"Without an objection at the time a jury instruction is given, 'there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case.'"
How later courts described this case
- "Without an objection at the time a jury instruction is given, 'there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case.'"
- noting the "aggravating factors are sufficient to outweigh the single mitigating factor, particularly because, as the judge determined, the nature of the murder . . . was exceptionally heinous."
Written by the judges who cited it.
The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1884-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KHALIL WHEELERWEAVER,
Defendant-Appellant.
_____________________________
Argued December 6, 2023 – Decided January 25, 2024
Before Judges Currier, Firko and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-02-0547.
Stephen William Kirsch, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Stephen William Kirsch, on the
brief).
Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Frank J. Ducoat, of
counsel and on the brief).
PER CURIAM
Defendant Khalil Wheelerweaver1 appeals his jury trial convictions for
the murder of three women and the sexual assault and attempted murder of a
fourth woman. He also was convicted of kidnapping, aggravated sexual assault,
desecration of human remains, and aggravated arson, and was sentenced to an
aggregate prison term of 160 years.
On appeal, defendant contends the charges involving each victim should
have been tried separately. He argues the judge improperly instructed the jury
on how to consider the evidence of the multiple criminal episodes. He also
argues police violated his Fifth Amendment right to remain silent and the trial
judge erred when he informed the jury on his ruling issued following the
Miranda2 hearing. Further, defendant contends his sentence is manifestly
excessive. Based upon our review of the record, the parties' arguments, and the
applicable legal principles, we affirm.
1
Defendant's surname is also spelled as "Wheeler-Weaver" at times. However,
the judgment of conviction and notice of appeal use the non-hyphenated
spelling.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1884-21
2
I.
We discern the following pertinent facts from the record. We summarize
the crimes in the chronological order in which they were committed.
Victim R.W.3 (deceased)
On August 31, 2016, R.W. was walking with Breniesha Patterson and
another woman on a street known for prostitution in Newark. They planned to
engage in sex work. Patterson testified a car drove up and the driver "wanted"
R.W., who got into the vehicle. Patterson told the driver, "[b]e careful with my
sister because I love her," and "I'm going to take your license plate." She
recorded the license plate number. R.W. sent Patterson a Facebook message
twenty minutes later. Patterson never heard from R.W. again. Patterson
reported R.W. missing on September 2, 2016. She provided police with the
license plate number of the car R.W. entered.
On September 1, 2016, firefighters responded to a fire at an abandoned
house on Lakeside Avenue in Orange. It took several hours to get the fire under
control. Investigators found badly burned human remains inside the house.
Dental records confirmed the burned body was R.W. An expert testified the
cause of death was asphyxia due to strangulation. There was no soot in her
3
We use initials to protect the victims' privacy. R. 1:38-3(c)(12).
A-1884-21
3
airways, indicating R.W. was dead before the fire began. The investigation into
the cause of the fire revealed there was no gas, electricity, or stove in the house.
There was evidence of squatters, trespassing, and drug use.
On September 7, 2016, Detective Sergio Pereira of the Union Township
Police Department was conducting the missing persons investigation. He
determined the license plate number provided by Patterson was linked to
defendant's car. Pereira went to defendant's residence and showed him a
photograph of R.W. Defendant admitted he was with R.W. on August 31.
Defendant explained he was driving in Newark and saw R.W. He said she
wanted pizza, so he offered to drive her to a store. R.W. asked defendant if she
could stay with him. He said no, but told her about an abandoned house in
Orange where people stayed. He claimed he dropped her off at that location.
Defendant volunteered to take the officers there. However, he took them to a
different address than the house that was set on fire.
Defendant's phone records revealed he was near the location of the fire on
August 31. His phone records also showed defendant searched the internet for
missing persons in Union County, his home address, and "can text apps be
traced."
A-1884-21
4
Victim J.B. (deceased)
On October 22, 2016, J.B. and her long-time friend, Amina Nobles, were
on Frelinghuysen and Evergreen Avenues in Newark near a fast-food restaurant.
J.B. let another friend use her phone, and then left the area. J.B. later called
Nobles from someone else's phone—which was later shown in phone records to
be defendant's phone. Nobles testified J.B. seemed okay during the call. J.B.
told Nobles she expected to be gone for an hour. She never returned. Later that
day, Nobles received a call from the number J.B. used earlier. The caller did
not speak. A missing persons report was filed a few days later.
On December 5, 2016, two construction workers went to an abandoned
house on Highland Ave in Orange to write a contract for repairs. They
discovered J.B.'s body inside. A jacket was wrapped around J.B.'s face and neck
area. Her face was covered with duct tape from the nose down. The medical
examiner determined the cause of death was mechanical asphyxiation.
Phone records indicate defendant called Nobles on October 22, 2016.
Defendant also called J.B. four times that day. Defendant's phone records
confirmed he was near the fast-food restaurant in Newark and then the
abandoned house.
