STATE OF NEW JERSEY VS. LAVELLE DAVIS STATE OF NEW JERSEY VS. JIMMY P. MAYS (17-05-1348, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5915-17

A-1243-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAVELLE DAVIS,

Defendant-Appellant.

_______________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JIMMY P. MAYS,

Defendant-Appellant.

_______________________

Submitted (A-5915-17) and Argued (A-1243-18)

January 27, 2021 – Decided October 8, 2021

Before Judges Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 17-05-

1348.

Joseph E. Krakora, Public Defender, attorney for

appellant Lavelle Davis (Michele A. Adubato,

Designated Counsel, and Alison Perrone, First

Assistant Deputy Public Defender, on the briefs;

Amanda Savage, Assistant Deputy Public Defender, of

counsel and on the briefs).

Anthony J. Vecchio, Designated Counsel, argued the

cause for appellant Jimmy P. Mays (Joseph E.

Krakora, Public Defender, attorney; Jodi Ferguson,

Assistant Deputy Public Defender; Anthony J.

Vecchio, and Michael Robbins, Designated Counsel,

on the briefs).

Emily M. M. Pirro, Special Deputy Attorney

General/Acting Assistant Prosecutor, argued the cause

for respondent State of New Jersey (Theodore N.

Stephens II, Acting Essex County Prosecutor,

attorney; Emily M. M. Pirro, of counsel and on the

briefs).

Appellant Lavelle Davis filed a pro se supplemental

brief.

Appellant Jimmy P. Mays filed a pro se supplemental

brief.

The opinion of the court was delivered by

WHIPPLE, J.A.D.

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In these back-to-back appeals, defendants Lavelle Davis and Jimmy P.

Mays appeal their judgments of conviction after their jury trial. We affirm all

convictions and remand for resentencing.

We glean the following facts from the record. On the morning of

January 29, 2017, Naya Riley was concerned when her father, Michael Davis

(Michael),1 did not answer his phone. She went to his Maplewood home to

check on him. She found his car parked outside but the door was locked, so

she called the police to request a welfare check. The fire department

responded and discovered Michael and his girlfriend, Roshana Kenilson, both

dead from gunshots to the head, apparently through pillows to muffle the

sound.

There were no signs of forced entry, but the bedroom was ransacked,

with boxes and furniture drawers opened and with their contents emptied

around the room, and clothing taken from the closet and thrown on the floor.

Duct tape remnants were found on the main floor, and blood stains were found

on the wall behind a couch in the living room. Another blood stain

encompassed two to three kitchen floor tiles. More blood stains, one

impressed with a footprint, led downstairs to the basement, where a third

1

We refer to Michael Davis by his first name only to avoid confusion with

defendant Lavelle Davis. In doing so we mean no disrespect.

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victim, Lance Frasier, was found dead with his legs and arms bound. More

duct tape, one piece with a fragment of a blue latex glove stuck to it, was

found in the basement, along with a shattered, black-tinted glass coffee table.

The police began an investigation that led to Frasier's house in Newark,

where he worked for Michael's drug dealing operation. The lock on his door

was broken off. A search inside yielded a bag of marijuana, 440 grams of

heroin, various drug packaging materials, a box of ammunition, a cell phone,

and documents belonging to Frasier.

Autopsies confirmed gunshot wounds to the head caused Michael's and

Kenilson's deaths. Frasier was also shot in the head. His eye was swollen

from blunt force trauma, and scratches and abrasions marred his face,

forearms, and shoulders. He had lacerations on his eyelid and lips, three

lacerations on the side of his head, cuts on his elbows, and four stab wounds

on his buttocks. A ballistics analysis showed that two different guns fired the

bullets that killed the three victims.

Ayesha Murray, a friend of Michael's, went to his house at 6:00 p.m. the

night before the police found the victims. Frasier was also there. Michael's

cell phone records show that at 7:57 p.m., he received a text message from a

number beginning with 914 stating, "on the road, hour." The 914 number was

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associated with a pre-paid cell phone card that Davis had purchased a few

weeks earlier. Surveillance footage showed a black GMC Yukon parked near

the home at 9:26 p.m., and an Infiniti QXS6 drove by the home at

approximately 10:00 p.m.

Murray left the house to catch a cab, and she saw the silver Infiniti pass

by while she and Michael were standing outside. She recognized the driver as

a friend of Michael's, whom she knew as "Bro." When her cab arrived, she

walked to the curb to get in and saw Bro walking back toward the home

without the car. She greeted him, but he did not respond and walked past her

and into Michael's house. At trial, she identified Bro as Mays.

A neighbor observed Michael walking his dog down the street sometime

between 10:00 and 10:30 p.m. Phone records show beginning at 10:14 p.m.,

the 914 number began exchanging a series of messages with a 702 number,

linked to a second pre-paid cell phone card Davis had purchased. The

exchange continued through 2:26 a.m. with the following messages:

914 to 702: "Yo."

702 to 914: "Yoo."

914 to 702: "Show time. 2 bitches same spot."

702 to 914: "Hit me."

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914 to 702: "Shorty [girl] popped."

914 to 702: "Talk to me."

702 to 914: "Hour."

914 to 702: "Say that shorty posted up."

702 to 914: "Both the homies still there?"

914 to 702: "Yes, sir."

914 to 702: "Around?"

702 to 914: "Ten minutes."

914 to 702: "Cool. Kids just went to bed. Give a

little."

702 to 914: "How we looking?"

914 to 702: "Stomach messed up. About to use the

Bathroom."

914 to 702: "Yo."

702 to 914: "Yoo."

914 to 702: "Dumbass baby on the other couch in and

out. We was looking for a bottle to put him to sleep.

Can't find one. Bout to go the way you come open."

914 to 702: "Walk him up to the other babies unless

you want me to walk him with me so can feed his

crying ass."

702 to 914: "We can tie him up right where he at.

Then get upstairs."

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914 to 702: "Was saying less down there. Get what

I'm saying? Music on but okay."

914 to 702: "Cool though."

702 to 914: "Just got to be fast and quiet so we don't

wake the upstairs up."

914 to 702: "You out there?"

702 to 914: "Yeah."

914 to 702: "Come on."

702 to 914: "Door."

914 to 702: "Bac[k] open."

702 to 914: "Front or back?"

914 to 702: "Back open."

702 to 914: "Two minutes."

702 to 914: "You meeting us downstairs?"

914 to 702: "Come on."

914 to 702: "Yo."

702 to 914: "Here."

Kenilson arrived at some point in the evening. Neighborhood

surveillance footage showed two men exiting the black Yukon at 2:23 a.m.,

around the same time the last message was sent. The same neighbor who had

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earlier seen Michael walking the dog recalled hearing the dog screech and a

"pop sound" sometime between 2:00 and 3:00 a.m. Surveillance footage

showed the Infiniti leaving at 3:48 a.m. and the Yukon at about 3:50 a.m.

Surveillance footage, GPS data, and toll booth license plate readers

tracked the Yukon leaving and traveling to Frasier's house, arriving at

approximately 4:11 a.m. Footage showed two individuals exit the car, return

holding items that they did not have earlier, and drive away at approximately

4:40 a.m. Toll booth records showed the Yukon traveling on the Garden State

Parkway to the Barnegat Toll Plaza, not far from Davis's girlfriend's address.

The Infiniti, meanwhile, traveled southbound on the Parkway and then took the

New Jersey Turnpike until exiting near the Delaware Memorial Bridge.

A January 13, 2017, surveillance video from a Dollar Express store in

Pleasantville captured Davis buying two cell phones and two pre -paid minute

cards linked to the same 914 and 702 numbers and leaving in a large black

vehicle. Davis's girlfriend confirmed that Davis was using her black Yukon.

She testified that she and Davis often traded between two cars, both in her

name, but that the Yukon was his car and that he had it between January 20th

and 30th.

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The police searched the Yukon and found six cell phones, a folding

knife, paperwork in Davis's name, and a glass fragment tinted black on one

side and stained with a substance that appeared to be blood. The fragment was

consistent with the glass from the broken coffee table in Michael's basement,

and DNA testing on the stain revealed that the blood belonged to Frasier.

Mays's girlfriend confirmed Mays was using her Infinity QX56 around

the time of the murders. A search of that vehicle revealed a wallet and two

identification cards belonging to Mays. The stain found on the instep of a boot

he was wearing at his arrest tested presumptively positive for the presence of

blood, but the sample was not sufficient for DNA extraction or further

analysis.

