that the Appellate Division, in Davis,
would have required to uphold the conviction in a case
of a weak misidentification argument. The Davis
instruction stated, in pertinent part: "You must
determine . . . not only whether the State has proved
each and every element of the offense charged beyond
a reasonable doubt, but also whether the State has
proved beyond a reasonable doubt that this defendant is
the person who committed it." Davis, 363 N.J. Super.
at 562 (quoting Model Jury Charges (Criminal),
"Identification" (1999)). The instruction given in this
case, in Davis, and in the model charge all emphasize
the same common denominator: the State bears the
burden of proving beyond a reasonable doubt that the
defendant is the wrongdoer. Although the court here
did not use the word "identification" in charging the
jury, and could have given a more detailed instruction,
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34
it nonetheless clearly explained the State's burden to the
jury. Therefore, we hold that the trial court did not
commit error, much less plain error, when it instructed
the jury on identification.
[Cotto, 182 N.J. at 326-27 (citations reformatted).]
Here, as in Cotto and Davis, the court provided the jury with the general
jury charge that the State bore the burden of proving beyond a reasonable doubt
that defendant was the wrongdoer; in other words, that he murdered Rojas. The
court instructed the jury:
Defendant has pled not guilty to the charges. Now, a
defendant on trial is presumed to be innocent. And
unless each and every essential element of an offense
charge is proved beyond a reasonable doubt, the
[d]efendant must be found not guilty of that charge.
The burden of proving each element of a charge
beyond a reasonable doubt rests upon the State and that
burden never shifts to the [d]efendant. The [d]efendant
in a criminal case has no obligation or duty to prove his
innocence or offer any proof relating to his innocence.
The [p]rosecution must prove its [c]ase by more
than a mere preponderance of the evidence, yet not
necessarily to an absolute certainty. The State has the
burden of proving the [d]efendant guilty beyond a
reasonable doubt.
The court also instructed the jury regarding the State's burden of proof on
the specific charges against him. Regarding murder, the court stated:
A-3391-21
35
I will now move on to the third part of my
instructions on the portions of the Criminal Code that
you must apply to the facts you find, to determine
whether the State has proven beyond a reasonable doubt
that . . . [d]efendant violated a specific[] [c]riminal
[s]tatute. The [s]tatute read together with the
indictment identifies the elements which the State must
prove[] beyond a reasonable doubt to establish the guilt
of . . . [d]efendant on each of the counts in the
indictment.
I will start with count one. In count one . . .
[d]efendant is charged with the murder of . . . Rojas.
Count one of the indictment reads on or about the 30th
day of July 2018 in the City of Camden, County of
Camden within the judgment of this [c]ourt . . . Venable
did purposely and knowingly cause the death or serious
bodily injury resulting in the death of . . . Rojas.
A person is guilty of murder if number one, he
caused the victim's death or serious bodily injury that
resulted in death. And number two. . . [d]efendant did
so purposely or knowingly. In order for you to find
. . . [d]efendant guilty of murder, the State is required
to prove each of the following elements beyond a
reasonable doubt.
Number one, that . . . [d]efendant caused . . .
Rojas's death or serious bodily injury, that then resulted
in . . . Rojas's death. And number two, that . . .
[d]efendant did so purposely or knowingly.
Similar instructions were given regarding each charge.
Although the trial court did not provide the specific model jury charge on
identification, we are satisfied that the charges given to the jury clearly
A-3391-21
36
explained the State's burden. There was no plain error in not instructing the jury
with the identification charge.
XIII.
Defendant also contends the trial court erred by failing to provide the alibi
jury instruction. He asserts because he says he was elsewhere at the time of the
murder—specifically driving around and being in various locations—he was
entitled to the model charge on alibi.
After the State and the defense had rested, defense counsel requested the
alibi instruction for the first time, during the jury charge conference. In denying
defendant's request, the court determined that defendant had not provided the
required notice pursuant to Rule 3:12-2. Defense counsel acknowledged the
requisite notice was not provided to the State. Defense counsel also conceded
there were no alibi witnesses. Instead, counsel argued that defendant's July 30,
2018, statement to police that he was at his child's mother's house at the time of
the shooting was an alibi.
After reviewing both the transcript and the recording of defendant's
statement to police, the trial court determined defendant's statement was not an
alibi, explaining:
I find that [d]efense [c]ounsel's argument that . . .
[d]efendant was not in the vehicle at the time of the
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37
shooting and that he was at [his child's mother's house]
is more akin to a general denial of having knowledge of
the crime. The [c]ourt notes that the [d]efendant was
not able to provide a time period that he was at [his
child's mother's house]. Defendant simply stated that
at some time during the morning of July 30[], 2018, he
was at [his child's mother's house] on two occasions.
