STATE OF NEW JERSEY v. JAMEL CARLTON (18-05-0719 and 20-12-0711, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 3, 2022
• Docket: A-0072-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0072-21

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JAMEL CARLTON,

Defendant-Respondent. __________________________

Submitted January 5, 2022 – Decided February 3, 2022

Before Judges Geiger and Susswein.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 18-05-0719 and 20-12-0711.

Cary Shill, Acting Atlantic County Prosecutor, attorney for appellant (John J. Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Robert W. Johnson, attorney for respondent.

PER CURIAM This appeal arises in the course of an ongoing prosecution in which

defendant, Jamel Carlton, is facing trial for crimes he allegedly committed

against his girlfriend. Those charges are aggravated sexual assault, sexual

assault, criminal restraint, assault, and burglary. Defendant also is charged with

obstruction of law or other governmental function by means of flight from

police. The State appeals from interlocutory rulings by the trial court (1) to

sever and try separately the count charging obstruction, and (2) to exclude

evidence of defendant's flight from the trial on the offenses he allegedly

committed against his girlfriend. After carefully reviewing the record in light

of the applicable principles of law, we conclude that the trial judge did not abuse

her discretion and affirm.

We briefly summarize the pertinent facts and procedural history. In doing

so, we recognize that defendant is presumed innocent. At 5:30 a.m. on February

10, 2018, Atlantic City Police arrested and charged defendant for assaulting his

girlfriend at Bally's Casino. Defendant was released from police custody on a

complaint-summons at 9:00 a.m. 1 Surveillance video shows that defendant

1 Defendant notes in his responding brief that the complaint-summons charging domestic violence assault was eventually dismissed. The limited record before us does not indicate whether a no-contact order or other restraints were issued

A-0072-21 2 returned to the Casino at 10:00 a.m. wearing the same clothes he had been

wearing at the police station.

At 11:30 a.m., Atlantic City police responded to a report by the girlfriend

that defendant sexually assaulted her at the Casino. Upon their arrival, police

observed defendant and ordered him to halt. He ignored their commands and

ran from the Casino on foot. The flight was recorded on surveillance and body -

worn camera video. Once the police apprehended defendant, they asked him

why he had fled. Defendant explained that he ran from them because of a

"situation with [his] girl." 2

A grand jury subsequently returned a superseding indictment charging

defendant with six crimes: (1) aggravated sexual assault, N.J.S.A. 2C:14-

2(a)(3); (2) sexual assault, N.J.S.A. 2C:14-2(c)(1); (3) burglary, N.J.S.A. 2C:18-

29(a)(1); (4) aggravated assault, N.J.S.A. 2C:12-1(b)(7); (5) criminal restraint,

N.J.S.A. 2C:13-2a; and (6) obstruction, N.J.S.A. 2C:29-1(a).

pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25- 17 to -35. 2 The trial court agreed that this statement was taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and thus would not be admissible in the State's case-in-chief. A-0072-21 3 Importantly for purposes of this appeal, on June 17, 2021, the parties

agreed to exclude "any indications and references to . . . [d]efendant’s prior

domestic violence matter from any videos and audio evidence." Also on that

date, defendant moved to sever the obstruction count and to exclude evidence of

his flight from the trial on the remaining five counts pursuant to N.J.R.E. 403.

The prosecutor contested defendant's in limine motions, arguing that defendant's

flight is highly relevant to the other charges and constitutes "classic" evidence

of consciousness of guilt.

On July 28, 2021, the trial judge heard oral argument and granted

defendant's motions to sever the obstruction count from the remaining charges

and exclude evidence relating to defendant's flight from the trial on the other

charges. Pursuant to N.J.R.E. 403, the judge weighed the probative value of the

evidence of flight against the risk of unfair prejudice. While acknowledging

that defendant's flight was probative of his consciousness of guilt, the court

concluded that the potential for prejudice "very slightly outweighed" the

probative value of the flight evidence. The trial judge emphasized that admitting

the flight evidence "could create an issue with [defendant] being able to proceed

with his version of events and being able to explain to the jury why he was

running. . . ." The judge added, "[a]nd I would not want the jury to be confused

A-0072-21 4 or [defendant to] be foreclosed from saying whatever it is he's going to say about

why he ran at that moment."

The judge granted the prosecutor's request to stay the

severance/evidentiary rulings to permit the State to file an interlocutory appeal.