A-1884-21
5
In the days leading up to J.B.'s disappearance, defendant conducted the
following searches on the internet: "Walgreen needles," "what stores that sell
syringes," "drug that put you to sleep instantly," "homemade poison," and "how
do you make deadly poisons out of common household objects."
Victim T.T. (survived)
T.T. had been introduced to defendant by a former friend. In April 2016,
defendant texted her and offered money for sex. T.T. went to defendant's home.
He gave her the money upfront. She told defendant she had to go to her car to
retrieve a condom but left and never returned.
In November 2016, T.T. was staying at a motel in Elizabeth. She was
pregnant and no longer engaging in prostitution. She was, however, "conning"
prospective "tricks," that is, "[s]omeone who gives money for sex."
On November 15, 2016, defendant reached out to T.T. She decided to try
to con him and take his money. Defendant arrived at the motel wearing all black
and what T.T. described as "half a mask thing." He was also wearing gloves
and a hat with his hood over it. T.T. did not find this unusual because it was
November.
T.T. and defendant did not have identification, which prevented them from
getting a motel room. T.T. told him they might be able to get a room at a
A-1884-21
6
different motel without having to produce identification. She then went to her
room to get the keys to her friend Arnold's car. T.T. left her phone in the room.
T.T. and defendant drove to a gas station and then to a motel in Linden.
T.T. exited the car and asked motel staff about getting a room, but the cost was
too high. Defendant waited in the car. As they pulled out of motel parking lot,
defendant asked her to pull over to use the bathroom. She parked the car on a
side street and defendant got out to relieve himself.
T.T. testified it was a "blur" after defendant got back to the car. She thinks
he hit her over the head. She woke up in the back seat. T.T. said defendant was
"raping [her] from behind and then choking [her] out at the same time." She
passed out and woke up "about three times all together" because of the
strangling. T.T. tried to scratch defendant's face. He then put her hands behind
her back, handcuffed her, and duct-taped her nose and mouth.
At some point, defendant moved to the front seat and took off his mask.
He asked T.T. if she remembered him. He reminded her she had previously
taken his money. Because the duct tape loosened from her crying and sweating,
she was able to speak. She told defendant she left her phone with his text
messages in her room. Defendant replied, "[o]h, no, we got to go back and get
A-1884-21
7
that phone." She told him if he took her back to her room, she would have
Arnold pay him if he let them go.
On the way back to the first motel, T.T. slipped out of one of the
handcuffs. She testified defendant wanted her:
to go upstairs, grab the phone. He was going to follow
at a distance behind me, have the old man [Arnold]
come out, come downstairs, get in the car. He was
going to follow and from there he was going to take us
to [an] ATM and take us to a secluded area and then let
us go.
T.T. kicked on the door. When Arnold opened it, she entered and locked the
door behind her. After banging on the door, defendant ran off. Arnold called
9-1-1. T.T. told the operator she had been kidnapped. She told responding
officers defendant kidnapped, choked, and duct taped her.
Phone location data showed defendant's phone was at the motel where
T.T. was staying between 7:51 p.m. and 8:04 p.m. on November 15, was at the
gas station between 8:07 p.m. and 8:11 p.m., was at the motel in Linden, and
then returned to T.T.'s motel. T.T. made a positive in-court identification of
defendant.
A-1884-21
8
Victim S.B. (deceased)
On November 19, 2016, defendant texted S.B., "[d]o you want to make
money?" and "[s]ex for money?" S.B. replied, "[h]ow much money?" She later
texted, "[t]o f*** me, 500."
S.B.'s phone records revealed defendant agreed to pick her up in Jersey
City, where she went to school, drive her to his house and bring her back after.
S.B. asked if he would pay her first. He responded he would pay her at his
house. She then texted, "[y]ou're not a serial killer, right? LMAO [laughing my
ass off]?" Defendant responded, "no" and she replied, "[o]kay, cool." The
planned rendezvous on November 19 never occurred.
On November 21, defendant texted S.B., "[w]assup." She responded,
"[s]orry about the other day" and "I got really nervous."
On November 22, S.B.'s mother picked her up from school. Later that
night, S.B. drove her mother's van to visit a friend. She told her mother she
would be right back, but never returned. Her body was later found at Eagle Rock
Reservation in West Orange.
A convenience store's surveillance video showed defendant get out of
S.B.'s mother's van and enter the store. S.B. remained in the van on her phone.
A-1884-21
9
Lamia Brown, S.B.'s friend, contacted her on the day S.B. disappeared.
S.B. used an app called "Tagged," which Lamina described as an app that "just
let's you connect with local people." Lamia 4 testified S.B. was communicating
with somebody on Tagged leading up to November 22. The last time Lamia
spoke with S.B. was on November 22 at 10:04 p.m.
On November 23, S.B.'s mother went to Lamia's place of employment and
said she had not spoken to her daughter all day. They filed a police report that
day.
Detective Pierre Falaise from the Montclair Police testified S.B.'s mother's
van was found on November 25 in the rear of a lot on Nassau Street in Orange.
