STATE OF NEW JERSEY VS. LASHAWN FITCH (09-07-1467, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1014-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LASHAWN FITCH, a/k/a

LASHAWN D. FITCH,

Defendant-Appellant.

__________________________

Submitted January 11, 2017 – Decided September 22, 2017

Before Judges Simonelli and Carroll.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

09-07-1467.

Joseph E. Krakora, Public Defender, attorney

for appellant (Michele A. Adubato, Designated

Counsel, on the briefs).

Christopher J. Gramiccioni, Monmouth County

Prosecutor, attorney for respondent (Mary R.

Juliano, Assistant Prosecutor, of counsel and

on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Lashawn Fitch was convicted

of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); first-

degree robbery, N.J.S.A. 2C:15-1 (count three); and first-degree

felony murder, N.J.S.A. 2C:11-3(a)(3) (count four). At

sentencing, the trial judge merged counts one and two into count

three and count three into count four, and sentenced defendant on

count four to a forty-year term of imprisonment with an eighty-

five percent period of parole ineligibility pursuant to the No

Early Release Act, N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following contentions:

POINT I

ADMISSION OF THE TWO TEXT MESSAGES

THAT REFERENCED [DEFENDANT]

PURSUANT TO THE CO-CONSPIRATOR

EXCEPTION TO THE HEARSAY RULE WAS

ERRONEOUS.

POINT II

THE ADMISSION OF OTHER CRIME

EVIDENCE WAS GROSSLY PREJUDICIAL

AND DENIED DEFENDANT A FAIR TRIAL.

POINT III

THE REPEATED PLAYING OF THE 2009

VIDEOTAPED STATEMENT OF IAN EVERETT

CONTAINING INADMISSIBLE HEARSAY WAS

2 A-1014-14T3

UNDULY PREJUDICIAL AND DEPRIVED

DEFENDANT OF A FAIR TRIAL.

POINT IV

THE TESTIMONY OF DETECTIVE BALDWIN

OPINING ON THE CREDIBILITY OF A

WITNESS AND GUILT OF DEFENDANT WAS

IMPROPER AND DEPRIVED DEFENDANT OF

A FAIR TRIAL. (Not raised below).

POINT V

THE FAILURE OF THE COURT TO GIVE THE

APPROPRIATE CHARGE TO THE JURY ON

ACCOMPLICE LIABILITY WAS ERROR

MANDATING REVERSAL.

POINT VI

DENIAL OF THE DEFENDANT'S MOTION FOR

[A] NEW TRIAL WAS ERROR.

POINT VII

THE SENTENCE IMPOSED UPON THE

DEFENDANT OF FORTY (40) YEARS WITH

[EIGHTY-FIVE PERCENT] PAROLE

INELIGIBILITY WAS EXCESSIVE AND

SHOULD BE MODIFIED AND REDUCED.

POINT VIII

THE AGGREGATE ERRORS DENIED

DEFENDANT A FAIR TRIAL. (Not raised

below).

Defendant raises the following contentions in a pro se

supplemental brief:

3 A-1014-14T3

POINT I

PROSECUTOR'S REMARKS DURING OPENING

STATEMENTS DENIED DEFENDANT A FAIR TRIAL. (Not

raised below).

POINT II

TRIAL ERRORS

(Partially raised)

I. IT WAS PREJUDICIAL FOR THE COURT TO

PERMIT VIDEO EXCERPTS OF IAN [EVERETT'S]

MARCH 26, 2009 STATEMENT WITHOUT HOLDING

A [N.J.R.E.] 104(a) HEARING AND FOR NOT

INSTRUCTING THE JURY.

II. IT WAS PREJUDICIAL FOR THE TRIAL COURT

IN PERMITTING VIDEO PLAY-BACK OF IAN

[EVERETT'S] MARCH 26, 2009 OUT-OF-COURT

STATEMENTS WITHOUT PUTTING THE REPLAY IN

PROPER CONTEXT FOR THE JURY.

POINT III

JUROR TAINT (not raised below).

I. THE COURT ERRED IN NOT EXCLUDING JUROR

#6 . . . AFTER SHE RECEIVED A PHONE CALL

FROM A CORRECTIONAL FACILITY.

II. BECAUSE JUROR #5 . . . WITHHELD

PREJUDICIAL INFORMATION ON VOIR DIRE[,]

DEFENDANT WAS DENIED PEREMPTORY

CHALLENGE WHICH DEPRIVED DEFENDANT OF A

FAIR TRIAL.

POINT IV

JURY CHARGE ERRORS DEPRIVED [DEFENDANT OF] A

FAIR TRIAL. (Not raised below).

POINT V

THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR

TRIAL. (Not raised below).

4 A-1014-14T3

We have considered the contentions in Points IV and VIII of

defendant's initial brief and Points I, II, III, and V of his pro

se supplemental brief in light of the record and applicable legal

principles and conclude they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Accordingly, we focus on the remaining contentions.

I.

The charges against defendant stemmed from the shooting death

of Nathaniel Wiggins, a marijuana dealer. Ian Everett was the

State's main witness. According to Everett, on the afternoon of

March 11, 2008, he, defendant, Kenny Michael Bacon-Vaughters

(Kenny-Mike), and Aron Pines (Aron) were outside Everett's home

on 9th Avenue in Neptune "chillin' before [Kenny-Mike] went to

work." Everett saw a car pass by with a blue pit bull inside.

The occupant waved at Aron, and Aron waved back. Aron said to

Everett, "that's the weed man."

At approximately 4:15 p.m., Everett and Aron were outside

Everett's home when a fight erupted in a park across from the

corner of 9th and Ridge Avenue. Everyone fled after the Neptune

Township police arrived. Someone ran into the backyard of

Everett's home. Everett went to the backyard, but saw no one

there. He looked around and saw "a big" gun on the ground, which

he described as a revolver or "shell catcher" or "probably like a

5 A-1014-14T3

.45 or something crazy like that." Defendant was also in the

backyard at the time. Everett told him to remove the gun from the

backyard, and defendant complied.

At approximately 8:30 p.m., defendant, Everett, and Aron

returned to Everett's home and were playing video games and

"smoking weed." Defendant had the gun with him and shot it once

while on the back roof of Everett's home. Everett told defendant

and Aron to get the gun out of his home. Everett heard Aron say

that he wanted to take the gun to the weed man's home to rob him.

Everett also heard defendant and Aron talk "about going over there

to rob, to go through [with] it." As defendant and Aron left,

they asked Everett if he was coming, but he declined.

Everett testified that Aron left his home to go pick up Kenny-

Mike and defendant left approximately twenty to thirty minutes

later after defendant's mother told him to babysit his younger

siblings. He also testified that the next morning, defendant came

to his home and told him that "he heard something about what

[Kenny-Mike] and them did" the night before, but did not say he

was involved.

Because this testimony contradicted Everett's March 29, 2009

videotaped statement to Detective Daniel Baldwin of the Monmouth

6 A-1014-14T3

County Prosecutor's Office, the State requested a Gross1 hearing

to determine the admissibility of the videotaped statement. In

the videotaped statement, Everett said defendant and Aron left his

home together, and that defendant told him the next day that Kenny-

Mike knocked on the weed man's door, the weed man wrestled with

Kenny-Mike, "something had happened[,]" and they got rid of the

gun afterwards. On cross- and re-direct examination during the

Gross hearing, Everett recanted nearly his entire videotaped

statement. The judge permitted the State to play the videotaped

statement to the jury during Baldwin's testimony, with

inadmissible statements redacted. Defendant agreed to the

redactions.