On one occasion . . . [d]efendant believed it was 7:30
[a.m.] The shooting in this matter occurred at
approximately 7:42 [a.m.] This general denial of an
offense is not an alibi. If this [c]ourt was to accept
[d]efense [c]ounsel's reasoning, then every defendant
who denies knowledge of an offense would be entitled
to an alibi instruction.
Defendant provided neither notice under Rule 3:12-2, nor actual alibi
evidence other than his denial that he committed the charged offense. We are
satisfied the court did not err in its decision not to charge the jury with the alibi
instruction. Moreover, "the failure to provide a separate alibi charge does not
constitute reversible error." State v. Echols, 199 N.J. 344, 363 (2009). See, e.g.,
State v. Edge, 57 N.J. 580, 590-91 (1971) (holding failure to give requested alibi
charge was harmless).
XIV.
Defendant also claims that because there was no evidence of his alleged
agreement with Tokley to murder Rojas that his conviction for conspiracy to
commit murder cannot stand. Defendant contends:
A-3391-21
38
Even assuming that [he] was the shooter and
Tokley was the driver in the car that picked him up, that
is evidence only of an agreement to pick [him] up. That
is not evidence that Tokley agreed [to] help [him] plan
or commit the murder itself, which is what the
conspiracy statute requires. N.J.S.A. 2C:5-2a.
....
. . . Even if Tokley knew he was picking up [defendant]
because he had just committed murder—of which there
is no evidence in the record—that is not evidence that
Tokley had agreed to aid [him] in committing murder,
as opposed to merely helping him evade prosecution for
murder.
Alternatively, he asserts that "the failure to properly instruct the jury that
an agreement to aid someone after a murder does not constitute a conspiracy to
commit murder requires reversal of [his] conspiracy conviction."
As these arguments were not raised before the trial court, we review them
for plain error under Rule 2:10-2. "Thus, the 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." R.K., 220 N.J. at 456.
We begin with defendant's argument that there was no evidence of any
agreement between him and Tokley to murder Rojas. Under N.J.S.A. 2C:5-2(a):
A person is guilty of conspiracy with another
person or persons to commit a crime if with the purpose
of promoting or facilitating its commission he:
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39
(1) Agrees with such other person or persons that
they or one or more of them will engage in conduct
which constitutes such crime or an attempt or
solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in
the planning or commission of such crime or of an
attempt or solicitation to commit such crime.
The "major basis of conspiratorial liability [is] the unequivocal evidence
of a firm purpose to commit a crime that is provided by the agreement." State
v. Samuels, 189 N.J. 236, 245 (2007) (alteration in original) (internal quotation
marks and citations omitted). "Because the conduct and words of co-
conspirators is generally shrouded in 'silence, furtiveness and secrecy,' the
conspiracy may be proven circumstantially." Id. at 246 (quoting State v. Phelps,
96 N.J. 500, 509 (1984)).
"[T]here are no legal rules as to what inferences may be drawn. The
question is one of logic and common sense." State v. Powell, 84 N.J. 305, 314
(1980). "When 'each of the interconnected inferences [necessary to support a
finding of guilt beyond a reasonable doubt] is reasonable on the evidence as a
whole,' judgment of acquittal is not warranted." Samuels, 189 N.J. at 246
(alterations in original) (quoting United States v. Brodie, 403 F.3d 123, 158 (3d
Cir. 2005)).
A-3391-21
40
Generally, the veracity of each inference does not need to be established
beyond a reasonable doubt; rather, "a jury may draw an inference from a fact
whenever it is more probable than not that the inference is true." State v. Brown,
80 N.J. 587, 592 (1979). "Nevertheless, the State's right to the benefit of
reasonable inferences should not be used to shift or lighten the burden of proof[]
or become a bootstrap to reduce the State's burden of establishing the essential
elements of the offense charged beyond a reasonable doubt." Ibid.
We are satisfied there was sufficient evidence in the record to support the
jury's finding defendant guilty of conspiring with Tokley to murder Rojas. The
State presented surveillance video showing defendant and Tokley in his Chevy
at approximately 6:23 a.m. on July 30, 2018; the shooter riding a bicycle and
firing a gun into Rojas's vehicle at approximately 7:42 a.m.; Tokley's Chevy
driving up to the bicyclist; the shooter getting off the bicycle and into Tokley's
Chevy at approximately 7:43 a.m.; and Tokley's Chevy arriving at Williams's
residence at approximately 7:48 a.m.