Defendant lived about five or six blocks away from where the van was
discovered. Lamia testified S.B. was wearing red hair extensions on the day she
disappeared. In the van, police found a black purse with S.B.'s property in it, a
condom box, and a cigar. In the lot, they found a hair extension and clear tape
with red hair stuck on it. S.B.'s hair extension had high levels of saliva in it.
S.B.'s sister testified she, Lamia, and a friend, Samantha Rivera, searched
S.B.'s computer. Rivera created a profile on Tagged. "Lilyachtrock," an account
4
Because Lamia Brown coincidently shares the same last name with one of the
victims, we use her first name to avoid confusion. We mean no disrespect in
doing so.
A-1884-21
10
who contacted S.B. before her disappearance, contacted Rivera. Rivera and
Lamia conversed with Lilyachtrock—later revealed to be defendant—to "see if
anything was similar, to just see if we can locate, find clues." They arranged to
meet defendant at a restaurant in Glen Ridge. The women alerted Montclair
police about their plan.
When defendant arrived at the restaurant, police approached him. They
told defendant they wanted to speak with him because he may have been one of
the last people to speak with a missing person—S.B. Defendant agreed to go to
police headquarters and speak with police. Detective Falaise testified police
were investigating a missing persons report at the time and did not know S.B.
was dead. For that reason, the conversation with defendant was not recorded.
Defendant was not confined or restrained.
Falaise testified defendant said he had met S.B. at New Jersey City
University. Defendant messaged her on Tagged after recognizing her. He told
police he wanted to see if she used the app to solicit money for sex. Defendant
admitted he was "lilyachtrock" but said the profile photo was a picture of his
stepbrother. He created the account using the email address of
pimpkillerghost@yahoo.com.
A-1884-21
11
Defendant told police that on the night of November 22, S.B. picked him
up from the Orange Commons parking lot. She asked if he wanted to smoke,
but he did not. S.B. then went into a building to purchase marijuana. After
driving around, defendant said S.B. picked up another man. S.B. and the other
man were smoking so defendant asked her to bring him back to Orange
Commons. On the drive back, defendant received a text from his friend, Richard
Isaacs, at 8:17 p.m. S.B. dropped defendant off at Orange Commons. Defendant
told police the other man did not exit the car, but instead moved to the front seat.
Defendant claimed he never heard from S.B. again.
On November 29, defendant rode with police to show them the route S.B.
took on the night she disappeared. Defendant was free to leave and was not
placed in handcuffs. During the drive, defendant pointed out a car and explained
he and Isaacs were working on it after S.B. dropped him off that night.
On December 1, 2016, police found S.B.'s body covered with sticks and
brush in a wooded area in the Eagle Rock Reservation. A pair of sweatpants
were wrapped around her neck. A medical examiner testified S.B.'s cause of
death was compression of the neck.
Police interviewed Isaacs. Originally, he told police he was working on
cars with defendant on the night of November 22. He later admitted this was a
A-1884-21
12
lie. He testified he told police he was with defendant on multiple occasions
because, "I was covering for him, saying I was with him."
Phone records show defendant's phone was near High Point Pavilion and
Eagle Rock Reservation from 10:38 p.m. until 12:43 a.m. on November 23. On
November 23, defendant searched: "how to remove Apple i.d. from iPhone 6"
and "factory reset iPhone to remove Apple i.d." on his phone. On August 27,
2016, he searched for "Eagle Rock Reservation, New Jersey."
Evidence Found in Defendant's Residence and Car
On December 6, 2016, police conducted a search of defendant's home and
car. In defendant's house, police found a pair of black and yellow gloves, a
black hat, a black Nike sweatshirt, black Nike sweatpants, black sneakers, and
three cell phones. In his car, police found a pair of black gloves, plastic wire
ties, pepper spray, a first aid kit, and a "body fluid cleaner kit."
Defendant's Statements
On December 6, defendant spoke with Essex County detectives, who told
defendant they knew he was not with Isaacs on November 22 because of his
phone records. Defendant admitted he lied to them and that he had previously
lied to Montclair police. After learning he was captured on a convenience store's
A-1884-21
13
surveillance camera, defendant admitted to visiting the store with S.B. on the
night she disappeared.
Defendant told detectives he bought a box of condoms, cigars, a rollup
and maybe something to drink. He also admitted to having sex with S.B. that
night. After leaving the convenience store, defendant said they went to get
marijuana, picked up her friend in Newark, and went to the reservation. At first,
defendant claimed they had a "threesome," but then changed his story. He said
the other man had sex with S.B. first, after which defendant had sex with her.
He claimed S.B. then dropped him off at the same street she had picked him up
from. Defendant denied any involvement in R.W.'s death and the fire that
burned her remains.
In 2017, defendant was charged by indictment with three counts of first -
degree murder, N.J.S.A. 2C:11-3(a)(1); three counts of second-degree
disturbing human remains, N.J.S.A. 2C:22-1(a); second-degree aggravated
arson, N.J.S.A. 2C:17-1(a)(1); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1);
first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1); and
two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3).