Michael Smith testified that he was a passenger in Wiggins'

car when they drove by a "group of [high school] kids" on 9th

Avenue and Wiggins waved to one of them. At approximately 9:00

p.m., he and Wiggins were shopping at the Walmart in Neptune when

Wiggins received a phone call. As Wiggins drove Smith home, he

told Smith the call was from "the kid" he had waved earlier to on

9th Avenue. Wiggins was skeptical and seemed worried because "the

kid" wanted to purchase a different amount of marijuana than usual

and said he had no car, when Wiggins knew he had a Honda Civic.

1

State v. Gross, 121 N.J. 1 (1990).

7 A-1014-14T3

Smith said to Wiggins, "if you feel something's wrong, then . . .

don't go through with it."

Wiggins' girlfriend, Faith Montanino, testified that she was

in the couple's apartment the evening of March 11, 2008, and saw

Wiggins weighing marijuana in the bedroom. She heard a knock on

the kitchen door and saw Wiggins peer out the bedroom window.

Wiggins said "Oh, shit" and quickly walked to the kitchen door.

She then heard "a loud noise, like a commotion almost" and heard

Wiggins call her name. She walked quickly to the kitchen and saw

the kitchen door ajar and Wiggins on the floor. Wiggins said,

"Faith, I've been shot. Hide the weed. Call the cops." She ran

around the apartment and placed all of the drug paraphernalia in

a bag. She hid the bag in the trunk of her car and went back to

the apartment and called 9-1-1. As she was speaking to the 9-1-1

operator, Wiggins said that Kenny-Mike shot him.

Police Officers Brett Paulus and Matthew Bailey from the

Eatontown Police Department (EPD) arrived on scene less than one

minute after dispatch. Paulus testified that as he approached the

apartment building, Montanino rushed out crying and yelling that

her boyfriend had been shot. Paulus directed Montanino towards

Bailey and proceeded to the rear of the building where a stairway

led to the couple's second floor apartment. As Paulus scanned the

dark, wooded area behind the building for potential suspects, he

8 A-1014-14T3

heard someone yelling for help and saw a person lying with his

head outside the doorway of a second floor apartment.

Paulus proceeded up the stairway and stood next to Wiggins.

Wiggins grabbed Paulus' pant leg and started to pull on it. When

Paulus knelt down beside him, Wiggins said, "I'm dying, oh God,

I'm dying. Kenny-Mike shot me." Paulus asked where Kenny-Mike

lived, and Wiggins replied, "Neptune." Paulus questioned Wiggins

about Kenny-Mike's appearance and whether he had seen a gun, but

Wiggins simply repeated that Kenny-Mike shot him. Wiggins was

transported to the hospital where he later died of his gunshot

wounds.

The police secured the scene and began searching the exterior

of the building for evidence. In the parking lot of a neighboring

business, the police found a black knit glove, black knit face

mask, and saliva on the ground.

Montanino eventually went to the EPD, where the police showed

her a photo of Kenny-Mike. She immediately recognized him as one

of Wiggins' frequent marijuana customers and told the police where

he lived in Neptune.

At approximately 9:30 the next morning, Lieutenant John

Cleary of the EPD drove through the housing development adjacent

to Wiggins' apartment building. On Grant Avenue, which was

approximately one-half mile from the crime scene, Cleary found a

9 A-1014-14T3

black knit hat with two holes cut out for eyes and purple gloves.

As Cleary was collecting the items, Susan Schmardel, who lived

nearby, exited her home to walk her dog. Cleary asked Schmardel

whether she had noticed the hat and gloves during any of her

previous walks, and she said she had not. Schmardel said she had

walked her dog along the same route at approximately 9:00 the

night before, and was positive the items were not there at that

time.

The evidence collected from both the parking lot adjacent to

Wiggins' apartment complex and Grant Avenue, along with DNA samples

from defendant, Aron, Kenny-Mike, and Aron's brother, Tahj Pines,

who later became a suspect, were submitted for DNA analysis and

comparison. Tahj's DNA was found on the saliva and black mask

collected from the parking lot, but all four suspects were excluded

as contributors of the DNA on the black glove found in the parking

lot. Defendant could not be excluded as a contributor of the DNA

on the purple gloves found on Grant Avenue, but his DNA was found

on the black cloth hat discovered there.

The police obtained Wiggins', Aron's, and Kenny-Mike's

cellphone records. Aron's cellphone records revealed he

communicated with Tahj on the night of the murder. The cellphone

records also revealed that in the hours preceding the murder, Aron

called Wiggins at 9:09 p.m. via a cell tower in Neptune. There

10 A-1014-14T3

were also five calls between Aron and Tahj, and two calls between

Aron and Kenny-Mike, all via cell towers in Neptune or Asbury

Park. Aron called Wiggins at 10:03 p.m., and Wiggins returned the

call one minute later; both calls were via an Eatontown cell tower

less than one mile from Wiggins' apartment. Kenny-Mike received

a call at 10:04 p.m. via the same Eatontown cell tower. There was

no activity on any of the cellphones between 10:07 p.m. and 10:20

p.m.

Six minutes after Montanino called 9-1-1, Kenny-Mike received

a call and made two calls, all via a cell tower on Route 35 in

Ocean Township between Wiggins' apartment and the suspects' homes.

Between 10:32 p.m. and 10:46 p.m., there were two calls between

Aron and Kenny-Mike, and three calls between Aron and Tahj; all

via cell towers in Neptune or Asbury Park.

The morning after the murder, Aron called Kenny-Mike at 6:49

and 6:58. At 9:46 a.m., Kenny-Mike sent Aron the first of numerous

text messages relaying updates on the homicide investigation. Two

text messages referenced defendant. One stated "Ayo wats good wit

fitch like he said he told delete this ryt away." The other text

message stated "Fitch said they mite b cumin 4 u . . . they took

him in."

11 A-1014-14T3

II.

The State charged defendant as a co-conspirator and proffered

the two text messages as statements in furtherance of the

conspiracy pursuant to N.J.R.E. 803(b)(5). Defendant filed a

motion to suppress, arguing there was insufficient evidence of a

conspiracy. The judge denied the motion, finding Everett's

statements about defendant's involvement and the black cloth hat

containing defendant's DNA found on Grant Avenue were independent

proof establishing a conspiracy and defendant's participation in

it.

On appeal, defendant contends in Point I of his initial brief

that admission of the text messages violated the hearsay rule and

his right of confrontation because the conspiracy was over; the

text messages were not made in furtherance of or during the course

of the conspiracy; and there was no evidence of a cover-up or that

he was involved in the robbery. We disagree.

Our Supreme Court has established the standard of review

applicable a trial judge's ruling on a motion to suppress:

Appellate review of a motion judge's factual

findings in a suppression hearing is highly

deferential. We are obliged to uphold the

motion judge's factual findings so long as

sufficient credible evidence in the record

supports those findings. Those factual

findings are entitled to deference because the

motion judge, unlike an appellate court, has

the opportunity to hear and see the witnesses

12 A-1014-14T3

and to have the feel of the case, which a

reviewing court cannot enjoy.

[State v. Gonzalez, 227 N.J. 77, 101 (2016)

(citations omitted).]