In May 2017, both defendants were indicted, charged with three counts

of first-degree purposeful and knowing murder, N.J.S.A. 2C:11-3(a); two

counts of second-degree burglary, N.J.S.A. 2C:18-2; one count of first-degree

conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1);

first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed

robbery, N.J.S.A. 2C:15-1; second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b); second-degree possession of a weapon with an unlawful

A-5915-17

9

purpose, N.J.S.A. 2C:39-4(a); and third-degree criminal restraint, N.J.S.A.

2C:13-2.

The jury trial was held between April 3 and May 11, 2018. The State

presented the largely circumstantial evidence outlined above and pursued a

theory that both defendants knew Michael and his drug business and, with an

unidentified third co-conspirator, targeted him to steal his money or drugs.

Delmont McKenney, a heroin dealer who often bought supply from Michael,

testified. He explained how he would order drugs from Michael and pick them

up from Frasier at 42 Taylor Street. He was familiar with Michael's friends,

including both defendants, and he testified that Mays often vacationed with

him and Michael and was present once when McKenney and Michael talked

about drugs. McKenney testified that Mays knew where Frasier hid his drug

stash.

Murray testified about what she saw that night. Investigating and

responding officers testified. Other police witnesses explained the processes

used to identify the cell phone exchanges and other forensic evidence

including blood stains.

The jury acquitted defendants of one burglary charge but found both

guilty on all other counts of the indictment. On June 26, 2018, the judge

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sentenced Davis and Mays to aggregate prison terms of 138 and 153 years,

respectively, each subject to a period of parole ineligibility under the No Early

Release Act, N.J.S.A. 2C:43-7.2, and imposed appropriate fines and penalties.

Both appealed. We address each defendant's arguments herein.

Mays raises the following arguments in his counseled brief:

I. DEFENDANT WAS DENIED A FAIR TRIAL BY

THE TRIAL COURT'S ADMISSION OF EVIDENCE

AND TESTIMONY REGARDING THE

UNCONFIRMED RESULTS OF THE

PHENOLPHTHALEIN TEST CONDUCTED ON A

STAIN FOUND ON DEFENDANT'S BOOT.

II. DEFENDANT WAS DENIED A FAIR TRIAL BY

THE TRIAL COURT'S ADMISSION OF EVIDENCE

WHERE ITS PROBATIVE VALUE WAS

SUBSTANTIALLY OUTWEIGHED BY ITS

UNFAIR PREJUDICE, WARRANTING REVERSAL

OF DEFENDANT'S CONVICTIONS. (Raised by co-

defendant)

III. THE TRIAL COURT ERRED BY ADMITTING

CERTAIN IRRELEVANT TEXT MESSAGES.

IV. THE TRIAL COURT ERRED BY ADMITTING

'EXPERT' TESTIMONY FROM DET. KOHRT

IDENTIFYING THE MAKE AND MODEL OF A

CERTAIN VEHICLE DEPICTED ON A VIDEO

RECORDING.

V. THE TRIAL COURT ERRED BY NOT

DECLARING A MISTRIAL OR DISMISSING

JUROR NUMBER [SEVEN] AFTER THAT JUROR

WAS INTIMIDATED BY AUDIENCE MEMBERS.

A-5915-17

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VI. DEFENDANT RECEIVED INEFFECTIVE

ASSISTANCE OF COUNSEL BECAUSE OF TRIAL

COUNSEL'S ELICITATION OF DEFENDANT'S

KNOWLEDGE OF MICHAEL DAVIS'S AND

LANCE FRASER'S DRUG DISTRIBUTION. (Not

raised below)

VII. THE TRIAL COURT ERRED BY ADMITTING

A FACEBOOK PHOTOGRAPH DEPICTING THE

DEFENDANTS AND VICTIM MICHAEL DAVIS

WHERE THE PHOTOGRAPH[] WAS NOT

PROPERLY AUTHENTICATED.

VIII. THE TRIAL COURT ERRED IN REFUSING

TO GIVE THE JURY A CRITICAL CHARGE

REGARDING CIRCUMSTANTIAL EVIDENCE.

(Raised by co-defendant)

IX. THE EFFECT OF THE CUMULATIVE

EVIDENTIARY ERRORS BY THE TRIAL COURT

DEPRIVED DEFENDANT OF A FAIR TRIAL AND

WARRANTS REVERSAL OF HIS CONVICTIONS.

(Not raised below)

X. THE JURY'S VERDICT WAS AGAINST THE

WEIGHT OF THE EVIDENCE.

XI. THE TRIAL COURT ERRED IN IMPOSING

CONSECUTIVE SENTENCES.

In a supplemental pro se brief Mays raised the following

additional argument:

POINT I

THE APPELLANT WILL SUBMIT THAT HIS DUE

PROCESS AND RIGHT TO A FAIR TRIAL WAS

VIOLATED UNDER THE FIFTH AND

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FOURTEENTH AMENDMENTS TO THE NEW

JERSEY AND UNITED STATES

CONSTITUTION[S] AND IN VIOLATION OF

APPELLANT'S SIXTH AMENDMENT [RIGHTS]

UNDER THE UNITED STATES CONSTITUTION

AND ART. 1, PARA. VI UNDER THE NEW

JERSEY CONSTITUTION WHEN THE TRIAL

COURT FAILED TO CONDUCT FURTHER VOIR

DIRE CONCERNING CONTINUOUS OUTSIDE

INFLUENCE AFTER A JUROR WAS

THREATENED.

Davis raised the following points in his counseled brief:

POINT I

IT WAS ERROR FOR THE COURT TO DENY THE

DEFENSE MOTION FOR MISTRIAL BASED UPON

THE INCIDENT INVOLVING THE

EMOTIONALLY DISTRAUGHT JUROR.

POINT II

THE DENIAL OF DEFENDANT'S MOTIONS FOR

MISTRIAL AND SEVERANCE WAS ERROR

WHICH DEPRIVED DEFENDANT OF A FAIR

TRIAL.

POINT III

THE TRIAL COURT'S FAILURE TO DECLARE A

HUNG JURY AFTER THE JURY STATED THEY

WERE UNABLE TO REACH A[] UNANIMOUS

VERDICT WAS ERROR AND DENIED

DEFENDANT A FAIR TRIAL.

POINT IV

IT WAS ERROR FOR THE COURT TO REFUSE TO

GRANT DEFENDANT'S REQUEST TO CHARGE

ON INFERENCES.

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POINT V

COMMENTS MADE BY THE PROSECUTOR

DURING HIS SUMMATION WERE PREJUDICIAL

AND DEPRIVED DEFENDANT [OF] A FAIR

TRIAL.

POINT VI

THERE WAS INSUFFICIENT RELIABLE

EVIDENCE TO SUPPORT THE DEFENDANT'S

CONVICTIONS BEYOND A REASONABLE

DOUBT.

POINT VII

THE AGGREGATE SENTENCE IMPOSED UPON

MR. DAVIS OF 117 YEARS WITH [THREE-AND-

A-HALF] YEARS OF PAROLE INELIGIBILITY

WAS EXCESSIVE AND SHOULD BE REDUCED.

POINT VIII

THE AGGREGATE OF ERRORS DENIED

DEFENDANT A FAIR TRIAL. (Not raised below)

Davis submitted the following points in a supplemental pro se brief:

POINT I

THE COURT ERRED BY ADMITTING CELL []

PHONE COMMUNICATIONS WITHOUT

PROPERLY AUTHENTICATING AND

IDENTIFYING THE DECLARANT PURSUANT TO

N.J.R.E. 901 [AND] N.J.R.E. 803(B)(5) THUS

DEPRIVING DEFENDANT TO HIS

CONSTITUTIONAL RIGHT TO DUE PROCESS

[AND] A FAIR TRIAL.

POINT II

THE COURT ERRED BY FAILING TO VOIR DIRE

THE JURY AND DECLARE A MISTRIAL

BECAUSE OF THE SERIES OF CONCERNING

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ISSUES EXPRESSED BY THE JURORS THUS

VIOLATING DEFENDANT'S CONSTITUTIONAL

RIGHT TO DUE PROCESS AND A FAIR TRIAL.

POINT III

THE TEXT MESSAGES SHOULD NEVER HAVE

BEEN ADMITTED BECAUSE THE PREJUDICE

WAS OUTWEIGHED BY THE PROBATIVE

VALUE AND SENDERS AND REC[EI]VERS OF

THE TEXT MESSAGES WERE NEVER

ESTABLISHED VIOLATING DEFENDANT[']S

RIGHT TO DUE PROCESS AND A FAIR TRIAL.