In August 2018, the court granted the State's motion to admit defendant's
statements to police, rejecting defendant's contention police violated his
A-1884-21
14
Miranda rights. The court also denied defendant's motion to sever the case in to
four separate trials.
Defendant's trial was held over the course of eight weeks in October
through December 2019. A different judge presided over the trial than the judge
who decided the Miranda and severance motions. Defendant was convicted of
all counts and sentenced to 160 years in prison with 145 years of parole
ineligibility. This appeal follows.
Defendant raises the following contentions for our consideration:
POINT I
THE MOTION FOR SEVERANCE SHOULD HAVE
BEEN GRANTED. JOINDER OF THESE FOUR
SEPARATE SETS OF ALLEGATIONS FOR TRIAL
WAS NOT WARRANTED BY THE CASE LAW,
WAS TOO UNDULY PREJUDICIAL, AND DENIED
DEFENDANT DUE PROCESS AND A FAIR TRIAL;
ALTERNATIVELY, AN N.J.R.E. 404(B) LIMITING
INSTRUCTION SHOULD HAVE BEEN GIVEN ON
THE PROPER AND IMPROPER USE OF THE
JOINED COUNTS AGAINST ONE ANOTHER.
POINT II
THE DEFENDANT'S DECEMBER 6, 2016
STATEMENT TO POLICE SHOULD HAVE BEEN
SUPPRESSED BECAUSE, AFTER VIOLATING
STATE V. VINCENTY, POLICE THEN IGNORED
DEFENDANT'S INVOCATION OF HIS RIGHT TO
SILENCE AND GOADED HIM INTO SPEAKING BY
TELLING HIM ABOUT THE CHARGES THAT
A-1884-21
15
WERE BEING FILED AGAINST HIM AFTER HE
HAD INVOKED HIS RIGHT TO SILENCE.
POINT III
THE JUDGE IMPROPERLY IMPINGED ON
DEFENDANT'S DUE-PROCESS RIGHTS AND HIS
RIGHT TO AN IMPARTIAL JURY—IN DIRECT
VIOLATION OF STATE V. HAMPTON AND
N.J.R.E. 104(C)—WHEN HE TOLD JURORS THAT
HE HAD FOUND DEFENDANT'S STATEMENTS
TO POLICE TO BE VOLUNTARY AND
ADMISSIBLE.
POINT IV
THE SENTENCE IMPOSED IS MANIFESTLY
EXCESSIVE.
II.
We first address defendant's contention the trial court erred by denying
his motion for severance. Recently, we summarized the rules governing joinder
and severance in State v. Smith, 471 N.J. Super. 548 (App. Div. 2022). Former
Chief Appellate Judge Messano explained:
Rule 3:7-6 permits the joinder of offenses in a single
indictment for a single trial if they are of a "same or
similar character or are based on the same act or
transaction or on [two] or more acts or transactions
connected together or constituting parts of a common
scheme or plan." (Emphasis added). "Charges need not
be identical to qualify as 'similar' for purposes of
joinder under Rule 3:7-6," [State v.] Sterling, 215 N.J.
[65] at 91 [2013] (citing State v. Baker, 49 N.J. 103,
105 (1967)), but they must be "connected together," id.
A-1884-21
16
215 N.J. at 91, or be "parts of a common scheme or
plan," id. 215 N.J. at 72.
[Id. at 575.]
Judge Messano added, "[t]he preference is for joinder of the offenses in a single
trial unless the defendant demonstrates prejudice." Ibid. (citing State v.
Chenique-Puey, 145 N.J. 334, 341 (1996)); see also R. 3:15-2(b) (providing for
relief from prejudicial joinder in criminal trials).
In Sterling, our Supreme Court explained "[t]he test for assessing
prejudice is 'whether, assuming the charges were tried separately, evidence of
the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)]
in the trial of the remaining charges.'" 215 N.J. at 73 (quoting Chenique- Puey,
145 N.J. at 341).
In State v. Cofield, the Court established a multi-factor test to determine
when and in what circumstances "other crimes" evidence is admissible in a
criminal trial. 127 N.J. 328, 338 (1992). The Cofield factors are:
(1) The evidence of the other crime must be admissible
as relevant to a material issue; (2) It must be similar in
kind and reasonably close in time to the offense
charged; (3) The evidence of the other crime must be
clear and convincing; and (4) The probative value of
the evidence must not be outweighed by its apparent
prejudice.
[Ibid.]