In addition, we review a trial court's evidential ruling for abuse

of discretion. State v. Kuropchak, 221 N.J. 368, 385-86 (2015).

An abuse of discretion only arises on demonstration of "manifest

error and injustice[,]" State v. Torres, 183 N.J. 554, 572

(citation omitted), and occurs when the evidence diverts jurors

"from a reasonable and fair evaluation of the basic issue of guilt

or innocence." State v. Moore, 122 N.J. 420, 467 (1991) (citation

omitted). Applying the above standards, we discern no reason to

reverse the admission of the text messages.

"Hearsay" is "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted." N.J.R.E.

801(c). Hearsay is inadmissible unless it falls within one or

more of the exceptions enumerated in the evidence rules. State

v. Branch, 182 N.J. 338, 348 (2005). Hearsay "admitted contrary

to this State's evidentiary rules and decisional laws . . .

violate[s] the Federal and State Confrontation Clauses." Id. at

353. "Both the hearsay rule and the right of confrontation protect

a defendant from the incriminating statements of a faceless accuser

who remains in the shadows and avoids the light of court." Id.

13 A-1014-14T3

at 348. The exceptions to the hearsay rule "are justified

primarily because the circumstances under which the statements are

made provide strong indicia of reliability." State v. Savage, 172

N.J. 374, 402 (2002) (quoting State v. Phelps, 96 N.J. 500, 508

(1984)).

The co-conspirator exception to the hearsay rule, embodied

in N.J.R.E. 803(b)(5), permits a statement to be admitted against

a party if the statement was made while the party and declarant

were allegedly participating in a plan to commit a crime or civil

wrong and the statement was made in furtherance of that plan, even

if the plan was frustrated. See Savage, 172 N.J. at 404. The

rationale for the co-conspirator exception is the concept that

"[p]articipation in a conspiracy confers upon co-conspirators the

authority to act in one another's behalf to achieve the goals of

the unlawful scheme." State v. Harris, 298 N.J. Super. 478, 487

(App. Div.), certif. denied, 151 N.J. 74 (1997). "Since

conspirators are substantively liable for the acts of their co-

conspirators," it follows that "they are equally responsible for

statements by their confederates to further the unlawful plan."

Ibid. It is well-established that the co-conspirator exception

does not offend the Sixth Amendment's guarantee of a defendant's

right to confront the witnesses against him. State v. Boiardo,

111 N.J. Super. 219, 229 (App. Div.), certif. denied, 57 N.J. 130

14 A-1014-14T3

(1970), cert. denied, 401 U.S. 948, 91 S. Ct. 931, 28 L. Ed. 2d

231 (1971).

To qualify for admissibility under N.J.R.E. 803 (b)(5), the

State must show that: (1) the statement was made in furtherance

of the conspiracy; (2) the statement was made during the course

of the conspiracy; and (3) there is "evidence, independent of the

hearsay, of the existence of the conspiracy and defendant's

relationship to it." Savage, supra, 172 N.J. at 402 (quoting

State v. Phelps, 96 N.J. 500, 509-10 (1984)). The "nature of the

hearsay should engender a strong sense of inherent

trustworthiness." Phelps, supra, 96 N.J. at 511. The first two

factors "reflect notions that an agent's statements are

vicariously attributable to a principal." Id. at 510. The third

factor "reduces the fear that a defendant might be convicted or

held liable in damages solely on the basis of evidence that he has

had no opportunity to impeach or refute." Id. at 510-11.

A conspiracy continues until its objective is fulfilled.

State v. Cherry, 289 N.J. Super. 503, 523 (1995). If a statement

is made after the conspiratorial objective is completed, it is

generally not admissible under the co-conspirator exception.

State v. Sparano, 249 N.J. Super. 411, 420-21 (App. Div. 1991).

However, a conspiracy may continue beyond the actual commission

of the object of the conspiracy if it is shown that a conspirator

15 A-1014-14T3

enlisted false alibi witnesses, concealed weapons, or fled in

order to avoid apprehension. Cherry, supra, 289 N.J. Super. at

523-24. Moreover, statements relating to past events may be

admissible if they are "in furtherance" of the conspiracy and

"serve some current purpose, such as to . . . provide reassurances

to a co-conspirator or prompt one not a member of the conspiracy

to respond in a way that furthers the goals of the conspiracy."

State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div. 1997).

The trial court must make a preliminary determination of

whether there is independent proof of the conspiracy. N.J.R.E.

104(b). Specifically, the court must determine whether there is

independent evidence "substantial enough to engender a strong

belief in the existence of the conspiracy and of [the] defendant's

participation." Phelps, supra, 96 N.J. at 511. The requisite

independent evidence may take many different forms, "such as books

and records, testimony of witnesses, or other relevant evidence.

There may be a combination of different types of proof." Id. at

511. "Thus, if the hearsay evidence is corroborated with

sufficient independent evidence that engenders a strong sense of

its inherent trustworthiness, it is admissible under the co-

conspirator exception." Savage, supra, 172 N.J. at 403.

Here, the two post-homicide text messages mentioning

defendant satisfied all three factors for admissibility and did

16 A-1014-14T3

not violate defendant's confrontation rights. Although defendant

asserts the conspiracy had ended when the robbery was completed,

a conspiracy may continue beyond the commission of the object of

conspiracy. Cherry, supra, 289 N.J. Super. at 523-24. In Cherry,

we held that statements made after a murder by a co-conspirator

to his wife, explaining her alibi role, were made in the course

of the conspiracy because the husband was still planning to conceal

himself from detection and dispose of evidence. 289 N.J. Super.

at 523-24. The conspiracy in this case continued after the initial

conspiratorial object of robbing Wiggins was satisfied because the

text messages show that defendant and his co-conspirators

continued to collaborate about the homicide.

Moreover, the text messages satiate the remaining two prongs

to qualify for admissibility pursuant to the co-conspirator

hearsay exception. The text messages between Aron and Kenny-Mike

were exchanged in furtherance of the conspiracy, and the exchange

of messages "promoted, or [were] intended to promote, the goals

of the conspiracy" by evading apprehension. State v. Farthing,

331 N.J. Super. 58, 84 (App. Div. 2000) (quoting United States v.

Beech-Nut Nutrition Corp., 871 F. 2d. 1181, 1199 (2d. Cir.), cert.

denied sub nom., Lavery v. United States, 493 U.S. 933, 110 S. Ct.

324, 107 L. Ed. 2d 314 (1989)). The text messages reassured Aron

that defendant was abiding by their plan, and encouraged him to

17 A-1014-14T3

destroy evidence and evade apprehension by directing him to delete

the message. The text message stating "Fitch said they mite b

cumin 4 u . . . they took him in" apprised Kenny-Mike that

detectives had interviewed defendant and warned Kenny-Mike that

investigators might be coming for him, hindering Kenny-Mike's

apprehension and prosecution.

Finally, there was ample evidence independent of the text

messages supporting the judge's determination that a conspiracy

existed and defendant participated in it. Everett's videotaped

statement described the formation of the conspiracy to commit the

robbery, recounting both Aron and defendant speaking about robbing

Wiggins. In addition, defendant's DNA was found on the black

cloth hat recovered less than a mile from Wiggins' apartment.

Defendant was similarly involved in the post-homicide conspiracy

to avoid apprehension, discarding his mask during flight after the

homicide, and admitting to Everett that "they got rid of the gun."

