State of New Jersey v. James Crawford

• Court: New Jersey Superior Court Appellate Division
• Decided: November 1, 2024
• Docket: A-0153-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0153-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES CRAWFORD,

Defendant-Appellant. _______________________

Submitted September 16, 2024 – Decided November 1, 2024

Before Judges Gummer, Berdote Byrne, and Jacobs.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 19-02-0187.

Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, and Amily Bolano Diaz, on the brief).

PER CURIAM

Defendant James Crawford appeals from an August 12, 2022 judgment of conviction based on guilty verdicts for charges of murder and weapon offenses.

Defendant stood trial with co-defendant Alexander Harris, who is not involved

in this appeal.

Defendant argues the trial court erred in admitting certain hearsay

statements from a second co-defendant turned cooperating witness for the State,

Jahmir Thomas. In seeking reversal and a new trial, defendant claims the trial

court committed plain error when it failed to provide the jury with a tailored

limiting instruction regarding hearsay statements. He further argues that even

if his convictions are not reversed, this matter must be remanded to correct the

trial court's sentencing errors. The State opposes reversal of defendant's

convictions but agrees resentencing is warranted. For reasons that follow, we

affirm defendant's convictions but remand to the trial court to correct defendant's

sentence.

I.

We draw the facts leading to defendant's convictions from the trial record.

Thomas testified that in the early evening of September 4, 2018, defendant and

co-defendant Harris were traveling in Harris's white minivan in Jersey City.

Thomas had "[h]ung out with [Harris] a couple times" before. On that date,

Thomas was "[i]n Currie[s] Woods projects" when he saw Harris and defendant

pull up in the minivan.

A-0153-22 2 According to Thomas, as he entered the minivan, Harris was seated in the

driver seat and defendant was seated in the passenger seat. The trio drove north

in Jersey City until arriving at the intersection of Ocean and Lembeck Avenues,

where the victim, Eric Crocker, was on the stairs of a building located on the

northeast corner of Lembeck Avenue. Harris said, "There you go right there,"

pointing out the victim to others in the minivan. As the minivan traveled through

the intersection, Harris drove down an adjacent street and pulled over. Sensing

defendant did not want to shoot the victim, Harris said, "If you don't want to do

it, I'll do it." But defendant responded, "I'll do it." Thomas explained he knew

what Harris and defendant were discussing because they had a gun "[i]n the

middle of the [minivan’s] floor." At that point, Harris gave defendant the gun

from the floor of the minivan, a black hat, a black shirt, and gloves. Defendant

exited the minivan and walked toward the intersection of Lembeck and Ocean.

Harris and Thomas then drove to a nearby store.

There was testimony from several detectives regarding footage from

street-camera recordings of the intersections before, during, and after the

shooting. The footage showed an individual dressed in black exiting the minivan

at 5:51 p.m. and walking down Lembeck Avenue, approximately half a block

from the crime scene. According to Thomas, the individual seen exiting the

vehicle was defendant, dressed in all black, wearing the hat, gloves, and shirt

A-0153-22 3 Harris had given him. Thomas testified that after Harris returned to the minivan,

Thomas moved to the driver's seat and the pair drove away. At that point,

Thomas did not know whether the victim had been shot, but "[w]hen [they] got

closer [to the scene, they] saw all the chaos on Lembeck [Avenue]."

In the investigation that followed, police seized discarded items found

stashed under a nearby vehicle, including the black hat, a pair of gloves, and a

black shirt. No blood was found on any of the items; however, a New Jersey

State Police DNA analyst testified the lab found one person's DNA profile on

the shirt collar and one of the gloves. The analyst found more than one DNA

profile on the hat and compared it to a sample of defendant's DNA. The analyst

described the profile as "so rare that we can say . . . [defendant] is the source of

that profile." A medical examiner also testified for the State and confirmed the

victim was shot six times, perishing from fatal gunshot wounds.

In February 2019, defendant, Harris, and Thomas were indicted for

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

2C:11-3(a)(1) and (2) (counts one and two); possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count three); and unlawful

possession of a handgun (failure to have a permit), N.J.S.A. 2C:39-5(b)(1)

(count four).