A-1884-21
17
Here, the motion judge made specific Cofield findings, stating:
I find pursuant to Cofield that the subject evidence—
that the evidence, I should say of each killing and
related charges can be properly admitted in the trial of
the other for the following reasons: the evidence of each
murder or killing, or related charges is relevant to show
a common scheme or plan, motive, and as a signature
crime evidence. As argued by the State as to motive,
the four incidents support motive evidence for one
another. Viewing one of the homicides in isolation, it
would be difficult to comprehend, for example, why the
defendant would want to kill [S.B]. To place it in the
context with the other strangulation, murders of sex
workers the motive comes clear. Also as argued by the
State, defendant's signature crime here is to prey on
those vulnerable women who due to their occupations
in the sex worker industry perhaps are seen by society
at large to be disposable. I also note as to each victim
they were targeted for who they were and what they did
for money. They were killed in the same manner,
noting at least two[,] [S.B.]and [J.B.], strangled with
articles of clothing, [R.W.], although strangled as well,
but because of the fire allegedly set by the defendant
destroyed any articles of clothing that may have been
around her neck. I also note that T.T. was being
strangled while being raped and handcuffed when she
managed to interrupt the attack. I find that these
murders or attempted murders are sufficiently unique in
terms of the combined similarities, in victim, cause, and
manner of death. The signature of clothing, articles of
clothing around the next, desecration or concealment of
body remains, and again as noted earlier, even the
proffered alibi that can be used by the jury to make an
inference with regard to identify as opposed to mere
propensity. Reference again is made to [Cofield,] 127
N.J. 236.
A-1884-21
18
The judge also noted the four episodes occurred over the course of
approximately three months. The judge found the evidence of each crime clear
and convincing, and the probative value outweighed any potential for prejudice
to defendant. The judge also noted "that much, if not all" of the State's evidence
overlapped. The overlapping evidence included defendant's Miranda
statements, which referred to three murders; the alibis defendant offered in
regard to R.W. and S.B. both involved working on cars with Isaacs; and
defendant encouraged Isaacs to support a false alibi.
We are not convinced the similarities between the four criminal episodes
are sufficient to constitute a "signature." See Sterling, 215 N.J. at 97
(noting,"[a]lthough there were some similarities between the burglaries and
sexual assaults" involving the two victims, "there is no uniqueness to the manner
in which those crimes were committed"). We are satisfied, however, the
severance motion judge acted within his discretion in finding there was a
common plan or scheme connecting the four criminal episodes. In this instance,
defendant's common scheme or plan was to solicit sex workers, strangle them,
and destroy or dispose their remains.
We add this was not a situation involving two similar criminal episodes.
See State v. Lumumba, 253 N.J. Super. 375 (App. Div. 1992). Here, the
A-1884-21
19
evidence shows defendant is a serial murderer; he targeted four sex workers over
the course of a few months. The repetition of similar circumstances shows this
was no mere coincidence but rather a pattern of recurring behavior that evinces
a common plan or scheme.
We are unpersuaded by counsel's contention at oral argument that a
common plan or scheme must be corroborated by some form of extrinsic proof,
such as an admission or statements made to confederates or others. A common
plan or scheme for purposes of N.J.R.E. 404(b) and Rules 3:7-6 and 3:15-2(b)
does not require direct evidence of a conspiracy or joint venture. An individual
acting alone can have a common plan or scheme to commit a series of crimes
notwithstanding the "plan" is not articulated to others. Stated another way, the
common plan or scheme can be proved circumstantially from the nature and
circumstances of multiple episodes.
Finally, we reiterate and stress "[t]he decision to sever is within the trial
court's discretion, and it will be reversed only if it constitutes an abuse of
discretion." State v. Weaver, 219 N.J. 131, 149 (2014); see also State v. Sterling,
215 N.J. 65, 72-73 (2013). We decline to substitute our judgment for the trial
court's judgment in evaluating the Cofield factors and in gauging the prejudice
inherent in joining like offenses. Although the evidence defendant committed
A-1884-21
20
multiple crimes is inherently prejudicial, "it was prejudicial in the way that all
highly probative evidence is prejudicial: because it tends to prove a material
issue in dispute." State v. Rose, 206 N.J. 141, 164 (2011).
III.
We turn next to defendant's contention, raised for the first time on appeal,
"a[] N.J.R.E. 404(B) limiting instruction should have been given on the proper
and improper use of the joined counts against one another." The trial judge
instructed the jury:
There are [eleven]offenses charged in the indictment.
They are separate offenses by separate counts in the
indictment . . . In your determination of whether the
State has proven the defendant guilty of the crimes
charged in the indictment beyond a reasonable doubt,
the defendant is entitled to have each count considered
separately by the evidence which is relevant and
material to that particular charge based on the law as I
will give it to you.
On appeal, defendant relies on the general proposition that "if Rule 404(b)
evidence is admitted at trial, the judge is required to provide a 'carefully crafted
limiting instruction . . . explain[ing] to the jury the limited purpose for which
the other-crime evidence is being offered' . . . and 'setting forth the prohibited
and permitted purposes of the evidence.'" State v. Smith, 471 N.J. Super. 548,
577 (App. Div. 2022). That general principle is based on the notion that "[i] t is
A-1884-21
21
the danger that other-crimes evidence may indelibly brand the defendant as a
bad person and blind the jury from a careful consideration of the elements of the
charged offense that requires the trial court to deliver the limiting instructions
in a way that the jury can readily understand." State v. Blakney, 189 N.J. 88, 93
(2006).