Accordingly, admission of the text messages was proper.

III.

For the first time on appeal in Point II of his initial brief,

defendant challenges evidence of alleged other crimes he committed

by firing a gun not identified as the murder weapon under

circumstances where he was not accused of being the shooter and

smoking weed prior to the robbery. Because defendant did not

18 A-1014-14T3

raise this argument at trial, we review it for plain error. R.

2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). We will reverse

on the basis of an unchallenged error only if it was "clearly

capable of producing an unjust result." Macon, supra, 75 N.J. at

337. To reverse for plain error, we must determine there is a

real possibility that the error led to an unjust result, that is,

"one sufficient to raise a reasonable doubt as to whether [it] led

the jury to a result it otherwise might not have reached." Id.

at 336.

"[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." N.J.R.E. 404(b). However,

"[s]uch 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. Ibid.

"The threshold determination under Rule 404(b) is whether the

evidence relates to 'other crimes,' and thus is subject to

continued analysis under Rule 404(b), or whether it is evidence

intrinsic to the charged crime, and thus need only satisfy the

evidence rules relating to relevancy, most importantly, Rule 403."

State v. Rose, 206 N.J. 141, 179 (2011); see also State v.

Sheppard, 437 N.J. Super. 171, 193 (App. Div. 2014) (holding that

19 A-1014-14T3

if the evidence is intrinsic, "N.J.R.E. 404(b) does not apply

because the evidence does not involve some other crime, but instead

pertains to the charged crime").

As the Court acknowledged, the term "intrinsic" is not easy

to define with precision. Rose, supra, 206 N.J. at 178. To

address this difficulty, the Court adopted the test articulated

in United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010),

limiting intrinsic evidence to two narrow categories of evidence.

Id. at 180. The first category applies to evidence that "directly

proves" the charged offense. Ibid. The operative factor is

whether the evidence has probative value as to the charged offense.

The Court explained that "[t]his gives effect to Rule 404(b)'s

applicability only to evidence of 'other crimes, wrongs, or acts.'

If uncharged misconduct directly proves the charged offense, it

is not evidence of some 'other' crime." Ibid. (quoting Green,

supra, 617 F.3d at 248-49). The Court adopted Green's definition

of the second category of intrinsic evidence, stating that

"uncharged acts performed contemporaneously with the charged crime

may be termed intrinsic if they facilitate the commission of the

charged crime." Ibid. (quoting Green, supra, 617 F.3d at 249).

Evidence of defendant's conduct with the gun at Everett's

home was intrinsic evidence because it directly proved the charged

crimes. Defendant removed the gun from Everett's backyard and

20 A-1014-14T3

later returned to Everett's home with it and discharged it on the

back roof. Defendant and Aron discussed robbing the weed man

using the gun, they left Everett's home with the gun, and the day

after the homicide defendant told Everett "they got rid of the

gun." Further, Everett described the gun as a "revolver" and

"shell catcher," which was consistent with the testimony of the

State's expert that the .38 caliber bullet recovered from Wiggins'

body could have been fired from a revolver, and with evidence that

no shell casings were found at the scene.

The evidence in this case indicates the gun defendant

possessed and discharged mere hours before the robbery and homicide

was the same gun used by his co-conspirators to commit those crimes

and supports the inference that defendant allowed use of the gun

to promote the conspiracy. Therefore, the evidence was admissible

as intrinsic evidence because it directly proved defendant was

part of the conspiracy.

There is no merit in defendant's claim that he was prejudiced

by admission of evidence that he "smoked weed." Defendant did not

object to this evidence or request a curative or limiting

instruction, and he twice referred to it during summation.2

Moreover, this evidence was material to facts at issue in

2

Defendant appeared pro se at trial and was assisted by standby

counsel.

21 A-1014-14T3

determining defendant's guilt on the charged offenses, indicating

that he knew Wiggins and supplied the catalyst for the formation

of the robbery plan. We conclude that the complained-of error did

not rise to the level of plain error.

IV.

Everett's redacted videotaped statement was played to the

jury during Baldwin's testimony; certain portions were played

during the prosecutor's summation; and the video was re-played to

the jury in defendant's presence during deliberations in response

to a jury question. After the jury resumed deliberations,

defendant lodged a hearsay objection to the following statements:

BALDWIN: What did he tell you? Take your

time. I need you to think, man. Just be

truthful with us.

EVERETT: I’m being truthful with you.

BALDWIN: Yeah, no, the story—the story is

correct. I mean, the story adds up,

corroborated with the . . . other information

we've learned from other people we've talked

to, so I know you’re being truthful with us.

Just take your time and think about exactly

what he said to you.

As the interview concluded, the detectives said the following to

Everett and his mother:

BALDWIN: [Everett] witnessed things that led

up to the homicide.

22 A-1014-14T3

DETECTIVE NELSON: And the information that

he's given, we've heard it one, two, three

times before, so it's like—

BALDWIN: Just wanted him to be truthful with

us and I'm glad, and I thank you for bringing

him down. I'm glad you're being truthful with

us. We know—we knew the story.

EVERETT: I wish I told you earlier.

The judge overruled the objection and denied defendant's request

for a limiting instruction.

Defendant contends in Point III of his initial brief that

these portions of Everett's videotaped statement constituted

inadmissible hearsay prohibited by State v. Bankston, 63 N.J. 263

(1973). Defendant also contends the judge erred in failing to

issue a limiting instruction on the limited use of this evidence,

and his confrontation rights were violated.

Defendant's untimely objection does not alter the standard

of review from one for plain error. See R. 1:7-2 (requiring

objection "at the time the ruling or order is made or sought");

State v. Weston, 222 N.J. 277, 294 n. 5 (2015); Pressler &

Verniero, Current N.J. Court Rules, comment 2 on R. 1:7-2 (2017)

(noting the need to provide the court with a basis of complaint

to permit an opportunity to respond). The question therefore is

whether the detectives' remarks prejudiced a substantial right of

defendant and therefore were capable of producing an unjust result.

23 A-1014-14T3

State v. Douglas, 204 N.J. Super. 265, 272-73 (App. Div.), certif.

denied, 102 N.J. 378 (1985). We conclude they did not.

In Bankston, the Court concluded that both the Confrontation

Clause and the hearsay rule are violated when, at trial, a police

officer conveys, directly or by inference, information from a non-

testifying declarant to incriminate the defendant in the crime

charged. 63 N.J. at 268-69. To protect the defendant from the

confrontation problems associated with such evidence, restrictions

have been placed on Bankston-type testimony. An officer may

explain the reason he approached a suspect or went to a crime

scene by stating he did so "upon information received," Banskton,

supra, 63 N.J. at 268, but the officer may not become more specific

by repeating details of the crime, or implying he received evidence

of the defendant's guilt, as related by a non-testifying witness.

State v. Luna, 193 N.J. 202, 216-17 (2007).

The Court affirmed and reinforced the Bankston rule in State

v. Branch, 182 N.J. 338 (2005). In Branch, an officer testified

he had included the defendant's photograph in an array "because

he had developed defendant as a suspect 'based on information

received.'" Id. at 342. The Court determined the officer's

testimony was inadmissible hearsay, engendering a jury that "was

left to speculate that the detective had superior knowledge through

hearsay information implicating defendant in the crime." Id. at

24 A-1014-14T3

348. The Court noted "[b]ecause the [informant] . . . was not

called as a witness, the jury never learned the basis of [the

informant's] knowledge regarding defendant's guilt, whether he was

a credible source, or whether he had a peculiar interest in the

case." Ibid. The Court emphasized that the introduction of this

"gratuitous hearsay testimony violated defendant's federal and

state rights to confrontation as well as our rules of evidence."