On August 17, 2021, we granted the State's motion for leave to appeal. The

State raises the following issue for our consideration:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN SEVERING COUNT 6 AND PRECLUDING EVIDENCE OF FLIGHT, AS THE EVIDENCE OF FLIGHT IS INEXTRICABLY LINKED TO THE CHARGED OFFENSES AND THE TRIAL COURT'S RULING WOULD ALLOW DEFENDANT TO EVADE PROSECUTION ON COUNT 6 WHETHER TRIED JOINTLY OR SEPARATELY[.]

We begin our analysis by acknowledging the legal principles governing

this appeal. The scope of our review is limited. As a general matter, "'[t]he

decision to admit or exclude evidence is one firmly entrusted to the trial court's

discretion.'" State v. Scott, 229 N.J. 469, 479 (2017) (quoting In re Est. of

Hanges v. Metro Prop. & Cas. Ins. Co., 202 N.J. 369, 383–84 (2010)). We thus

apply "a deferential standard in reviewing a trial court's evidentiary rulings and

uphold its determinations 'absent a showing of an abuse of

discretion.'" Ibid. (quoting State v. Perry, 225 N.J. 222, 233 (2016)). Relatedly,

A-0072-21 5 "'[a] reviewing court must not 'substitute its own judgment for that of the trial

court' unless there was a 'clear error in judgment'—a ruling 'so wide of the mark

that a manifest denial of justice resulted.'" Ibid. (quoting State v. Marrero, 148

N.J. 469, 484 (1997)).

We likewise afford deference when reviewing a trial court's decision

whether to try a defendant on multiple counts simultaneously or to sever counts.

See State v. Sterling, 215 N.J. 65, 73 (2013). As a general matter, "[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.'" Ibid. (alteration in

original) (quoting State v. Chenique-Puey, 145 N.J. 334, 341 (2013)). It is "[t]he

admissibility of the evidence in both trials [that] renders inconsequential the

need for severance." State v. Davis, 390 N.J. Super. 573, 591 (App. Div. 2007)

(citation omitted).

The law is well-settled that evidence of "other crimes"—in this instance,

the earlier domestic violence incident—is generally excluded at trial and is

admissible only for the limited purposes set forth in N.J.R.E. 404(b). 3 Such

3 Under N.J.R.E. 404(b), "[e]xcept as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove a person's

A-0072-21 6 evidence is generally excluded because of its well-recognized potential to

prejudice a defendant by suggesting his or her criminal propensities. See State

v. Weeks, 107 N.J. 396, 406 (1987). Because of the dangers that admission of

other crimes evidence presents, "evidence proffered under Rule 404(b) 'must

pass [a] rigorous test.'" State v. Garrison, 228 N.J. 182, 194 (2017) (quoting

State v. Kemp, 195 N.J. 136, 159 (2008)). As we have noted, in this instance

the trial court found that the potential for prejudice outweighed the probative

value of the flight evidence, albeit only slightly.

In State v. Mann, our Supreme Court specifically addressed the balancing

of prejudice against probative value with respect to evidence regarding a

defendant's flight from police. 132 N.J. 410 (1993). The Court cautioned,

[t]he potential for prejudice to the defendant and the marginal probative value of evidence of flight or escape mandate careful consideration of the nature of the evidence to be admitted and the manner in which it is presented. United States v. Hankins, 931 F.2d 1256, 1261–62 (8th Cir. 1991) (describing proper treatment of escape evidence to avoid undue prejudice)[.]

disposition in order to show that on a particular occasion the person acted in conformity with such disposition." However, evidence of prior bad acts "may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.; see also infra note 5.

A-0072-21 7 [Id. at 420.]

The Court also warned, "[i]n those instances in which the trial court deems the

evidence of flight admissible, it must instruct the jury carefully regarding the

inferences the jury may draw from that evidence." Ibid.

The case law and model jury charge for flight make clear that a defendant

may offer an explanation for his or her flight to rebut the State's argument that

the flight evinces a consciousness of guilt. 4 Furthermore, as we noted in State

v. Latney,

4 The model jury charges provides in pertinent part:

There has been some testimony in the case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defense has suggested the following explanation: (SET FORTH EXPLANATION SUGGESTED BY DEFENSE)

If you find the defendant's explanation credible, you should not draw any inference of the defendant's consciousness of guilt from the defendant's departure.

If, after a consideration of all the evidence, you find that the defendant, fearing that an accusation or arrest would be made against him/her on the charge involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all the other

A-0072-21 8 [a]n instruction on a permissible inference of consciousness of guilt flowing from flight is appropriate when there are "circumstances present and unexplained which . . . reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt."

[415 N.J. Super. 169, 176–77 (2010) (quoting Mann, 132 N.J. at 418–19) (alteration in original) (emphasis added) (citation omitted).]