Importantly, however, in Smith, we acknowledged, "[w]e know of no
reported case that requires similar instructions be given when two different sets
of charges are tried together." 471 N.J. Super. at 577. Here, the trial evidence
pertaining to the four criminal episodes was not "other crimes" evidence within
the meaning of Rule 404(b). It was admitted to prove indicted charges that were
before the jury to decide. In these circumstances, we conclude the trial judge's
jury instruction that "the defendant is entitled to have each count considered
separately by the evidence which is relevant and material to that particular
charge based on the law as I will give it to you" was adequate. See State v. Pitts,
116 N.J. 580, 603 (1989). We add defendant did not object to that instruction.
See State v. Montalvo, 229 N.J. 300, 320 (2017) ("Without an objection at the
time a jury instruction is given, 'there is a presumption that the charge was not
error and was unlikely to prejudice the defendant's case.'") (quoting State v.
A-1884-21
22
Singleton, 211 N.J. 157, 182 (2012)); see R. 1:7-2 (plain error rule); see also
State v. Funderburg, 225 N.J. 66, 79 (2016).
IV.
Defendant next argues detectives violated his Fifth Amendment rights,
first by failing to advise him of the charges he was facing when they
administered Miranda warnings, and thereafter by failing to scrupulously honor
his assertion of the right to remain silent. We begin our analysis by recounting
the relevant facts adduced at the suppression hearing.
On December 6th, 2016, defendant was transported to the Essex County
Homicide Task Force for a DNA buccal swab. Defendant's interaction with
detectives in the interrogation room was electronically recorded. We refer to
the time stamps on the video to provide context for the sequence of events.
Officers first inquired about defendant's identity, age, address, education,
and employment status at 19:25:50. Defendant was then advised of his Miranda
rights at 19:27:12. Defendant stated he did not wish to talk to the police. The
detectives stopped questioning him. They advised defendant they had a court
order to obtain a DNA sample and began taking his sample at 19:30:05. After
taking the sample, the detectives left the room.
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Detective Christopher Smith consulted prosecutors who authorized
charges against defendant. A short time later, at 19:48:12, Detective Smith
returned to the interrogation room. He advised defendant he was under arrest
and would be charged with murder and desecration of human remains.
Defendant was then left alone in the room until he was removed for processing
at 20:03:05.
While getting into the elevators with Detectives Herman Sherilian and
Michael DiPrimio, defendant said, "[t]his shit is ridiculous. I didn't get to tell
my side of the story." At first, Detective DiPrimio did not hear defendant. He
asked defendant to repeat himself. Defendant repeated, "[t]his is ridiculous. I
didn't get to tell my side of the story." DiPrimio asked defendant if he wanted
to talk to the detectives, to which the defendant responded that he did.
Defendant was brought back into the interrogation room at 20:05:38. He
confirmed he wanted to speak with the detectives at 20:06:18. Defendant was
re-read his Miranda rights at 20:08:43. He waived those rights and gave a
statement.5
The judge hearing the suppression motion ruled:
5
We have already recounted the gist of defendant's statement in our recitation
of the facts adduced at trial.
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Based on my review of all of the aforementioned, I find
that the … recording of the defendant's statement
clearly demonstrates that [defendant] was advised of
his Miranda Rights, understood them, and after initially
invoking them, [defendant] re-initiated questioning and
made a knowing, intelligent, and voluntary waiver of
his Miranda Rights before providing a lengthy
statement.
We need only briefly address defendant's contention the detectives
violated his Fifth Amendment rights by failing to comply with the rule
announced in State v. Vincenty, 237 N.J. 122 (2019). In Vincenty, detectives
asked the defendant to waive his right against self-incrimination without
informing him of charges filed against him. Id. at 135. The Court held
"[w]ithholding that 'critically important information' deprived [the defendant]
of the ability to knowingly and voluntarily waive the right against self-
incrimination." Ibid. However, in State v. Sims, our Supreme Court declined
to expand that requirement to apply to situations where a defendant has not yet
been formally charged. 250 N.J. 189, 210-17 (2022). The Court rejected and
reversed a new rule proposed by the Appellate Division "requiring officers to
tell an arrestee, not subject to a complaint-warrant or arrest warrant, what
charges he faces before interrogating him." Id. at 217.
Here, detectives administered the first set of Miranda warnings before
defendant was charged with any offense. Detectives only received authorization
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to apply for a murder complaint-warrant after defendant invoked his right to
remain silent. Nor was defendant formally charged with murder by complaint-
warrant when Miranda warnings were readministered. Although by that point,
detectives had advised defendant they would be applying for a complaint-
warrant charging murder.
We turn next to defendant's contention the detectives ignored his
invocation of the right to remain silent and "goaded him into speaking by telling
him about the charges that were being filed against him after he had invoked his
right to silence."
The scope of our review of a decision on a motion to suppress is limited.
State v. Ahmad, 246 N.J. 592, 609 (2021). In Sims, our Supreme Court
reaffirmed that "[w]hen we review a trial court's decision on a motion to
suppress a defendant's statement, we defer to the factual findings of the trial
court if those findings are supported by sufficient credible evidence in the
record." 250 N.J. at 210.