POINT IV

THE COURT ERRED IN FAILING TO GIVE

CAUTIONARY OR LIMITING INSTRUCTIONS

REGARDING THE LIMITED USE OF THE TEXT

MESSAGES VIOLATING DEFENDANT'S

CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

POINT V

THERE WAS INSUFFICIENT EVIDENCE TO

SUPPORT DEFENDANT'S CONVICTION

THEREFORE THIS DEFENDANT'S CONVICTION

MUST BE OVERTURNED.

POINT VI

THE CUMULATIVE ERRORS OF DEFENDANT'S

TRIAL CREATED A SETTING WHICH WAS

FUNDAMENTALLY UNFAIR THEREFORE

DENYING DEFENDANT'S CONSTITUTIONAL

RIGHT TO A FAIR TRIAL.

We first address trial-related arguments common to both defendants.

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I.

Both defendants argue that the court abused its discretion in failing to

declare a mistrial because of improper influence or intimidation after an

incident involving an emotionally distraught juror.

On a break during the last day of trial, a sheriff's officer informed the

court that a juror was upset, because she believed one of the audience members

had been "making eyes" at her. The court determined that a voir dire of at

least that juror, number seven, was required. The judge questioned her and the

other jurors at sidebar, inexplicably out of range of sensitive recording

equipment. The court denied defendants' motion to declare a mistrial.

We issued a sua sponte limited remand on March 23, 2021, because on

appeal both defendants asserted an abuse of the court's discretion in the court's

refusal to grant a mistrial, or to excuse a particular juror, on the grounds of

improper influence or intimidation after the incident involving the emotionally

distraught juror. Both defendants argue that the lack of sufficient record of the

jurors' comments deprived them of any opportunity for meaningful review on

appeal because the trial judge's summary of the record developed from the

jurors' responses was inadequate to permit meaningful appellate review of this

issue. Appellate counsel did not serve as trial counsel. We directed the trial

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judge and trial counsel to develop a comprehensive, reasonably accurate

reconstruction of the off-the-record interactions they had with the jurors on

April 26, 2018.

On May 7, 2021, the incarcerated defendants filed an emergent

application because the trial judge denied their request to be present for the

remand proceeding. We denied the application. On May 21, 2021, defendants

filed another emergent application, raising an issue with the judge's denial of

defendant's motion for a hearing to continue the reconstruction remand. We

denied the application as non-emergent because, as we were reviewing

defendants' application, we received the trial court's May 21, 2021 decision

and order with attachments constituting the statement of proceedings in lieu of

a transcript required by our March 23, 2021 remand order. Thus, we

considered it unnecessary to address arguments by way of motion because the

court's reconstruction was filed as part of the appellate record.

The parties were granted leave to file supplemental briefs to address the

remand findings and procedure. On June 6, 2021, defendants submitted

supplemental briefs and transcripts of the April 4, 2021, conference and the

May 5, 2021, reconstruction hearing. The State submitted a response on June

11, 2021.

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At that point, we reversed our previous determination and concluded that

in order to meet the requirements of Rule 2:5-3(f), it was necessary for the trial

judge to conduct a hearing with both defendants present.

If a verbatim record made of the

proceedings has been lost, destroyed or is

otherwise unavailable, the court . . . from

which the appeal was taken shall

supervise the reconstruction of the record.

The reconstruction may be in the form of

a statement of proceedings in lieu of a

transcript.

[R. 2:5-3(f).]

Here, defendants, who are incarcerated, were denied the opportunity to

participate in a hearing. We improvidently denied defendants' emergent

application regarding their presence. Thus, we corrected that oversight and

again remanded to the trial court for a hearing to reconstruct the record, with

defendants present, permitting any modifications or amplifications the trial

court wished to add to the decision and order with attachments constituting the

statement of proceedings in lieu of a transcript pursuant to Rule 2:5-1 within

ten days of the hearing.

We received the trial court's decision and order following the second

remand to reconstruct the record on September 9, 2021. Pursuant to our

instructions, the trial judge conducted a hearing with both defendants present

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with their trial counsel. The court submitted supplemental corrections to the

transcript and but did not change its prior conclusions.

In the first hearing for reconstruction of the record, the trial court

reviewed the submissions of all counsel and listened to the audio recording of

the trial on CourtSmart for the date in question. To the extent that counsel

agreed to what the transcript stated, the court included those portions of the

transcript along with the corrections. Where either counsel disputed what the

transcript stated, the disputed portion was identified as being inaccurate. The

court found the remaining portions of the record were either inaudible or

counsel were not able to agree to what was stated. Where counsel submitted

similar but not verbatim interpretations of the record, the trial judge

summarized those general statements in the corrections. The court did not

otherwise make any independent determination as to what was stated on the

record and, pursuant to Rule 2:5–3(f), submitted a statement of proceedings in

lieu of a transcript for those portions of the record which were partially audible

but not completely discernable. The court found:

On April 26, 2018, it was brought to this [c]ourt's

attention that, during the trial, an audience member

had been looking at one of the jurors. As such, this

[c]ourt addressed that juror individually at sidebar

outside of the presence of the other jurors and on the

record with all counsel present and the defendants

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listening at counsel table via headphones. That juror,

juror number seven, indicated that a female audience

member was staring at her during the trial. The juror

indicated that it made her feel uneasy and she told this

to another juror. She became physically upset. When

asked if the experience would affect her ability to sit

on the jury and render a true verdict in accordance

with the evidence in the case, the juror indicated that

it would not. She indicated that she could still truly

perform her duties as a juror notwithstanding the

incident.

Thereafter, each juror was brought to sidebar one at a

time in the same manner as juror number seven. Juror

number one was asked if, during the course of the

trial, she observed anything about any audience

members in the courtroom or in the hallway. She

indicated that she did not. She did state that she saw

juror number seven a little bit distraught and saw her

starting to cry. She was concerned for the juror, but

her observations of that juror would not have any

effect on her ability to render a fair verdict in the case

based on the evidence that she heard, nor would it

affect her ability to perform her duties as a juror.

Juror number three was asked if, during the trial, he

observed anything about any audience members that

he would want to bring to the attention of this [c]ourt.

He was not aware of anything, nor did he observe any

experience with any other juror. He indicated that he

did not observe anything that would affect his ability

to render a fair verdict in the case.

Juror number four was questioned whether or not she

saw anything about any audience members during the

trial. She indicated that she did not but, before the

trial, there was a female that was trying to talk to other

jurors. The juror remembered that the woman started

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talking about jurors disappearing, or something like

that. She indicated that the experience would not have

any effect on her ability to render a fair verdict in the

case based on the evidence.

Juror number five was questioned at sidebar and asked

if, during the trial or at any time, she observed

anything about any audience members that she thought

should be brought to the attention of this [c]ourt. She

indicated that she did not. She did indicate that she

saw juror number seven crying. She said that juror

number seven was upset because she felt that someone

was staring at her and she and the other jurors tried to

calm her down. When asked if there was anything

about what she observed that would affect her ability

to render a fair verdict, she indicated that it would not.

Juror number six was questioned at sidebar and was

asked if she observed anything about any audience

members during the trial that she thought this [c]ourt

should know about. She answered that she did not.

She also saw juror number seven crying but didn’t ask

why or what happened. When asked if anything that

she heard or saw would have any effect on her ability

to render a fair verdict in the case based on the

evidence, she indicated that it would not.

Juror number eight was questioned at sidebar. When

he was asked if he observed anything during the trial

having to do with any interaction with any audience

members, he indicated that he did not. He didn't

indicate that anything that he saw would affect his

ability to render a fair and true verdict based on the

evidence.

Juror number nine was questioned at side bar and

asked if she observed anything about any audience

members or if she had any interaction with any

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audience members. She indicated that on the first day

of jury selection, she had an interaction with someone

outside of the courtroom. She thought that the person

was outside in the parking lot on her phone and may

have been recording her, but she could not be sure.

She indicated that the experience that she had would

not have any effect on her ability to render a fair and

true verdict in the case based on the evidence.

Juror number ten was questioned at sidebar and asked

if there was anything that he observed about any

audience members or had any interaction with them

that this [c]ourt should be made aware of. He did

indicate that he observed people in the audience

looking at him. When asked how he felt about them

staring at him, he stated that he didn't really care. He

indicated that there wasn't anything that he saw or

heard or observed during the trial that would have any

effect on his ability to reach a fair and true verdict

based on the evidence in the case.

Juror number eleven was questioned at sidebar. She

was asked if she observed anything about any

interaction with any audience members that she

thought this [c]ourt should be made aware of. She did

indicate that juror number seven said that somebody

was whispering about her. She said that that made her

feel slightly uncomfortable. She said that there was

nothing that she heard or observed during the trial that

would affect her ability to reach a fair and true verdict

based on the evidence.