Ibid. The Court concluded by finding the violation sufficiently

prejudicial, warranting reversal as plain error. Id. at 354.

The present case is distinguishable from Bankston. The

complained-of statements came from a videotaped statement, not

live testimony. Defendant had the videotaped statement in his

possession well before trial, and also had the opportunity to

request redactions. Before the videotape was played to the jury,

defendant had the opportunity to view the proposed redactions, and

he accepted them. The hearsay rule does not apply to facts agreed

to by the parties. State v. Neal, 361 N.J. Super. 522, 534 (App.

Div. 2003) (citing N.J.R.E. 101(a)(4)). Accordingly, the judge

properly rejected defendant's untimely hearsay challenge. See

State v. Lanzo, 44 N.J. 560, 566 (1965) (noting that "the defendant

is in no position to urge prejudicial error" where he was afforded

the opportunity and declined to propose redactions to an admissible

statement).

25 A-1014-14T3

In addition, there was no plain error as to the lack of a

limiting instruction. Examining plain error in the Bankston

context, hearsay testimony is prejudicial to the defendant when

the State's case is tenuous. However, "when a case is fortified

by substantial credible evidence—for example, direct

identification of the defendant—the testimony is not likely to be

prejudicial under the 'plain error' rule." State v. Irving, 114

N.J. 427, 448 (1989). While Everett's videotaped statement was

undoubtedly the key to proving defendant's guilt, its reliability

was established through independent evidence, nullifying any

perceived Bankston prejudice.

Specifically, Smith testified that he and Wiggins drove by

Everett's home in Neptune and Wiggins waved to Aron, corroborating

Everett's statement that defendant's co-conspirator was at his

home and saw Wiggins. Police Officer Marques Alston corroborated

Everett's statement that a person fleeing the fight ran through

his backyard and discarded a gun. Aron's cellphone records

indicating that a call was made to Wiggins from the Neptune area

immediately before the robbery corroborated Everett's statement

that defendant and Aron talked about going to Wiggins' home. The

ballistics report, noting both the absence of a shell casing on

scene and that Wiggins was likely murdered with a revolver, was

26 A-1014-14T3

consistent with Everett's statement that defendant had possession

of and discharged a revolver.

The text message mentioning defendant and the police

investigation established the co-conspirators' contact and

collaboration with each other after the robbery and corroborated

Everett's account of defendant's identification of the

participants in the robbery. Finally, the physical evidence

collected from the nearby parking lot containing Tahj's DNA and

the hat and gloves discovered on Grant Avenue containing

defendant's DNA supported Everett's explanation of the robbery.

Accordingly, there was no plain error in the admission of the

detectives' statements and the judge's failure to proffer a

limiting instruction.

V.

Defendant contends for the first time on appeal in Point IV

of his initial brief that Baldwin's testimony opining on Everett's

credibility and defendant's guilt was improper and deprived him

of a fair trial. Defendant relies on Baldwin's testimony on direct

examination that he "did [not] believe Everett was involved in the

death of . . . Wiggins."

Defendant also relies on Baldwin's testimony that Everett

"was reluctant, it took him a year to be truthful about

[defendant's] involvement in this homicide, so I didn't want any

27 A-1014-14T3

harm to come to him." However, because this testimony occurred

on cross-examination, it constituted invited error. Under the

invited error doctrine, trial errors that "were induced,

encouraged or acquiesced in or consented to by defense counsel

ordinarily are not a basis for reversal on appeal[.]" State v.

A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J.

339, 345 (1987)). "In other words, if a party has 'invited' the

error, he is barred from raising an objection for the first time

on appeal." Ibid. (citation omitted.) Thus, we focus on Baldwin's

direct testimony that he did not believe Everett was involved in

the homicide.

"[O]ne witness cannot vouch for the truth of another witness's

testimony." See State v. Lazo, 209 N.J. 9, 24 (2012). A witness

is not permitted to vouch for the testimonial account of another

witness "because the ultimate determination of a witness's

credibility falls within the exclusive domain of the jury." R.B.,

supra, 183 N.J. at 337.

Baldwin's testimony did not constitute improper vouching.

There was no evidence whatsoever suggesting that Everett was

involved in the crimes. Thus, Baldwin's testimony that he did not

believe Everett was involved in Wiggins' death caused no error,

let alone plain error. Baldwin's direct testimony did not

28 A-1014-14T3

prejudice defendant, as Baldwin did not comment on defendant's

truthfulness, guilt, or innocence, or Everett's credibility.

VI.

Defendant challenges the jury charge on accomplice liability

for the first time on appeal in Point V of his initial brief. He

argues that because the jury was charged on robbery as a lesser-

included offense of armed robbery, the judge erred in charging

Model Jury Charge (Criminal), "Liability for Another's Conduct"

(N.J.S.A. 2C:2-6) (1995) Charge #1 - Where defendant is charged

as accomplice and jury does not receive instruction on lesser

included charges (Charge #1). Defendant argues the judge should

have charged Model Jury Charge (Criminal), "Liability for

Another's Conduct" (N.J.S.A. 2C:2-6) (1995) Charge #2 - "Where

defendant is charged as accomplice and jury is instructed as to

lesser included charges" (Charge #2).

At the charge conference, defendant requested an accomplice

liability charge to address the lesser-included offense of

"accessory after the fact." Defendant never requested Charge #2.

In denying the request, the judge explained that complicity was a

theory of liability, not a charge itself, and therefore "accessory

after the fact" could not be a lesser-included offense of the

accomplice liability theory. Defendant subsequently approved all

the jury charges given in this case.

29 A-1014-14T3

"Appropriate and proper jury charges are essential for a fair

trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State

v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court must give

'a comprehensible explanation of the questions that the jury must

determine, including the law of the case applicable to the facts

that the jury may find.'" Id. at 159 (quoting State v. Green, 86

N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent

duty . . . to ensure that the jurors receive accurate instructions

on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either

party." Ibid. (quoting Reddish, supra, 181 N.J. 613). "Because

proper jury instructions are essential to a fair trial, 'erroneous

instructions on material points are presumed to' possess the

capacity to unfairly prejudice the defendant." Ibid. (quoting

State v. Bunch, 180 N.J. 534, 541-42 (2004)).

When a defendant fails to object to an error regarding jury

charges, we review for plain error. State v. Funderburg, 225 N.J.

66, 79 (2016). "Under that standard, we disregard any alleged

error [in the charge] 'unless it is of such a nature as to have

been clearly capable of an unjust result.'" Ibid. (quoting R.

2:10-2). "The mere possibility of an unjust result is not enough.

To warrant reversal . . . an error [in the charge] must be

sufficient to raise 'reasonable doubt . . . as to whether the

30 A-1014-14T3

error led the jury to a result it otherwise might not have

reached.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361

(2004)).

"When a defendant might be convicted as an accomplice, the

trial court must give clear, understandable jury instructions

regarding accomplice liability." State v. Walton, 368 N.J. Super.