A defendant's decision to remain silent must be "scrupulously honored"
by law enforcement. State v. Hartley, 103 N.J. 252, 261 (1986) (citations
omitted); see also Michigan v. Mosley, 423 U.S. 96, 103 (1975). The "failure
[to] scrupulously honor a previously-invoked right to silence renders
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unconstitutionally compelled any resultant incriminating statement made in
response to custodial interrogation." Ibid. Thus, "once a defendant clearly and
unambiguously invokes his right to remain silent, interrogation must cease. "
State v. Maltese, 222 N.J. 525, 545 (2015).
"If a defendant initiates further police conversations after invoking his
right to remain silent, the resumption of police questioning will not constitute a
failure to scrupulously honor that right." State v. Mallon, 288 N.J. Super. 139,
147 (App. Div. 1996); see State v. Fuller, 118 N.J. 75, 83 (1990).
The record clearly shows the detectives did not 'interrogate' defendant by
informing him he was going to be charged with murder. "[I]nterrogation refers
to 'any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely
to elicit an incriminating response from the suspect.'" State in Interest of A.A.,
240 N.J. 341, 353-54 (2020) (quoting Rhode Island v. Innis, 446 U.S. 291, 301
(1980)). In State v. Mallozzi, we held that "informing defendant of the charges
against him was not designed or done to elicit any type of response from
defendant and thus places [the agent's] actions outside the Innis definition of
'interrogation.'" 246 N.J. Super 509, 516 (App. Div. 1991).
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As in Mallozzi, telling defendant he was going to be charged with murder
was not designed or reasonably likely to elicit an incriminating response. This
conclusion is confirmed by the fact the detective left the interrogation room after
he informed defendant of the impending charges. We conclude the detectives
scrupulously honored defendant's invocation of the right to remain silent —a
right he knowingly and voluntarily waived when he determined it would be in
his best interest to tell his side of the story.
V.
Defendant next argues the trial judge violated the rule announced in State
v. Hampton, 61 N.J. 250, 272 (1972), and codified in N.J.R.E. 104(c) when he
instructed the jury regarding the pretrial ruling denying defendant's motion to
suppress his statements to police. In Hampton, our Supreme Court held:
[T]he trial court alone shall determine (1) whether the
[Miranda] warnings were given to the accused and his
rights thereunder waived by him before the confession
was given; and that if it finds the warnings were not
given, or if given the rights not waived, the confession
must be excluded, and (2) if those conditions were
satisfied, whether in light of all the circumstances
attending the confession it was given voluntarily. If
these questions are resolved in favor of the State, then,
withou[t] being advised of the court's decision, the jury
shall be instructed that they should decide whether in
view of all the same circumstances the defendant's
confession is true.
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[61 N.J. at 272.]
Rule 104(c) further states, "[i]f the court admits the statement the jury shall not
be informed of the finding that the statement is admissible but shall be instructed
to disregard the statement if it finds that it is not credible."
In this instance, the trial judge told the jury:
In considering whether or not an oral statement was
actually made by the defendant, and, if made, whether
it is credible, you should receive, weigh, and consider
the evidence with caution based on the generally
recognized risk of misunderstanding by the hearer, or
the ability of the hearer to recall accurately the words
used by the defendant. The specific words used and the
ability to remember them are important to the correct
understanding of any oral communication because the
presence or absence or change of a single word may
substantially change the true meaning of even the
shortest sentence. You should, therefore, receive,
weigh, and consider such evidence with caution.
....
The Court has previously ruled that Miranda warnings
were not required for the taking of the alleged statement
on September 7th, 2016; November 26th and 29th of
2016, as the defendant was not in custody on those
dates. The Court has also previously ruled that
defendant was properly advised of his Miranda rights
and made a knowing, intelligent and voluntary waiver
of those rights prior to allegedly giving the audio/video
recorded statement on December 6th, 2016. If, after
consideration of all of these factors, you determine that
the statement was not actually made, then you must
disregard the statement completely. If you find that the
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statement was made, you may g[i]ve it the weight you
think appropriate to the statement. If you find that the
statement was made, but it was not truthful and/or
credible and the defendant purposely gave a false
statement knowing it was false, you may consider those
false statements to show the defendant's consciousness
of guilt.
The two sentences we have highlighted run afoul of the spirit if not the
letter of Hampton and Rule 104(c). It bears noting, however, counsel did not
object to the jury charge. See Montalvo, 229 N.J. at 320.
When a party does not object to an alleged trial error or otherwise properly
preserve the issue for appeal, it may nonetheless be considered by the appellate
court if it meets the plain error standard of Rule 2:10-2. State v. Clark, 251 N.J.