Defendant argues—and the trial judge found—that in this instance, if the

obstruction count is not severed, defendant will be forced to choose between (1)

challenging the State's accusation by introducing evidence of an uncharged bad

act, or (2) leaving unchallenged the State's contention that defendant's flight was

evidence of his consciousness of guilt of the aggravated sexual assault, assault,

criminal restraint, and burglary offenses. We see no abuse of discretion in the

trial court's decision to avoid imposing such a choice on defendant. Cf. Latney,

415 N.J. Super. at 177 ("We cannot accept the trial judge's conclusion that a

evidence in the case, as an indication or proof of a consciousness of guilt.

[Model Jury Charges (Criminal), "Flight" (rev. Mar. 10, 2010).]

A-0072-21 9 defendant is required to choose between introducing evidence of his or her own

crimes or facing an instruction on flight that excludes pertinent facts.").

We stress that by agreeing to exclude evidence of the earlier domestic

violence incident, the State has tacitly acknowledged that evidence concerning

that episode would be unfairly prejudicial. Indeed, the self-evident purpose of

that agreement was to avoid the inherent prejudice that would result if the jury

learned about an unindicted—and since-dismissed—domestic violence assault

earlier that day involving the same victim.5 The whole point of the agreement

would effectively be nullified if defendant were constrained to reveal the earlier

domestic violence assault while offering an alternative explanation for why he

ran from police. Given what our Supreme Court has described as the "marginal

probative value of evidence of flight," Mann, 132 N.J. at 420, we do not believe

the trial court strayed wide of the mark in ruling that in these circumstances, the

5 The State on appeal does not argue that evidence of the earlier assault would be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident under N.J.R.E. 404(b). Indeed, the State abandoned and foreclosed any such argument by agreeing that evidence of the earlier domestic violence episode should not be admitted.

A-0072-21 10 risk of prejudice warranted a severance of the fourth-degree obstruction count

from the remaining counts of the indictment. 6

The State argues the flight charge is so "intrinsic[ally] connect[ed]" to the

other five charges that it cannot stand on its own. Even accepting just for the

purposes of argument that were true, we do not believe the trial court abused its

discretion in taking precautions to ensure a fair trial with respect to the more

serious crimes alleged to have been committed against defendant's girlfriend.

We decline to second-guess the trial court's exercise of caution in light of the

agreement by the parties that the jury should not hear evidence regarding the

earlier domestic violence incident.

We do not agree, moreover, with the State's contention that the trial court's

ruling will allow defendant to "evade prosecution" for obstruction. As the trial

judge aptly noted, "[s]o, Mr. Carlton will have himself two trials and two

verdicts one way or the other. And two sentences if he's convicted." The

electronic recordings of defendant's flight speak for themselves. The assessment

of the balance of probative value and unfair prejudice, moreover, will no doubt

6 We note that a limiting instruction would not guarantee that the risk of unfair prejudice had been eliminated. Cf. State v. Herbert, 457 N.J. Super. 490, 505– 07 (App. Div. 2019) (discussing "the risk of imperfect compliance" with a limiting instruction).

A-0072-21 11 be different at the second trial since by that point, defendant will no longer be

in jeopardy with respect to the crimes against his girlfriend. We offer no opinion

on whether or in what circumstances the court at the second trial might permit

the State to introduce evidence of the victim's allegations of indictable crimes

to explain why police were chasing defendant and why he fled from them.7

Nothing in this opinion should be construed as precluding the State from

introducing such evidence in the second trial. But in these specific

circumstances, the fact that evidence of the crimes against the victim set forth

in the indictment might be admissible in both trials does not "render[]

inconsequential the need for severance." Cf. Davis, 390 N.J. Super. at 591

In sum, we believe the trial court committed neither a "clear error in

judgment" nor a "manifest denial of justice" in taking precautions to safeguard

the fairness and integrity of the trial on the more serious charges. See Scott, 229

N.J. at 479 (quoting Marrero, 148 N.J. at 484). While we might have reached a

different conclusion were it our decision to make in the first instance, we decline

to substitute our judgment for that of the trial court. Ibid.

7 We note that obstruction under N.J.S.A. 2C:29-1(a) is graded as a fourth- degree crime only "if the actor obstructs the detection or investigation of a [n indictable] crime[,] . . . otherwise it is a disorderly persons offense." Ibid. A-0072-21 12 To the extent we have not specifically addressed them, any remaining

arguments made by the State lack sufficient merit to warrant discussion. R.

2:11-3(e)(1)(E).

Affirm

A-0072-21 13