Juror number twelve was questioned at sidebar. She

was asked if there was anything during the course of

the trial that she observed regarding any interaction

with any audience members that she would want to

bring to this [c]ourt's attention. She said that she did

not. She did indicate something about some person

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making a recording; however, there was nothing that

she saw or observed that would affect her ability to

render a true and fair verdict based on the evidence.

Juror number thirteen was questioned at sidebar. She

was asked if she observed anything or had any

interaction with any audience members that she would

want this [c]ourt to be made aware of. She indicated

that she did not, but one day she was waiting for the

elevator and a woman walked up and was saying

something on her phone and then the juror just walked

away. She indicated that there were two ladies in the

audience who did stare at her, but it didn't faze her.

She did not observe or hear anything that would affect

her ability to render a fair and true verdict based on

the evidence.

Juror number fourteen was questioned at sidebar and

was asked if during the trial he made any observations

or had any interactions with any audience members.

He responded that there were none and that there was

nothing that he saw or heard during the course of the

trial that would affect his ability to render a fair and

true verdict based on the evidence.

Initially, both defendants disputed the court's conclusion on appeal, but

did not argue that the record was inaccurate. Davis asserted it was insufficient

that jurors believed themselves capable of impartiality, because the

circumstances permitted no reasonable assurance of that impartiality,

necessitating a mistrial. Mays argued that juror number seven's subjective

belief in her own ability to remain impartial should not have entered the court's

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consideration and asserts that the court should have at least excused her from

service.

He also contends that the sheriff's officers who reported the incident

should have been examined to inform the court's decision, and both defendants

add in their pro se briefs that the jurors should have been subjected to further

voir dire regarding the other incidents of potential intimidation that they had

revealed in their initial questioning. Both defendants argue that the lack of any

record of the jurors' comments deprived them of any opportunity for

meaningful review on appeal. We agreed with this assertion because the

appellate attorneys were not the trial attorneys and were then as similarly

disadvantaged as the court, which is why we ordered a reconstructed record.

After the second remand, we entertained supplemental briefs from the

parties. Davis and Mays asserted the same arguments previously raised but

now argue that the reconstruction is fundamentally flawed because gaps in the

transcript could not be corrected. Their argument misconstrues the remedy we

provided.

The absence of a verbatim record "raises a question concerning fairness

that must be addressed." State v. Casimono, 298 N.J. Super. 22, 26 (App. Div.

1997) (quoting State v. Izaguirre, 272 N.J. Super. 51 (App. Div. 1994)).

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Accordingly, under Rule 2:5-3(f), "[i]f a verbatim record made of the

proceedings has been lost, destroyed or is otherwise unavailable, the court or

agency from which the appeal was taken shall supervise the reconstruction of

the record." Id. at 25. When such a record is lost, the trial judge, as a matter

of due process, must reconstruct the record in a manner that "provides a

reasonable assurance of accuracy and completeness." Id. at 26.

Trial courts have some discretion in how they supervise the

reconstruction of a record, but that discretion is limited by the requirements of

due process. See id. In some cases, the reconstruction procedure has only

included the participation of the trial judge and counsel, involving the

exchange of trial notes maintained by the court and all counsel. See id. at 26.

However, in other cases, trial judges have allowed defendants to participate in

reconstruction proceedings. See, e.g., State v. Gaines, 147 N.J. Super. 84, 89

(App. Div. 1975).

In Gaines, the defendants appealed their convictions and sentences of

three to five years in state prison for carrying a firearm in a motor vehicle and

possessing a silencer. Id. at 87. After their appeal was filed, a transcript of

one trial day could not be obtained because the official court reporter's notes

were missing. Id. at 88. Accordingly, we remanded the matter to the trial

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25

judge for reconstruction of the record. In addition to the participation of

counsel, the judge allowed the defendants an opportunity to contribute their

recollection of the testimony in open court. Id. at 88-89. The judge

considered the statements of the attorneys and the parties, and his own

recollection of the proceedings when recreating the record. Id. at 89.

In Casimono, the trial judge used an inappropriate method because there

was no input in the reconstruction of the record from either attorney. 298 N.J.

Super. at 25. Further, this court held that, as a matter of due process, "[a]t a

minimum . . . the prosecutor and defense counsel must participate, the

defendant must have an opportunity to attend the proceeding designed to

resolve any differences, and the trial judge must settle the record on notice to

all participants." See id. at 26 (emphasis added). The court ultimately

remanded the matter for proper reconstruction because it had no reasonable

assurance of the accuracy or completeness of the record as required by due

process. Ibid.

Rule 2:5-3(f) governs reconstructing the record. 2 The reconstruction

may be a statement of proceedings in lieu of a transcript. R. 2:5-3(f). We

2

See R. 2:5-3(f).

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26

have explained that "it becomes the duty of the trial court as a matter of due

process entitlement of the parties to reconstruct the record in a manner that,

considering the actual circumstances, provides reasonable assurances of

accuracy and completeness." Izaguirre, 272 N.J. Super. at 57. To meet the

reasonable assurances of completeness and accuracy required by due process,

we remanded this matter to the trial court and ordered that the record be

reconstructed with defendants present.

If no verbatim record was made of the proceedings

before the court or agency from which the appeal is

taken, the appellant shall, within [fourteen] days of the

filing of the notice of appeal, serve on the respondent

a statement of the evidence and proceedings prepared

from the best available sources, including appellant's

recollection. The respondent may, within [fourteen]

days after such service, serve upon the appellant any

objections or proposed amendments thereto. The

appellant shall thereupon forthwith file the statement

and any objections or proposed amendments with the

court or agency from which the appeal is taken for

settlement and within [fourteen] days after the filing

of the same the court or agency shall settle the

statement of the proceedings and file it with the clerk

thereof, who shall promptly provide the parties with a

copy. If a verbatim record made of the proceedings

has been lost, destroyed or is otherwise unavailable,

the court or agency from which the appeal was taken

shall supervise the reconstruction of the record. The

reconstruction may be in the form of a statement of

proceedings in lieu of a transcript.

[Ibid.]

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Under Rule 2:5-3(f), the process by which a permissible reconstruction

of the record is forged is a collaborative effort, which requires the participation

of counsel and the trial judge. Further, for the purposes of determining

whether a lost record has infringed upon due process, this court has found that

there is no per se difference between situations in which only portions of the

record need to be reconstructed and where the entire trial transcript has been

lost. State v. Bishop, N.J. Super. 335, 347 (App. Div. 2002) (citing Izaguirre,

272 N.J. Super. at 56). In addition, when only portions of a trial record are

missing, a duty is placed upon the defendant to show an exercise of due

diligence to correct the deficiency in the record and that the defendant was

actually prejudiced by the record's deficiency. Bishop, N.J. Super. at 347

(citing State v. Paduani, 307 N.J. Super. 134, 142 (App. Div. 1998)). General

allegations of due process violations are not sufficient to support a

constitutional violation from an inadequate trial transcript or the record.

Moreover, Rule 2:5-3(f) does not require the reconstruction of the transcript as

defendants suggest.

Here, the trial judge reconstructed the record in a manner that provides a

reasonable assurance of completeness and accuracy to satisfy due process.

Gaines, 147 N.J. Super. at 89. Unlike the court in Casimono, the judge

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originally and continually included input from counsel. The judge held a

second hearing with both defendants and their trial attorneys. All counsel had

the opportunity before the hearing to review prior documents and recordings to

determine if the record needed additions, amendments, or deletions. At the

hearing, the judge gave all parties the opportunity to be heard on the issue of

the reconstruction of the record. Thus, the judge concluded that the September

8, 2021, decision and order and supplemental correction to the transcript, along

with the prior order, constituted a comprehensive, reasonably accurate

reconstruction of the record of the court's sidebar discussions with the jurors

and all trial counsel on April 26, 2018.

Furthermore, integral to a criminal defendant's state and federal

constitutional right to trial by an impartial jury, State v. R.D., 169 N.J. 551,

557 (2001), and more broadly to a fair trial, is the requirement that the jury

decide the case according to the evidence and arguments presented in court

rather than based on outside influences. When a juror may have been exposed

to extraneous influences or information during a trial, the court must act

swiftly to investigate any factors impinging on the juror's impartiality, R.D.,

169 N.J. at 557-58, and ascertain whether he or she remains capable of

fulfilling his or her duty in an impartial and unbiased manner.

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The court must "consider the gravity of the extraneous information [or

influence] in relation to the case, the demeanor and credibility of the juror or

jurors who were exposed to [it], and the overall impact of the matter on the

fairness of the proceedings," R.D., 169 N.J. at 558, and should rely for that

inquiry on its "own objective evaluation of the potential for prejudice rather

than on the jurors' subjective evaluation of their own impartiality," State v.