266, 286-87 (2022); see also State v. Singh, 245 N.J. 1, 13 (2021). "The mere
possibility of an unjust result is not enough." Funderburg, 225 N.J. at 79. "In
the context of a jury trial, the possibility must be 'sufficient to raise a reasonable
doubt as to whether the error led the jury to a result it otherwise might not have
reached.'" State v. G.E.P., 243 N.J. 362, 389 (2020) (quoting State v. Jordan,
147 N.J. 409, 422 (1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971))).
Here, although the two sentences we have highlighted were inappropriate,
those remarks did not lead to an unjust result considering the strength of the
evidence of defendant's guilt. "The very purpose of a Hampton charge is to call
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the jury's attention to the possible unreliability of the alleged statements made
by a criminal defendant." State v. Feaster, 156 N.J. 1, 72 (1998). In this instance,
the interrogation was recorded and played to the jury. The major portion of the
jury instruction we have reproduced properly tells the jury to "receive, weigh,
and consider the evidence with caution." Accordingly, when viewed in context,
we conclude the error does not rise to the level of plain error warranting reversal
of defendant's trial convictions.
VI.
Finally, we address defendant's contention the sentence imposed is
manifestly excessive. Defendant argues the trial judge failed to give proper
weight to his lack of criminal history and his age and provided an inadequate
explanation as to the overall fairness of his aggregate sentence. We disagree.
Our review of a trial court's imposition of sentence is limited. State v.
Bolvito, 217 N.J. 221, 228 (2014). "[A]ppellate courts should not 'substitute
their judgment for those of our sentencing courts. . . .'" State v. Cuff, 239 N.J.
321, 347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). It is well-
settled that "[o]nly when the facts and law show 'such a clear error of judgment
that it shocks the judicial conscience' should a sentence be modified on appeal."
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State v. Roach, 146 N.J. 208, 230 (1996) (quoting State v. Roth, 95 N.J. 334,
363-64 (1984)).
Here, the trial court found four aggravating factors applied: the nature and
circumstances of the offenses, N.J.S.A. 2C:44-1(a)(1); the gravity and
seriousness of the harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2); the risk
defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need for
deterring defendant and others from violating the law, N.J.S.A. 2C:44 -1(a)(9).
The judge also gave minimal weight to the mitigating factor of defendant having
no prior criminal record, N.J.S.A. 2C:44-1(b)(7).
We see no abuse of discretion. The judge recounted the horrific facts of
defendant's crimes. Affording more weight to defendant's lack of a criminal
record would have made no difference in the ultimate balancing of aggravating
and mitigating circumstances. See State v. Copling, 326 N.J. Super. 417, 440
(App. Div. 1999) (noting the "aggravating factors are sufficient to outweigh the
single mitigating factor, particularly because, as the judge determined, the
nature of the murder . . . was exceptionally heinous."). Under any conceivable
circumstance, the aggravating factors would substantially outweigh the
mitigating circumstances.
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We likewise reject defendant's argument the judge did not adequately
articulate that the overall sentence was fair. We note defendant does not
challenge the sentencing court’s decision to impose consecutive sentences
pursuant to State v. Yarbough, 100 N.J. 627 (1985), holding modified by State
v. Torres, 246 N.J. 246 (2021). Rather, the gravamen of his argument is the trial
judge failed to explain why the overall imprisonment and parole ineligibility
terms are fair.
In State v. Cuff, our Supreme Court applied the Yarbough criteria to a
defendant's lengthy sentence. 239 N.J. at 328. The Court stressed that a
"sentencing court's focus 'should be on the fairness of the overall sentence.'" Id.
at 352 (quoting State v. Miller, 108 N.J. 112, 121 (1987)). The Court reiterated
this principle in State v. Torres, holding a sentencing court "should focus on 'the
fairness of the overall sentence,'" and "'should set forth in detail its reasons for
concluding a particular sentence is warranted.'" 246 N.J. at 267-68 (quoting
Miller, 108 N.J. at 122).
But "fairness of the overall sentence" is not a talismanic phrase that must
invariably be recited verbatim. Here, the trial judge explained why a 160-year
prison term was warranted. He stated, "[t]he purpose of this sentence again is
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that this defendant never walks among society again." The judge also explained,
"[t]he sentence justifies the actions of the defendant."
We conclude the reasons for imposing the aggregate sentence that were
set forth by the trial judge in his comprehensive sentencing decision satisfy the
foundational requirements of Cuff and Torres, especially in view of the Torres
Court's recognition that "the severity of the crime is now the single most
important factor in the sentencing process." Id. at 262 (quoting State v. Hodge,
95 N.J. 369, 378-79 (1984)). The Torres Court "reiterate[d] the repeated
instruction that a sentencing court's decision whether to impose consecutive
sentences should retain focus on 'the fairness of the overall sentence.'" Id. at
270 (quoting Miller 108 N.J. at 122). But as we have noted, defendant does not
challenge the sentencing court’s decision to impose consecutive sentences.
In sum, it is not necessary to remand for the trial court to recite an explicit
"overall fairness" finding considering the entirety of the judge's sentencing
ruling, which clearly shows the judge deemed the aggregate sentence to be
necessary to serve the interests of justice. In the final analysis, the enormity of
the sentence is amply justified by the horrific nature of defendant's crimes.
Affirmed.
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