Additionally, through surveillance video, Tokley's Chevy was tracked
from the area of the shooting, driving to Williams's residence and arriving at
approximately 7:48 a.m. Shortly thereafter, defendant and Tokley exited the
Chevy, defendant entered Williams's house carrying a box while Tokley waited
A-3391-21
41
outside, and then defendant and Tokley drove away minutes later. The
surveillance video did not show anyone getting in or out of Tokley's Chevy on
the ride to Williams's residence after picking up the bicyclist and before arriving
at Williams's residence. Nor did the surveillance video show anyone other than
defendant or Tokley entering or exiting Williams's house.
Furthermore, Franchi testified that he saw the shooter ride his bicycle
away from the shooting and get into Tokley's Chevy at approximately 7:43 a.m.
Williams testified that defendant called her at approximately 7:49 a.m. and 7:51
a.m., shortly before arriving at her house carrying a box.
Even though there was no direct evidence that defendant and Tokley
agreed to commit murder, there was sufficient circumstantial evidence to submit
the conspiracy charge to the jury. It is unlikely that Tokley drove defendant to
Camden at approximately 6:42 a.m., dropped him off, and then unwittingly
served as a getaway driver when he picked up defendant one block away and
approximately one minute after the shooting. As the Court stated in Samuels,
although "the jurors could have reached a different conclusion . . . the fact that
the evidence does not exclude every conceivable hypothesis except guilt is of
no consequence to [its] analysis." 189 N.J. at 249.
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42
We also discern no merit to defendant's contention that the trial court erred
in the conspiracy charge given to the jury. For the first time, defendant asserts
the court should have instructed the jury sua sponte "that an agreement to help
[defendant] escape from the scene of the shooting does not constitute conspiracy
to murder." Defendant relies on Grunewald v. United States, 353 U.S. 391
(1957), for support.
In Grunewald, there were acts of concealment done in furtherance of the
main criminal conspiracy and other acts of concealment for purposes of covering
up the crime, and the Government attempted to extend the statute of limitations
by including the post-crime attempts to conceal the conspiracy as part of the
main conspiracy. Id. at 405.
We disagree with defendant's contention that fleeing the scene of the
crime, as he did here, equates to post-conspiracy concealment commensurate
with that discussed in Grunewald. It does not. Moreover, the Grunewald Court
did not require trial courts to instruct juries that attempts to cover up already
accomplished crimes are distinct from the conspiracy itself.
The trial court gave the jury the appropriate conspiracy charge as
applicable to the presented facts. It was not wrong for the jury to consider
defendant and Tokley's behavior both before and after the murder to infer a
A-3391-21
43
conspiracy. See Samuels, 189 N.J. at 248 (finding "[t]he evidence in its entirety
and reasonable inferences therefrom were adequate to warrant submission of the
charge" to the jury). The totality of the evidence does not support defendant's
suggestion that Tokley "merely help[ed] him evade prosecution for murder ."
The trial court did not commit plain error for failing to instruct the jury sua
sponte "that an agreement to help [defendant] escape from the scene of the
shooting does not constitute conspiracy to murder."
XV.
We turn to a consideration of defendant's sentence. Defendant asserts the
sentence was excessive because the court improperly considered arrests that did
not lead to convictions and failed to account for his advanced age upon his
release from prison when considering the appropriate aggregate sentence.
The court sentenced defendant to life imprisonment, seventy-five years,
with an eighty-five-percent period of parole ineligibility under NERA on count
one (first-degree murder); it merged counts two (conspiracy to commit murder)
and five (second-degree possession of a weapon for an unlawful purpose) with
count one. The court sentenced defendant to a concurrent ten-year term, subject
to NERA, on count four (secondary aggravated assault); concurrent ten -year
terms with five years of parole ineligibility on counts six (second-degree
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44
unlawful possession of a weapon) and seven (second-degree certain persons not
to have weapons); and a concurrent twenty-year term with ten years of parole
ineligibility on count eight (first-degree unlawful possession of a weapon).
In sentencing defendant, the court found three aggravating factors: three
(N.J.S.A. 2C:44-1(a)(3) ("The risk that the defendant will commit another
offense")); six (N.J.S.A. 2C:44-1(a)(6) ("The extent of the defendant's prior
criminal record and the seriousness of the offenses of which the defendant has
been convicted")); and nine (N.J.S.A. 2C:44-1(a)(9) ("The need for deterring the
defendant and others from violating the law")). The court did not find any
mitigating factors and, as a result, determined that the aggravating factors
convincingly and substantially outweighed the non-existing mitigating factors.