Scherzer, 301 N.J. Super. 363, 487 (App. Div. 1997).

In our view, the judge's reconstruction of the record represents an

adequate summary of the jurors' responses to permit an appropriate review.

We discern no reason to question the judge's recitation of his findings.

The judge did not merely accept the jurors at their word that they could

remain impartial but arrived at his conclusion based on his observation of their

demeanor and consideration of their responses, including that they had

experienced staring from audience members on either side of the aisle, and that

this experience sometimes made them feel uncomfortable but not intimidated.

As for the requests for further voir dire, defendants do not explain what could

have been accomplished by additional inquiry into the other incidents once the

jurors had already recounted them. Nor does Mays explain what the sheriff's

officers might have offered other than their observation of juror number

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seven's demeanor and emotional state, which the court and counsel observed

first-hand. Hence, the court's decision to deny a mistrial based on this inquiry

did not constitute an abuse of discretion, and defendants' arguments to the

contrary do not present grounds for reversal.

II.

Both defendants argue that the court abused its discretion when it

admitted the text messages. Mays also asserts error for the admission of the

blood stain on his boot, the emergency 911 call, the body camera footage of

the crime scene, a detective's testimony identifying the vehicle in surveillance

footage as an Infiniti, and a photograph of defendants with the victim. We

consider each in turn.

Both defendants challenge the admission of the text messages sent

among themselves and Michael pursuant to a series of hearsay exceptions. We

consider the issues under an abuse of discretion standard. State v. Scharf, 225

N.J. 547, 569 (2016).

The message sent from the 914 number to Michael stating, "on the road,

hour," and the series of messages between the 914 and 702 numbers, were

offered variously as: present sense impressions, statements as to state of mind,

party admissions, and co-conspirator declarations. The "present sense

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31

impression" exception permits admission of any "statement describing or

explaining an event or condition, made while or immediately after the

declarant perceived it and without opportunity to deliberate or fabricate."

N.J.R.E. 803(c)(1). The timing of the statement is crucial and must be

genuinely contemporaneous to the event—within seconds rather than

minutes—to warrant its admission. See State ex rel. J.A., 195 N.J. 324, 339

(2008).

Here, the court found the messages were relevant to establish Mays's

familiarity with Michael and defendants' planning of the crimes. The first

message, purportedly between Mays and Michael, qualified as a present sense

impression, and that the messages comprising the longer exchange between

defendants could fit within any of the above exceptions.

On appeal, both defendants challenge admission of the text messages

arguing the State did not introduce any direct evidence establishing that they

were the ones using the phones on the night of the murders. They emphasize

that admission of this evidence was highly prejudicial, and the court should

have at least given an appropriate limiting instruction regarding its use. We

disagree.

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Evidence demonstrated Davis bought the phones and pre-paid cards

associated with the numbers involved in the exchange, and that the phone with

the 702 number traveled along the same route as the Yukon, which Davis's

girlfriend testified was his. Similarly, the phone with the 914 number tracked

the same path as the Infiniti, which Murray recalled having seen Mays driving

near Michael's home the night of the murder, and which Mays's girlfriend

confirmed he was using. As for any limiting instruction conditioning the jury's

consideration of the messages on a conclusion that defendants were the

declarants, defendants never requested such instruction(s), and the messages

were admissible at least as present sense impressions regardless of the identity

of the declarants. N.J.R.E. 803(c)(1).

We reject Mays's separate argument that there was no evidence the text

to Michael was a present sense impression. The message "on the road, hour"

plainly communicates a contemporaneous perception of being on the road, and

the arrival estimate of an hour makes no sense unless conveyed immediately.

The court was well within its discretion to conclude that it qualified as a

present sense impression pursuant to N.J.R.E. 803(c)(1).

Both defendants next argue that the court abused its discretion by

rejecting Davis's request to admonish the jury against drawing inferences from

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33

other inferences in reaching its verdict. The court instructed the jury with the

model charges for circumstantial evidence:

Now, as instructed at the beginning of this case,

evidence may be either direct or circumstantial.

Direct evidence means evidence that directly proves a

fact without an inference and which in itself if true

conclusively establishes that fact.

On the other hand, circumstantial evidence means

evidence that proves a fact from which an inference of

the existence of another fact may be drawn. An

inference is a deduction of fact that may logically and

reasonably be drawn from another fact or group of

facts established by the evidence.

Whether or not inferences should be drawn is for you

to decide using your own common sense, knowledge,

and everyday experience. Ask yourselves if it is

probable, logical, reasonable.

Now, it's not necessary that all the facts be proven by

direct evidence. They may be proven by direct

evidence, circumstantial evidence, or by a

combination of direct and circumstantial evidence.

Both direct and circumstantial evidence are acceptable

as a means of proof.

In many cases, circumstantial evidence may even be

more certain, more satisfying, and more persuasive

than direct evidence. In any event, both direct and

circumstantial evidence should be scrutinized and

evaluated carefully.

A verdict of guilty may be based on direct evidence

alone, circumstantial evidence alone, or a combination

of direct evidence and circumstantial evidence

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34

provided of course that it convinces you of a

defendant's guilt beyond a reasonable doubt.

The reverse is also true. The defendants may be found

not guilty by reason of direct evidence, circumstantial

evidence, a combination of the two, or a lack of

evidence if it raises in your mind a reasonable doubt

as to the defendant's guilt.

If circumstantial . . . evidence gives rise to a

reasonable doubt in your minds as to the defendant[]s'

guilt then the defendants must be found not guilty.

See Model Jury Charges (Criminal), "Circumstantial Evidence" (rev. Jan. 11,

1993).

Defendants requested the court add the admonition: "[a]lthough you can

draw more than one inference from a fact or group of facts, you cannot draw

an inference from an inference." The court found no justification for a

departure from the model charges regarding circumstantial evidence and that

the added language might serve only to confuse the jury as to which inferences

were permissible and which were not.

On appeal, Davis asks us to rely on United States v. Arras, 373 F.3d

1071, 1073 (10th Cir. 2004), and reiterates that his possession of the Yukon

and purchase of the cell phones could have led the jury to unfairly convict him

based on impermissibly stacked inferences. Arras does not support Davis's

assertion that the additional language is necessary, but merely reiterates what

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35

is inherent in our model charge on circumstantial evidence: the sufficiency of

inferential evidence requires the jury to assess whether it is reasonable and

logical.

Mays adds that other courts have strictly forbidden drawing inferences

from other inferences and argues that the jury must have reached its verdict

based on a "number" of unspecified inferences impermissibly drawn from

evidence related to the vehicle's travel, the substance of the text messages, the

unconfirmed blood stain on Mays's boot, and Mays's purported visit to

Michael's apartment the day before the murders.

Based on our review, a reasonable juror directed to follow the model

jury charge on circumstantial evidence could directly infer from credible

testimony that defendant had possession of the Yukon during the week

surrounding the crimes and that he drove it on the night at issue. Moreover,

we disagree that the other inferences challenged are so tenuous as to rest

exclusively on other inferences. Nor have defendants lodged any other

challenge to the accuracy or sufficiency of the whole charge. Consequently,

we discern no error in the court's rejection of Davis's charge request, and

defendants' arguments to the contrary present no grounds for reversal.

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36

III.

Both defendants challenge the sufficiency of the evidence in the record

to support their convictions—Davis argues that the court erred in denying his

motion for acquittal at the conclusion of the State's case, and Mays argues that

the verdict was against the weight of the evidence.

On a motion for judgment of acquittal pursuant to Rule 3:18-1, the court

must determine:

[W]hether, viewing the State's evidence in

its entirety, be that evidence direct or

circumstantial, and giving the State the

benefit of all its favorable testimony as

well as all of the favorable inferences

which reasonably could be drawn

therefrom, a reasonable jury could find

guilt . . . beyond a reasonable doubt.

[State v. Wilder, 193 N.J. 398, 406 (2008)

(quoting State v. Reyes, 50 N.J. 454, 459

(1967)).]

The same standard applies on appeal. State v. Josephs, 174 N.J. 44, 81 (2002).

Addressing Davis's motion for such relief, the court noted from the

outset that this was "clearly a circumstantial case," recounting the evidence

linking defendants to the crimes, including GPS tracking data, text messages

between the cell phones purchased by Davis, and the blood-stained glass

fragment found in the Yukon. The court rejected this argument and concluded

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37

that the record, while not overwhelming, sufficed to permit a jury to find guilt

beyond a reasonable doubt.