298, 306 (App. Div. 2004). "[A] principal and accomplice, although

perhaps guilty for the same guilty act, may have acted with

different or lesser mental states, thus giving rise to different

levels of criminal liability." State v. Latney, 415 N.J. Super.

169, 174 (App. Div. 2010) (quoting State v. Ingram, 196 N.J. 23,

41 (2008)). "[W]hen an alleged accomplice is charged with a

different degree offense than the principal or lesser included

offenses are submitted to the jury," the court must carefully

impart to the jury the distinctions between the specific intent

required for the offense. State v. Bielkiewicz, 267 N.J. Super.

520, 528 (App. Div. 1993).

We have extended Bielkiewicz to cases involving robbery.

Where the jury is instructed on both accomplice liability and the

lesser-included offense of robbery, the jury must be told that "an

accomplice who does not have a shared purpose 'to commit a robbery

with a weapon' is guilty of robbery—not armed robbery." State v.

Whitaker, 200 N.J. 444, 459 (2009) (quoting State v. Weeks, 107

31 A-1014-14T3

N.J. 396, 405 (1987)). Thus, the judge here should have

"additionally charged the jury according to Bielkiewicz's

mandate." Ingram, supra, 196 N.J. at 41.

However, the error was not sufficient to raise reasonable

doubt as to whether it led the jury to a result it otherwise might

not have reached. In Ingram, the trial court did not properly

instruct the jury under Bielkiewicz that the defendants alleged

to be accomplices to a robbery could be found guilty of the lesser-

included offense of theft. Ingram, supra, 196 N.J. at 36-37.

Nonetheless, our Supreme Court reinstated the robbery convictions,

holding as follows:

[W]here the indictment substantively charged

the defendant with both the greater and

lesser-included offenses, and the trial court

properly instructed the jury in respect of

each, the evil Bielkiewicz seeks to guard

against—that is, that the jury could have

found that one or more of the defendants were

guilty of robbery while also finding that one

or more of the defendants were guilty only of

the lesser-included offense of theft—does not

pose the same risk. We therefore conclude

that it was not reversible error when the

trial court instructed the jury on the

elements of the offenses of robbery and theft,

together with the elements required for

accomplice liability, without also

specifically charging that [o]ur law

recognizes that two or more persons may

participate in the commission of an offense

but each may participate therein with a

different state of mind" and that [t]he

liability or responsibility of each

participant for any ensuing offense is

32 A-1014-14T3

dependent on his/her own state of mind and not

on anyone else's.

[Id. at 40 (quoting Charge #2).]

Here, defendant asserts that even if he participated in the

robbery, he could have been unarmed and unaware that his co-

defendants were armed. He avers that the judge's accomplice

liability charge failed to differentiate between second-degree

robbery and first-degree robbery, where an actor "is armed with,

or uses or threatens the immediate use of a deadly weapon."

N.J.S.A. 2C:15-1(b). However, applying the Ingram principles,

defendant has failed to show prejudice. The judge properly

instructed the jury on first- and second-degree robbery. Moreover,

although the indictment only charged defendant with first-degree

robbery, the verdict sheet gave the jury the option of convicting

him of either first- or second-degree robbery. Thus, the

Bielkiewicz error here "was not reversible error." Ingram, supra,

196 N.J. at 40.

Other factors support this conclusion. Defendant was not

tried with his co-defendants. While "[t]he fact defendant was

tried alone is not dispositive," State v. Franklin, 377 N.J. Super.

48, 57 (App. Div. 2005), that fact makes it a more "remote

possibility that [the jurors] were distracted from their task by

a conclusion that the principal had possessed a more culpable

intent than the accomplice." State v. Norman, 151 N.J. 5, 39

33 A-1014-14T3

(1997). In addition, defendant maintained through this matter

that he was not involved at all in the robbery. While this does

not "eliminate[] the possibility that a faulty accomplice

liability charge could have prejudiced him," State v. Cook, 300

N.J. Super. 476, 488 (App. Div. 1996), it does reduce the

likelihood. Where "a defendant argues that he was not involved

in the crime at all," that helps to show the "defendant suffered

no prejudice" from a failure to instruct the jury on accomplice

liability under Bielkiewicz. State v. Maloney, 216 N.J. 91, 105-

06, 109-10 (2013). As we have held:

Even if the judge should have instructed the

jury that it could convict defendant of the

lesser included offense of second degree

robbery as [an] accomplice if it found that

defendant's purpose was only to participate

in the robbery, and not to commit armed

robbery, the failure to give a Bielkiewicz

charge is not plain error . . . [if] there was

no evidence presented that the principal may

have acted with a different purpose than the

accomplice.

[State v. Oliver, 316 N.J. Super. 592, 597

(App. Div. 1998), aff'd, 162 N.J. 580 (2000).]

Considering the totality of the circumstances, including the

entirety of the jury charges, the strength of the State's case,

the nature of the defense, and the verdict sheet, we conclude that

defendant failed to show the omission of the Bielkiewicz language

from the accomplice liability charge was not "clearly capable of

34 A-1014-14T3

producing an unjust result." R. 2:10-2. The absence of prejudice

is confirmed by defendant's failure to request a Bielkiewicz charge

or object to the charge given.

VII.

Relying on State v. Gonzalez, 444 N.J. Super. 62 (App. Div.),

certif. denied, 226 N.J. 209 (2016), defendant contends for the

first time on appeal in Point IV of his pro se supplemental brief

that the use of the phrase "and/or" in the jury charges for first-

and second-degree robbery, accomplice liability, and felony murder

rendered the charges impermissibly ambiguous, generating

uncertainty that the jury was unanimous in finding the elements

of these crimes. We disagree.

In Gonzalez, the defendant was charged as a co-conspirator

and accomplice with robbery and three counts of aggravated assault.

444 N.J. Super. at 73. We found error in the jury charge on

conspiracy and accomplice liability because the charge referred

to "robbery and/or aggravated assault" when referring to the

substantive crimes the co-defendants were alleged to have

committed for which the defendant was to be considered accountable.

Id. at 73-75. We explained the critical flaw in the charge as

follows:

[T]he nature of the indictment required that

the jury decide whether defendant conspired

in or was an accomplice in the commission of

35 A-1014-14T3

a robbery, or an aggravated assault, or both.

By joining (or disjoining) those

considerations with "and/or" the judge

conveyed to the jury that it could find

defendant guilty of either substantive offense

— which is accurate — but left open the

possibility that some jurors could have found

defendant conspired in or was an accomplice

in the robbery but not the assault, while

other jurors could have found he conspired in

or was an accomplice in the assault but not

the robbery. In short, these instructions did

not necessarily require that the jury

unanimously conclude that defendant conspired

to commit or was an accomplice in the same

crime. Such a verdict cannot stand.

The jury was also told that "to find the

defendant guilty of committing the crimes of

robbery and/or aggravated assault charges, the

State must prove [among other things] that the

co-defendant] committed the crimes of robbery

and/or aggravated assault." Assuming the

"and/or" in this instruction was interpreted

as being a disjunctive, it is entirely

possible the jury could have convicted

defendant of both robbery and aggravated

assault even if it found [the co-defendant]

committed only one of those offenses, i.e.,

the jury was authorized, if it interpreted

"and/or" in this instance as "or," to find

defendant guilty of robbery because it was

satisfied the State proved that [the co-

defendant] committed an aggravated assault.

[Id. at 75-77 (citations omitted).]