In sentencing a defendant, the "trial court should identify the relevant
aggravating and mitigating factors, determine which factors are supported by a
preponderance of the evidence, balance the relevant factors, and explain how it
arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215
(1989). Trial courts "are given wide discretion so long as the sentence is within
the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005).
Our standard of review is "one of great deference and '[j]udges who
exercise discretion and comply with the principles of sentencing remain free
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from the fear of second guessing.'" Id. at 501 (alteration in the original) (quoting
State v. Megargel, 143 N.J. 484, 494 (1996)). "The reviewing court must not
substitute its judgment for that of the sentencing court." State v. Fuentes, 217
N.J. 57, 70 (2014).
"[J]udges may consider arrests and the actual circumstances of the offense
when assessing the threat that a defendant poses to society during imposition of
a sentence." State v. Jones, 179 N.J. 377, 407 (2004). See also State v. Green,
62 N.J. 547, 571 (1973), overruled on other grounds by State v. K.S., 220 N.J.
190 (2015) (holding while a charge that does not result in a conviction may be
considered in sentencing, "[t]he important limitation of course is that the [court]
shall not infer guilt as to any underlying charge with respect to which the
defendant does not admit his guilt"). Indeed, "[s]entencing judges must fully
assess the totality of circumstances surrounding a defendant's actual criminal
offense." Jones, 179 N.J. at 407. "Standing alone, however, a charge may not
be considered the equivalent of a finding of guilt," and it "may be considered
only insofar as it is relevant to the character of the sentence." State v. Tanksley,
245 N.J. Super. 390, 396 (App. Div. 1991) (citing Green, 62 N.J. at 571). When
a sentencing judge "weighs a defendant's record heavily because it is 'lengthy,'
and the record is lengthy because of numerous charges or arrests that did not
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46
result in convictions, the judge should state the reasons why those charges and
arrests are relevant to the character of the sentence being imposed." Id. at 397.
Defendant asserts the trial court improperly considered "'a total of 20
arrests' as supporting the[] aggravating factors, even though [he] had only seven
[S]uperior [C]ourt convictions, with the last conviction for a violent offense
having been in 1991." We are unpersuaded by the argument.
The court correctly noted it could consider prior arrests during sentencing
as part of the totality of defendant's criminal history and referenced all his prior
arrests as part of his "prior contact with the court system." Specifically, the
court stated:
In reference to this matter, I have had the opportunity
to review the Criminal Division presentence report and
find that . . . [d]efendant has had prior contact with the
court system. As an adult, he has had a total of 20
arrests, which resulted in six municipal court
convictions, and seven [S]uperior [C]ourt convictions.
I note that . . . [d]efendant has also had matters in the
family court, which resulted in a final restraining order,
contempt, and fines imposed against him.
[(emphasis added).]
Although the court referenced all of defendant's arrests, it thereafter clearly
focused on defendant's numerous convictions, as well as the "seriousness of the
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47
offenses for which he has been convicted." The seriousness of the offense, first-
degree murder, justified the imposed life sentence.
The court further noted that based on defendant's extensive criminal
history, previous attempts to deter defendant's criminal conduct had failed
because he continued to have contact with the justice system and was convicted
for new offenses, even after lengthy terms of incarceration, parole, and
probation. Defendant's criminal history, coupled with this most serious
conviction of first-degree murder, demonstrates an unwillingness or inability to
live a law-abiding life and refrain from violating the law.
Defendant also claims that the court failed to consider the impact of his
advanced age upon release from prison "because older people are much less
likely to commit crimes." This argument is meritless.
First, the court acknowledged defendant's age at the time of the crime and
sentencing, and properly considered defense attorney's argument about
defendant's advanced age.
Second, his argument is belied by his own actions. Defendant continued
to have contact with the justice system and was convicted for new offenses as
he aged. Indeed, his most serious conviction occurred when he was forty -six
years old. Defendant did not learn from his prior convictions, nor did he
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48
demonstrate that he was less likely to commit crimes as he got older. In fact,
defendant continued to commit increasingly violent and dangerous crimes as he
got older, even after he had been subject to numerous incarcerations, parole, and
probationary terms intended to deter future criminal activity.
Third, and most importantly, defendant's argument does not properly
consider the seriousness of offenses for which he was convicted, in particular,
first-degree murder. Rather, defendant focuses on how old he would be at the
time of his release. Notwithstanding his age, his lengthy criminal history
coupled with the seriousness of his conviction for first-degree murder justified
his life sentence.
Affirmed.
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Case Information
- Court
- N.J. Super. Ct. App. Div.
- Decision Date
- March 13, 2025
- Status
- Precedential