Davis argues on appeal that the State's case was purely circumstantial

and required stacking inferences to reach a determination of guilt and

consisted of unreliable evidence. In his pro se brief he argues the State never

presented any competent evidence establishing that the phones he purchased

were the ones used in connection with the crimes, that the GPS and tollbooth

evidence never actually tracked the Yukon to his home in Egg Harbor

Township, and that his girlfriend's testimony to the effect that he had

possession of the vehicle was unreliable, because she did not live with him,

was aware that others had used the vehicle, and did not specifically speak with

him about whether anyone else had been driving it around the time the crimes

were committed. Moreover, he never denied that he knew Michael, but asserts

that their relationship should have had no bearing on his guilt.

Proving a conspiracy through circumstantial evidence is not unusual,

State v. Samuels, 189 N.J. 236, 246 (2007). Among other things, evidence in

the record showed Davis bought the phones engaged in the text exchange, and

a glass fragment stained with Frasier's blood was recovered from the Yukon

his girlfriend testified was his.

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38

Mays, like Davis, takes issue with the purely circumstantial nature of the

case and argues that the Infiniti was not registered to him and asserts that no

credible eyewitness saw him driving it the night of the murders. He contends

Murray's testimony was unreliable, the stain on his boot was neither confirmed

to be blood nor ever subjected to DNA analysis linking it to any of the victims,

and no one ever testified to having communicated with Mays at the 914

number used in the text exchange leading up to the murders. He reiterates that

the purported blood stain and other crucial pieces of evidence—the detective's

testimony regarding the make and model of the vehicle in the surveillance

video, the text messages, the 911 call, and body camera footage—had been

wrongfully admitted.

But all evidence was appropriately admitted, and, although the purported

blood stain found on the instep of his boot had limited probative value, which

we address below, other evidence included a blood stain on Michael's

basement steps impressed with a footprint. Evidence showed the phone

associated with the 914 number was tracked along the same route as the

Infiniti that Mays's girlfriend testified he was using, and Murray saw Mays

driving an Infiniti near Michael's home that night. Whatever the merits of

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Mays's challenge to Murray's testimony, it was the jury's prerogative to

evaluate her credibility. State v. Coleman, 46 N.J. 16, 43 (1965).

Based on our review, the record was sufficient to permit a reasonable

jury to find defendants guilty beyond a reasonable doubt.

IV.

Mays alone raises other arguments that we address herein. He contends

that the court abused its discretion by admitting evidence of the purported

blood stain found on his boot at his arrest two weeks after the murders, arguing

its probative value was outweighed by the risk of prejudice.

The State introduced testimony from a serologist and DNA expert that

the stain yielded a presumptive positive result for blood on the Kastle-Meyer—

or phenolphthalein—test, along with an explanation of the significance and

limitation value of that result. Such tests may not be admitted unless "shown

to be generally accepted, within the relevant scientific community, to be

reliable." State v. Chun, 194 N.J. 54, 91 (2008). Notwithstanding the

presumptive positive test result, the expert cautioned that the test could yield a

false positive and could not detect whether the substance was even from a

human, and that the sample was not sufficient, whether due to deterioration or

cleaning, to conduct any further analysis to confirm the presence of blood or

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obtain any DNA evidence. Mays did not challenge to the reliability of the test

but objected on the ground that the prejudice posed by the presence of an

"alleged" blood stain far outweighed its negligible probative value.

Relying on authority dealing with admissibility of blood type test results,

the court reasoned that, although the single stain was certainly not conclusive

evidence of guilt, particularly given that it could not be linked to any of the

victims, the jury was entitled to consider it in the full context of the State's

case, including photographs of blood at the crime scene and testimony about

blood on the glass fragment found in the Yukon, to evaluate whether defendant

was guilty beyond a reasonable doubt. The court allowed the evidence but

cautioned that it would be up to the jury to assign that evidence an appropriate

weight.

On appeal, Mays argues this evidence had minimal probative value,

because the stain was never confirmed to be blood or that it came from any of

the three victims and the jury could only speculate as to the identity of the

substance or its source, rendering any consequent inference of guilt improper.

Mays further faults the court for its reliance on clearly distinguishable case law

regarding blood type tests rather than State v. Pittman, 419 N.J. Super. 584,

591-95 (App. Div. 2011), which dealt specifically with the Kastle-Meyer test

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and rejected its admission in part based on the lack of any expert evidence in

the record as to its reliability. He now challenges for the first time the State's

failure to establish the scientific reliability of the test and the court's failure to

give an appropriate limiting instruction as to the jury's consideration of this

evidence.

We agree that the presumptive positive result had limited probative

value. The sample was not conducive to further analysis, either to confirm that

it was blood or even human, much less that it belonged to any of the victims.

But the experts who testified to the test results were candid about those

limitations, mitigating any potential prejudice that could have been presented

by admission.

To the extent the admission of this evidence was error, we consider it

harmless and in the context of the entire trial not "'clearly capable of producing

an unjust result.'" State v. J.R., 227 N.J. 393, 417 (2017) (quoting R. 2:10-2).

V.

Mays next contends the court abused its discretion in admitting evidence

of Riley's emergency 911 call and body camera footage from the crime scene,

in which Riley appeared. Davis's counsel, not Mays's, objected to admission

of the 911 call at trial, as it served no purpose other than to evoke sympathy

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from the jury. The court confirmed with counsel that there was no dispute as

to the recording's authenticity and otherwise overruled the objection without

elaboration. Riley became emotional during the playback of the recording,

requiring a brief pause in the proceedings, but ultimately explained her calm

demeanor on the recording as the result of positive thinking, hoping that

nothing had happened to her father.

Later, when the State sought to introduce body camera footage depicting

the crime scene as it was first found, the defense requested that the footage be

redacted to eliminate Riley's emotional reaction, arguing that the brief portion

of the video was highly prejudicial and devoid of probative value.

Based on its review of the video recording, the court found it was clearly

relevant, showing the condition of the crime scene upon the arrival of first

responders. As for the risk of prejudice, the court rejected the argument that

the reaction captured on video would have any greater effect on the jury than

the emotional reaction it had already witnessed when Riley testified. The

court was therefore within its discretion to admit both the 911 recording and

crime scene footage over objections that their prejudice outweighed their

probative value, and Mays's arguments to the contrary offer no grounds for

reversal.

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Mays next challenges the admission of a detective's testimony describing

a vehicle, purportedly Mays's Infiniti, shown in video footage, asserting that

this testimony was akin to expert testimony and should not have been given by

a lay witness. We reject this argument.

The detective narrated black-and-white surveillance footage from Van

Ness Court and identified the make and model of the vehicle shown based on

his experience and training as a police officer. Mays's counsel objected on

grounds that this testimony would invade the ultimate province of the jury to

find whether the vehicle in the footage matched the one Mays was allegedly

driving, that the detective's opinion as to this poor-quality footage was tainted

by his investigation, and, in any event, that he was not qualified as an expert.

The same argument was squarely addressed in State v. LaBrutto, 114

N.J. 187, 198-202 (1989), where the Supreme Court concluded that an officer

could testify based on his observations and in light of his training and

experience, when the matter did not "involve such complicated technical and

scientific evidence that only a qualified reconstruction expert could rationally

form an opinion about the point of impact," and that the officer adequately

apprised the jury of the basis for his opinion.

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44

Mays next challenges admission of a photograph depicting defendants

and Michael, arguing it was never properly authenticated. A trial court

exercises discretion in admission of such evidence, and its ultimate decision

will be reviewed on appeal only for an abuse of that discretion. State v.

Hockett, 443 N.J. Super. 605, 615 (App. Div. 2016).

The photograph at issue here was a digital image downloaded by

McKenney from a friend's Facebook page and depicted nine people in a

nightclub. McKenney was not present for the photograph and did not know

who the photographer was or when it was taken, but he believed it was taken

inside the Onyx nightclub in Philadelphia, based on the caption to the image

and his familiarity with the appearance of that club's interior. He identified

both defendants and Michael among the group of people shown in the picture.

The court found the testimony sufficient to authenticate the photograph.

McKenney knew the individuals pictured and that the image accurately

reflected them. His uncertainty as to the scene, timing, or the photographer

remained pertinent to his credibility, but not to the photograph's admissibility.

Moreover, the photograph was plainly relevant to the State's case that this was

not a stranger-on-stranger crime, as it tended to show that the defendants and

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45

the victim knew each other. Based on our review, the admission of the

photograph posed no harm that would justify reversal.

VI.

We now address Davis's arguments. He contends the court should have

granted his motion for a mistrial and severance after the State, followed by

Mays's counsel, impermissibly elicited testimony that Davis asserts showed

Mays was participating in a drug distribution enterprise with Michael and

Frasier.