The phrase "and/or" is used repeatedly in Charge #1. The

judge's accomplice liability charge mirrored Charge #1 as follows,

in pertinent part:

So now I'm going to talk to you about

accomplice liability. Now this is liability

36 A-1014-14T3

for another's conduct. It's called accomplice

liability.

The State alleges that the defendant

. . . is legally responsible for the criminal

conduct of co-defendants Kenneth Bacon-

Vaughters, Aron Pines and/or Tahj Pines in

violation of the law which reads in pertinent

part as follows:

A person is guilty of an offense if

. . . it is committed by his own conduct or

the conduct of another person for which he is

legally accountable, or both.

A person is legally accountable for the

conduct of another person when he is an

accomplice of such other person in the

commission of an offense. A person is an

accomplice of another person in the commission

of an offense if, with the purpose of

promoting or facilitating the commission of

the offense he, A, solicits such other persons

to commit it and/or B, aids or agrees or

attempts to aid such other persons in planning

or committing it. This provision of the law

means that not only is the person who actually

commits the criminal act responsible for it,

but one who is legally accountable as an

accomplice is also responsible.

Now, this responsibility as an accomplice

may be equal and the same as he who actually

committed the crimes or there may be

responsibility in a different degree,

depending on the circumstances as you find

them to be. I will further explain this

distinction in a moment.

In this case, the State alleges that the

defendant . . . is equally guilty of the crimes

committed by co-defendants Kenneth Bacon-

Vaughters, Aron Pines and Tahj Pines, because

he acted as their accomplice with the purpose

that the specific crimes charged be committed.

37 A-1014-14T3

In order to find the defendant . . .

guilty of the specific crimes charged, the

State must prove beyond a reasonable doubt

each of the following elements:

That co-defendants Kenneth Bacon-

Vaughters, Aron Pines and/or Tahj Pines

committed the crimes of armed robbery,

robbery, felony murder or possession of a

firearm for an unlawful purpose; that the

defendant . . . solicited the co-defendants

Kenneth Bacon-Vaughters, Aron Pines and/or

Tahj Pines to commit and/or did aid or agree

or attempt to aid them in planning or

committing the crimes; three, that the

defendant['s] . . . purpose was to promote or

facilitate the commission of the aforesaid

crimes; and four, the defendant . . .

possessed the criminal state of mind that is

required to be proved against the person who

actually committed the criminal act.

Remember that one acts purposely with

respect to his conduct or a result thereof,

if it is his conscious object to engage in

conduct of the nature or to cause such a

result.

. . . .

If you find that defendant . . . with the

purpose of promoting or facilitating the

commission of the crimes solicited co-

defendant Kenneth Bacon-Vaughters, Aron Pines

and/or Tahj Pines to commit them, or aided,

or agreed or attempted to aid them in planning

or committing them, then you should consider

[defendant] as if he committed the crimes.

In this case, accomplice liability status

should be considered separately for the crimes

of armed robbery, robbery, felony murder, and

possession of a . . . firearm for [an] unlawful

purpose.

38 A-1014-14T3

. . . .

An accomplice may be convicted of proof

of the commission of a crime or of his

complicity therein, even though the person who

is claimed [to have] committed the crime has

not been prosecuted or has been convicted of

a different offense or degree of offense, or

has immunity from prosecution or conviction

or has been acquitted.

. . . .

In order to convict the defendant as an

accomplice to the crimes charged, you must

find the defendant . . . had the purpose to

participate in that particular crime. He must

act with the purpose of promoting or

facilitating the commission of the substantive

crimes with which he is charged. It is not

sufficient to prove only that the defendant

. . . had knowledge that other person or

persons were going to commit the crimes

charged. The State must prove that it was

defendant['s] . . . conscious object that

. . . the specific conduct charged be

committed.

In sum, in order to find the defendant

. . . guilty of the crime of accomplice to

commit armed robbery, robbery, felony murder.

possession of a . . . firearm for [an] unlawful

purpose, the State must prove each of the

following elements beyond a reasonable doubt:

That co-defendant Kenneth Bacon

Vaughters, Aron Pines and Tahj Pines committed

the crimes of armed robbery, robbery, felony

murder and possession of [a] firearm for [an]

unlawful purpose; that defendant solicited

. . . them . . . to commit them and/or did aid

or agree or attempt to aid the co-defendants

Kenneth Bacon-Vaughters, Aron Pines and/or

Tahj Pines in planning or committing [the]

crimes; three, defendant['s] . . . purpose was

39 A-1014-14T3

to promote or facilitate the commission of the

crimes, meaning armed robbery, robbery, felony

murder or possession of [a] firearm for [an]

unlawful purpose; and four, that defendant

. . . possessed the criminal state of mind

that is required to be proved against the

person who actually committed the criminal

acts.

I remind you again as to the charges of

armed robbery, robbery, felony murder and

possession of [a] weapon for [an] unlawful

purpose to consider the accomplice charge

separately.

. . . .

As I previously instructed, any verdict

rendered must be unanimous, meaning all

[twelve] jurors must agree as to the finding

of guilty or not guilty.

[(Emphasis added).]

Unlike Gonzalez, the charge here did not connect the

substantive crimes of defendant's co-defendants with "and/or."

Rather, the jury was charged that to find defendant guilty as an

accomplice, the State must prove: (1) the co-defendants committed

the crimes of armed robbery, robbery, felony murder or possession

of a firearm for an unlawful purpose; (2) defendant's purpose was

to promote or facilitate the commission of the crimes; and (3)

defendant possessed the criminal state of mind required to be

proved against the person who actually committed the crimes. The

charge adequately instructed the jury that it should consider

defendant's accomplice liability status separately for the crimes

40 A-1014-14T3

of armed robbery, robbery, felony murder, and possession of a

weapon for an unlawful purpose, and determine whether defendant

had the purpose to participate in that particular crime. We

discern no plain error in use of the phrase "and/or" in the

accomplice liability charge.

We also discern no plain error in use of the phrase "and/or"

in the first- and second-degree jury charges. The judge charged

the jury on first- and second- degree robbery as follows, in

pertinent part:

A section of our statute provides that

robbery is a crime of the second degree,

except that armed robbery is a crime of the

first degree if the actor, A, purposely

attempted to kill anyone and/or B, purposely

inflicted or attempted to inflict bodily

injury and/or C, was armed with or threatened

the immediate use of a deadly weapon.

. . . .

[I]f you find the State has proven beyond a

reasonable doubt that the defendant . . .

committed the crime of robbery as I have

defined that crime to you, but if you also

find the State has failed to prove beyond a

reasonable doubt as to whether, A, defendant

purposely attempted to kill Nathaniel Wiggins

and/or B, defendant purposely inflicted or

attempted to inflict serious bodily injury

upon Nathaniel Wiggins

and/or C, defendant was armed with, or used

or threatened immediate use of a deadly weapon

at the time of commission of the robbery, then

you must find the defendant . . . guilty of

robbery in the second degree.

41 A-1014-14T3

If you find the State has proven beyond

a reasonable doubt that defendant, while in

the course of committing a theft, A, purposely

attempted to kill Nathaniel Wiggins and/or B,

purposely inflicted or attempted to inflict

serious bodily injury upon Nathaniel Wiggins

and/or C, was armed with, or used or

threatened the immediate use of a deadly

weapon, then you must find the defendant

. . . guilty of robbery in the first degree.

[(Emphasis added).]