A mistrial is an extreme remedy that "imposes enormous costs on our

judicial system." State v. Jenkins, 182 N.J. 112, 124 (2004). Consequently, it

should be granted only with the "greatest caution," State v. Witte, 13 N.J. 598,

611 (1953), and only where required "to prevent an obvious failure of justice,"

State v. Harvey, 151 N.J. 117, 205 (1997).

A joint trial of defendants alleged to have participated in the same

criminal act or transaction is preferable, because it serves the purpose of

"judicial economy, avoids inconsistent verdicts, and allows for a 'more

accurate assessment of relative culpability.'" State v. Weaver, 219 N.J. 131,

157 (2014) (quoting State v. Brown, 118 N.J. 595, 605 (1990)). Although all

joint trials present the inherent "danger of guilt by association . . . , this peril

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can generally be defeated by forceful instructions to the jury to consider each

defendant separately." State v. Scioscia, 200 N.J. Super. 28, 43 (App. Div.

1985) (citation omitted).

Severance is sometimes warranted, and a court should "'balance the

potential prejudice to defendant's due process rights against the State's interest

in judicial efficiency,'" and may grant that relief where, as Davis argues, the

"defenses are antagonistic and mutually exclusive or irreconcilable," rendering

separate trials necessary. Brown, 118 N.J. at 605 (quoting State v. Coleman,

46 N.J. 16, 24 (1965)). We review such a determination under an abuse of

discretion standard. State v. Sanchez, 143 N.J. 273, 283 (1996). We find none

here.

At issue is proffered testimony from McKenney that Mays was involved

in a drug distribution scheme with Michael. Under a theory that the crime was

committed by someone familiar with Michael's drug operation, this testimony

highlighted issues of motive and opportunity. Defendants objected. Mays

contended this was unduly prejudicial, and Davis asserted that admission of

the evidence, which implicated only Mays, would require severance. The

court agreed and denied the State's motion to introduce this evidence.

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At trial, when McKenney began testifying about how he would place

orders for heroin, Davis's counsel objected, citing the earlier ruling, asserting

the State was attempting to introduce the forbidden evidence of Mays's drug

dealing through innuendo and that this course of action would constitute

grounds for a mistrial or at least a curative instruction that the evidence was

admissible only against Mays. After some discussion, the court narrowly

permitted McKenney to testify that Mays was present for a conversation

between McKenney and Michael regarding drugs but could not implicate Mays

himself in any criminality in violation of its prior ruling. The court denied the

motion for a mistrial and declined to issue any instruction until it heard

McKenney's testimony.

McKenney then testified about a conversation he had with Michael about

drugs while Mays was present during a trip to Myrtle Beach, South Carolina.

On cross-examination by Mays's counsel, McKenney further confirmed that

Mays knew where Frasier stashed drugs. Davis's counsel renewed his

objection and prior motion in all respects, but the court denied any immediate

relief, noting that if, after the close of the evidence, counsel believed a limiting

instruction remained warranted, it would entertain any such instruction at the

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charge conference. Davis's counsel renewed the request again the following

day to the same result.

Davis argues the clear import of McKenney's testimony was that Mays

was complicit in Michael's drug business; yet, the record showed no evidenc e

connecting Davis to that enterprise, presenting a conflict. Davis had relied on

earlier rulings that defendants' involvement in drug dealing would be unduly

prejudicial and therefore inadmissible in declining to move for severance.

Once that ruling was violated, the need for severance manifested and required

a mistrial or, at the very least, a limiting instruction that the evidence of drug

dealing was admissible only against Mays and the court's failure to take either

remedial measure requires reversal. We disagree.

Based on our review, McKenney's testimony did not violate the earlier

ruling, which specifically excluded evidence purporting to establish

defendants' drug dealing pursuant to N.J.R.E. 404(b). Although McKenney

confirmed Mays's awareness that Michael was a drug dealer and his knowledge

of the location of Frasier's stash, McKenney did not implicate either defendant

as a participant in Michael's business or as otherwise engaged in drug

distribution, which would present the undue prejudice the ruling was meant to

address.

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Nor did the fact that this evidence pertained only to Mays reflect such

prejudice to Davis or create such a conflict as to require severance. Brown,

118 N.J. at 605. Defendants were charged with a conspiracy in which each

served different roles, to which overlapping, but not completely correspondent

sets of evidence were relevant. We have said "a claim of prejudice grounded

upon the prospect that some evidence will be admissible only as to one

defendant [or another] does not require severance as of right." State v. Hall,

55 N.J. Super. 441, 449 (App. Div. 1959). Moreover, although the court

declined to issue an immediate limiting instruction, it later charged the jury

that it was to consider the evidence against each defendant separately,

Scioscia, 200 N.J. Super. at 43, and the jury is presumed to have followed that

instruction, State v. Burns, 192 N.J. 312, 335 (2007).

Davis also argues that certain of the prosecutor's remarks during

summation were so egregiously prejudicial as to deprive him of a fair trial.

"'[N]ot every deviation from the legal prescriptions governing

prosecutorial conduct' requires reversal." State v. Jackson, 211 N.J. 394, 408-

09 (2012) (quoting State v. Williams, 113 N.J. 393, 452 (1988)). In evaluating

the remarks, we consider "(1) whether defense counsel made timely and proper

objections to the improper remarks; (2) whether the remarks were withdrawn

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promptly; and (3) whether the court ordered the remarks stricken from the

record and instructed the jury to disregard them." Smith, 167 N.J. at 182.

Davis specifically takes issue with the following comments. First, he

believes the prosecutor disparaged both defense attorneys by suggesting at the

outset of the prosecutor's summation that their closing arguments had been

meant to discourage the jurors from reaching a verdict based on a fair

evaluation of the evidence:

They're trying to scare you, so that you can't do your

duty to make a decision in this case, and that decision

is supposed to be on the facts and the evidence.

Davis further faults the prosecutor for openly surmising about

accomplice liability, without adequate support, that all the perpetrators wore

gloves:

But what I want you to think about is as the killers are

putting these gloves on, they're not — look, they don't

— they don't just slip right on. As the killers are

putting latex gloves on, going to a house what's going

through their heads? And it's one and only one thing,

everyone in the house is going to die, and there's not

going to be any witnesses.

So, whether you are actually one of the people that did

it, that shot or you're the inside man who let in the

other two guys or you[']r[e] holding Lance down as

someone else is stabbing him, everyone is all in.

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Lastly, Davis complains that the prosecutor closed this line of argument

by explicitly stating a belief in defendants' guilt:

There's no oh, I kind of sort of participated in this. . . .

This was planned for weeks, the phones were bought

weeks prior. Lavelle started going to Lance's house

weeks prior, and start[ed] calling Mike weeks prior to

set him up. Everyone's in. Jimmy, Lavelle and the

unidentified person are all guilty of murder as to each

of those victims.

Davis's counsel challenged all three remarks at the charge conference.

He urged the judge to instruct the jury to disregard the prosecutor's expressed

belief in defendant's guilt and accusation that defense counsels were trying to

scare them. As for the remark about the gloves and its implication for the lack

of fingerprint evidence, counsel believed the evidence—a single piece of a

glove stuck to duct tape—did not warrant an inference that more than one

perpetrator had worn them, and asked the judge to remind jurors, with specific

reference to that statement, that their own recollection of the evidence should

control.

The judge agreed that the prosecutor's expression of a belief in Davis's

guilt required a curative instruction. But he believed the prosecutor's argument

about the gloves was a fair comment on the evidence and was therefore

adequately addressed by the standard charge that the jury's recollection of the

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evidence should control. As for the fleeting remark about scaring the jury, the

judge viewed it, and considered in context, as a fair response to defense

counsel's own highly emotional summation.

Davis acknowledges on appeal that the court gave the requested curative

instruction as to the expression of guilt, yet suggests he was still prejudiced by

it. He further asserts, with little elaboration, that the prosecutor's remark

purportedly disparaging defense counsel was improper but makes no specific

argument as to either the propriety of or prejudice from the comment about the

gloves, except by reference to his objection below.

Davis was granted the curative instruction he sought, and there is no

reason to presume that the jury failed to follow its instructions to disregard the

challenged comment. State v. Winter, 96 N.J. 640, 649 (1984). The court was

correct, moreover, that the remark about the gloves was a fair comment on the

evidence. Given that a piece of a glove was undisputedly found and that

fingerprints were not, a reasonable juror could infer that more than one

perpetrator wore the gloves.

The prosecutor's comment about defense counsel arguably suggested that

the defense intended to discourage the jury from reaching a verdict based on a

fair evaluation of the evidence. The comment was fleeting, made in the course

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of an argument otherwise focused on the evidence in the record, and directly

responsive to exceedingly dramatic appeals made by the defense as to the

weight of the jury's decision. We discern no reasonable likelihood it

substantially prejudiced Davis's right to have the jury undertake a fair

evaluation of his defense.

Davis next contends that the court abused its discretion in failing to

declare a hung jury. We disagree.

When the jury, as here, declares an impasse, a trial court should

ordinarily "inquire . . . whether further deliberation will likely result in a

verdict." State v. Valenzuela, 136 N.J. 458, 469 (1994). The court should

declare a mistrial only if, considering the "length and complexity of trial and

the quality and duration of the jury's deliberations," State v. Czachor, 82 N.J.

392, 407 (1980), it concludes that the "difference of opinion between members

of the jury is clearly intractable," Valenzuela, 136 N.J. at 469. Otherwise, the

court may instruct that the jury continue its deliberations. State v. Ross, 218

N.J. 130, 144-45 (2014).

The jury submitted a note toward the end of its second day of

deliberations, informing the court that it could not reach a unanimous verdict.

The court instructed:

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I received your note which I've marked as court

exhibit [eighteen] which reads, "We cannot reach a

verdict unanimously."

This has been a very long trial. It lasted several

weeks. There's a significant amount of evidence for

you to consider. You started your deliberations

yesterday morning. There was a period of time

yesterday where some play back or read back was

requested. And there was time spent preparing that

and then playing it back for you.

Today, we did not start until this afternoon after about

1:00 o'clock and it's not 4:00 o'clock. So, you have

not yet been deliberating long enough for me to

dismiss you from this case.

So, what I am going to do is I understand it's been a

long time and you might be tired. So, I will dismiss

you for today. But, I am going to bring you back

Monday morning at 9:30 to continue your

deliberations.

So, you have the weekend to rest up and be ready

Monday morning to continue.

Just before deliberations resumed the following week, Davis's counsel

objected to the instruction, arguing that its language unfairly undercut the

defense's position that there was a lack of evidence in the record connecting

defendants to the crimes. Counsel initially proposed that the court give either

a modified Allen3 charge or an instruction that the jury resume deliberations

3

Allen v. United States, 164 U.S. 492 (1896).

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"in order . . . to determine whether [it was] or [was] not able to reach

unanimous verdicts," but the court rejected the first as premature and both as

irrelevant to counsel's narrow objection.

Counsel then requested that the court at least read the jury language from

the model charge as to the quality of evidence, and the court complied,

instructing the jury:

As I told you on Friday given the length of the trial

I've brought you back here today to continue your

deliberations.

I made reference to a number of exhibits that were in

evidence that you have with you in the courtroom.

But it's the quality of the evidence and [not] simply

the number of witnesses or exhibits that control.

So . . . I'm going to ask you to return into the jury

deliberation room, continue your deliberations, and we

will await further note from you.

On appeal, Davis argues the court erred by informing the jury that it had

not yet been deliberating long enough to permit dismissal without at least

inquiring whether further deliberations would likely be fruitful and that the

court effectively communicated through the above instructions that a hung jury

would not be acceptable, thereby compelling further deliberation, coercing the

resulting agreement, and depriving him of a fair trial. We disagree.

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Both instructions advised that the jury had not yet deliberated long

enough. There was no implication that a hung jury was unacceptable if

sufficient further deliberations failed to break the impasse. Although a court,

to be sure, should ordinarily make such inquiry, it need not always do so,

particularly where, as here, deliberations have been relatively brief. State v.

Figueroa, 190 N.J. 219, 239-40 (2007).

VII.

Lastly, both defendants contend that their sentences were excessive. A

trial court exercises considerable discretion in sentencing. State v. Dalziel,

182 N.J. 494, 500 (2005). Its decision will not be disturbed so long as it

follows the applicable statutory guidelines, identifies and weighs all applicable

aggravating and mitigating factors, and finds the support of sufficient credible

evidence in the record. State v. Natale, 184 N.J. 458, 489 (2005). Otherwise,

a sentence will be reversed only if it "shocks the judicial conscience." State v.

O'Donnell, 117 N.J. 210, 215-16 (1989).

With respect to Davis, the court noted he had two indictable convictions:

one in December 2003 for second-degree conspiracy to commit aggravated

assault, and the other in September 2009 for third-degree aggravated assault.

It found the first aggravating factor, the nature and circumstances of the

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offense, N.J.S.A. 2C:44-1(a)(1), because, apart from the murders, Frasier had

been bound and sustained multiple wounds which suggested he had been

tortured prior to being fatally shot. It found the third aggravating factor, the

risk of reoffense, N.J.S.A. 2C:44-1(a)(3), noting that his prior convictions had

not served as a deterrent, and concluded his criminal history further justif ied

application of aggravating factors six and nine, the extent of the offender's

criminal record and need for deterrence, N.J.S.A. 2C:44-1(a)(6), and (9),

respectively. The court found no mitigating factors.

The court sentenced Davis to a term of forty-six years on each of the

murder counts, merged the conspiracy count with all three of them, and

merged the felony murder count with the first one, for Michael's murder. It

then imposed sentences of fifteen years for the robbery, eight years each for

unlawful possession and burglary, and four years for the criminal restraint

count. The count for possession of a weapon for an unlawful purpose merged

into the murder and robbery counts.

Although the court acknowledged that the murders had occurred within

the same apartment and in close sequence, they occurred in different places

within that apartment at different times and, in the end, were "separate acts of

violence . . . caused by distinct types of conduct." The court reasoned the

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objective of robbing and killing Michael and Frazier was independent of

killing Kenilson, who happened to be there, and that Michael and Kenilson

were found murdered in the upstairs bedroom while Frazier had been killed

separately in the basement. Weighing these factors, the court concluded that

Davis's convictions on the three murder counts should run consecutively to

ensure that there be "no free crimes," but determined that his sentences on the

rest of his convictions should run concurrently to one or the other murder

counts, yielding an aggregate sentence of 138 years.

With respect to Mays, the court noted he had twenty-two prior arrests

and eight indictable convictions between June 2000 and August 2009, most for

possession or distribution of drugs and one for unlawful possession of a

handgun, and found the same balance of aggravating and mitigating factors for

the same reasons recounted above. The court sentenced Mays to fifty-one

years on each count of murder—twenty years for the robbery, ten years each

for unlawful possession and burglary, and five years for the criminal restraint

count—and merged the balance of his offenses in the same manner as it had

Davis's. The court reached the same conclusion as to consecutive sentencing

with the same justification, yielding an aggregate sentence of 153 years.

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Both defendants challenge the imposition of consecutive sentences for

the murder charges. They acknowledge there were three victims, but argue the

murders were committed close in time, in the same location, and with only a

single criminal objective—the robbery of Michael for drugs or money. Mays

stresses that the murders likely occurred within minutes of one another, the

entire series of events transpired in a single apartment, and, in any event, that

he maintains his innocence for all these offenses. Davis argues the court failed

to consider the balance of the Yarbough4 standard beyond the admonition that

there should be "no free crimes," and in particular, the guidance that there

should be an overall limit on the cumulation of consecutive sentences.

The fact that there were multiple victims ordinarily warrants the

imposition of consecutive sentences, Carey, 168 N.J. at 428. Here, the court

offered a broader rationale, explaining, based on sufficient credible evidence

in the record, that these murders were not a unified criminal transaction, but

instead varied in time, place, and objective. However, in light of the Supreme

Court's recent advisement that the court must provide an explicit statement,

explaining the overall fairness of a sentence imposed for multiple offenses in a

single proceeding or in multiple sentencing proceedings, as essential to a

4

State v. Yarbough, 100 N.J. 627 (1985).

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proper Yarbough sentencing assessment we remand for resentencing consistent

with State v. Torres, 246 N.J. 246 (2021).

Both defendants contend their aggregate sentences were nonetheless

manifestly excessive. Davis challenges the notion that the first aggravating

factor was applicable, contending it double-counted the death of the victims,

an element of the murders. Mays does not quarrel with the court's analysis in

that respect but asserts without any elaboration that his fifty-one-year

sentences were nonetheless excessive.

The court gave both defendants intermediate sentences within the

appropriate statutory range despite a clear preponderance of aggravati ng

factors, the findings of all of which were unimpeachable. Double-counting an

element of the murders to find the first factor would have been inappropriate,

State v. Pineda, 119 N.J. 621, 627 (1990), but the court's finding explicitly

relied only on Frasier's torture, not on any element of the murders.

Defendants' other arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed and remanded for resentencing consistent with this opinion.

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