Defendant argues that the charge was impermissibly ambiguous,

generating uncertainty the jury was unanimous in finding the

elements of these two crimes.

A unanimity instruction requires unanimous agreement as to

each element of the offense. State v. Gentry, 183 N.J. 30, 33

(2005). Ordinarily, a general jury instruction requiring

unanimity suffices in directing the jury that it must unanimously

agree on the specific predicate of a guilty verdict. State v.

Cagno, 211 N.J. 488, 516-17 (2012). Here, the judge instructed

the jury on unanimity as follows:

The verdict must represent the considered

judgment of each juror and must be unanimous

as to each charge. This means all of you must

agree if the defendant is guilty or not guilty

on each charge.

. . . .

Now, I'll talk to you just again about

unanimous verdict. I've mentioned that a few

times. You may return on each crime charged

a verdict of either not guilty or guilty. Your

42 A-1014-14T3

verdict, whatever it may be as to each crime

charged, must be unanimous. Each of the

twelve members of the deliberating jury must

agree as to the verdict.

In some circumstances, a general charge of unanimity creates

the possibility of jury confusion or that a conviction may occur

as a result of different jurors concluding the defendant committed

conceptually different acts. State v. Parker, 124 N.J. 628, 641

(1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed.

2d 625 (1992). In those circumstances, where danger of a

fragmented verdict exists, a specific unanimity instruction is

required. Id. at 641-42. These circumstances include:

where (1) a single crime could be proven by

different theories supported by different

evidence, and there is a reasonable likelihood

that all jurors will not unanimously agree

that the defendant's guilt was proven by the

same theory; (2) the underlying facts are very

complex; (3) the allegations of one count are

either contradictory or marginally related to

each other; (4) the indictment and proof at

trial varies; or (5) there is strong evidence

of jury confusion.

[Cagno, supra, 211 N.J. at 517 (citation

omitted).]

A specific unanimity charge was not necessary as none of

these circumstances existed in this case. The State proceeded on

a single factual and legal theory of defendant's guilt. The

underlying facts to support either element A (defendant purposely

attempted to kill Wiggins), or B (defendant purposely inflicted

43 A-1014-14T3

or attempted to inflict serious bodily injury upon Wiggins),3 were

not very complex, and the allegations of the counts constituted

parts of a single unified theory. Further, there was no evidence

of jury confusion. The judge instructed the jury as to what

evidence to consider when deliberating each charge, and the jury

never sought clarification or expressed uncertainty regarding the

execution of its fact-finding duties. See State v. Gandhi, 201

N.J. 161, 193-94 (2008).

Despite the judge's use of the phrase "and/or," the charge

required the jury to unanimously determine whether defendant

purposely attempted to kill Wiggins or purposely inflicted or

attempted to inflict serious bodily on Wiggins. Thus, the jury

could find defendant intended to inflict serious bodily injury on

Wiggins, which is a component of an attempt to kill, or that

defendant attempted to kill Wiggins. Both distill into a unanimous

jury verdict.

Lastly, the judge instructed on felony murder in pertinent

part as follows:

Criminal homicide constitutes murder

when it is committed when the actor, either

acting alone or with one or more other

persons, is engaged in the commission of or

3

There was no evidence to support a finding on element C

(defendant was armed with, or used or threatened the immediate use

of a deadly weapon), which eliminates any possibility of a less-

than-unanimous jury finding.

44 A-1014-14T3

attempt to commit or flight after committing

or attempting to commit armed robbery and/or

robbery, and in the course of such crime or

the immediate flight therefrom, any person

causes the death of a person other than one

of the participants.

[(Emphasis added).

Use of the phrase "and/or" in the charge was not plain error

because unanimity was not required on the issue of whether

defendant's predicate felony was robbery or armed robbery.

N.J.S.A. 2C:11-3(a)(3) provides that "criminal homicide

constitutes murder when . . . [i]t is committed when the actor,

acting either alone or with one or more other persons, is engaged

in the commission of, or an attempt to commit, or flight after

committing or attempting to commit robbery[.]" Because robbery

is a lesser-included offense of armed robbery, a jury concluding

beyond a reasonable doubt that the defendant was guilty of armed

robbery necessarily also found him guilty of robbery. Here, the

jury unanimously found defendant guilty of armed robbery. Thus,

regardless of the use of the phrase "and/or" in the charge, the

jury here necessarily found defendant guilty of robbery, a

qualifying predicate felony for felony murder.

VIII.

Defendant contends in Point VII of his initial brief that his

forty-year sentence is excessive. He argues he had no prior

45 A-1014-14T3

record, was seventeen years old at the time of the homicide, was

not the shooter, and the shooter received a forty-year sentence.

Defendant also argues that State v. Zuber, 227 N.J. 422 (2017)

compels a remand for re-sentencing because he was a juvenile at

the time of the murder.4

At sentencing, the judge found aggravating factor N.J.S.A.

2C:44-1(a)(3), "[t]he risk that the defendant will commit another

offense," based on defendant's pending weapons and possession

charges. The judge also found aggravating factor N.J.S.A. 2C:44-

1(a)(9), "[t]he need for deterring the defendant and others from

violating the law," emphasizing the national epidemic of gun

violence in general, and the pervasive problem of gun violence in

Asbury Park and Neptune specifically.

The judge found mitigating factor N.J.S.A. 2C:44-1(b)(11),

that defendant's imprisonment would entail excessive hardship to

himself and his young son. The judge also considered defendant's

age at the time of the offense and mental health issues. The

judge concluded the aggravating factors substantially outweigh the

single mitigating factor.

Our review of a sentence is limited. State v. Miller, 205

N.J. 109, 127 (2011). Our basic responsibility is to assure that

4

The Court decided Zuber after defendant's sentencing.

46 A-1014-14T3

the aggravating and mitigating factors found by the sentencing

judge are supported by competent, credible evidence in the record.

Ibid. As directed by the Court, we must determine whether:

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors

found by the sentencing court were not based

upon competent and credible evidence in the

record; or (3) the application of the

guidelines to the facts of [the] case makes

the sentence clearly unreasonable so as to

shock the judicial conscience.

[State v. Fuentes, 217 N.J. 57, 70 (2014)

(quoting State v. Roth, 95 N.J. 334, 364-65

(1984)).]

We review a judge's sentencing decision under an abuse of

discretion standard. Ibid.

We discern no abuse of discretion in defendant's sentence.

The judge did not violate the sentencing guidelines, and the record

amply supports his findings on aggravating and mitigating factors.

The sentence is clearly reasonable and does not shock our judicial

conscience.

Further, Zuber is inapplicable. In Zuber, the court sentenced

the juvenile defendant to an aggregate 110-year sentence with

fifty-five years of parole ineligibility. 227 N.J. at 428. The

Court extended the United States Supreme Court's decision in Miller

v. Alabama, 576 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)

to juvenile offenders who were subject to life-without-parole

47 A-1014-14T3

sentencing, sentenced to "the practical equivalent of life without

parole," and subject to "multiple term-of-years sentences that,

in all likelihood, will keep him in jail for the rest of his life."

Id. at 446, 448. In this case, defendant received a forty-year

sentence with a thirty-four-year parole bar, and will be eligible

for parole at the age of fifty-three. Unlike in Zuber, defendant's

sentence is not a life sentence or its practical equivalent.

Affirmed.

48 A-1014-14T3