A-0153-22 4 In March 2022, defendant and Harris were tried together, represented by

separate counsel. Thomas agreed to testify for the State. Prior to Thomas's

testimony before the jury, the trial court conducted a Rule 104(c) hearing to

determine the admissibility of the statements made amongst defendant, Harris,

and Thomas. During the hearing, defendant's trial counsel cross-examined

Thomas about the statements but did not argue for their exclusion.

Following the hearing, the trial court found the statements to have been

made voluntarily and reliably in furtherance of a conspiracy for which there was

independent evidence produced by the State. The court found:

There has been ample evidence brought by the State to date showing[,] . . . in conjunction with the statements made by . . . Thomas . . . in furtherance of a conspiracy.

The . . . statements were made, specifically first, "[H]e right there" . . . [and also] "The one with the dreads," was stated[,] [referring to the victim]. This was while they were in the minivan[,] according to the witness who testified under oath today.

The witness then testified . . . the minivan was pulled over. Another statement made was, "Do you still want to do it?" That was from . . . Harris to [defendant], according to . . . Thomas. And another statement, "If you don't want to do it, I'll do it." And then [defendant] eventually stated, "I'll do it," according to the witness, . . . Thomas.

....

A-0153-22 5 [Defense counsel] will have the opportunity to cross- examine the witness with regard to the statements. So, for all these reasons [and] under the reasons for bringing a 104(c) hearing under [N.J.R.E.] 803(b), [and] under State v. Phelps[, 96 N.J. 500 (1984),] and its progeny, . . . the statements will be allowed [and] admitted.

After all counsel rested, the court held a jury charge conference. Counsel

agreed to omit that portion of the model jury charge pertaining to "statements of

defendant" where the court would normally "remind . . . or tell the jury . . . what

the statements were." Instead, it was agreed the court would leave the jury to

determine, as part of its fact-finding function, what statements, if any, defendant

actually had made.

The jury returned guilty verdicts on the charges of murder (count two),

possession of a weapon for an unlawful purpose (count three), and unlawful

possession of a weapon (count four). The jury hung on the conspiracy to commit

murder charge (count one), and the State dismissed that charge as to defendant.

Concerning co-defendant Harris, the jury hung on the conspiracy and murder

charges and acquitted him on both gun charges.

In August 2022, the trial court sentenced defendant to a thirty-year term

of imprisonment with thirty years of parole ineligibility for murder (count two),

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Although the court

merged counts three and four with count two, it imposed a sentence of seven

A-0153-22 6 years for possession of a weapon for an unlawful purpose and a sentence of five

years for the unlawful possession of a weapon, both to run concurrently with

count two.

II.

On appeal, defendant raises the following arguments:

I THE JURY SHOULD HAVE BEEN INSTRUCTED THAT IT COULD NOT CONSIDER THE CO[-] CONSPIRATOR'S TESTIMONY CONCERNING STATEMENTS PURPORTEDLY MADE IN THE COURSE OF THE ALLEGED CONSPIRACY TO COMMIT MURDER UNLESS IT FOUND INDEPENDENT EVIDENCE OF THE ALLEGED CONSPIRACY.

II THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE UNDER COUNT [THREE] WAS PROPERLY MERGED WITH THE CONVICTION FOR MURDER; ACCORDINGLY, THE SENTENCE IMPOSED ON COUNT [THREE] MUST BE VACATED.

III THE CONVICTION FOR POSSESSION OF A WEAPON WITHOUT A PERMIT UNDER COUNT [FOUR] WAS ERRONEOUSLY MERGED WITH THE CONVICTION FOR MURDER AND SHOULD BE VACATED, LEAVING DEFENDANT TO SERVE THE LAWFUL SENTENCE IMPOSED ON COUNT [FOUR].

We review the trial court's evidentiary rulings with deference. State v.

Hyman, 451 N.J. Super. 429, 441 (App. Div. 2017). Specifically, a trial court's

decision to exclude or admit evidence under the hearsay rules is reviewed for an

A-0153-22 7 abuse of discretion. Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.

369, 383-84 (2010). An abuse of discretion is found only when the court has

made "a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988).

The court's evidentiary decision should be sustained unless it resulted in a

"manifest denial of justice." State v. Perry, 225 N.J. 222, 233 (2016) (quoting

State v. Marrero, 148 N.J. 469, 484 (1997)).

Further, it is well established that "[w]hen a defendant does not object to

an alleged error at trial, such error is reviewed under the plain error standard."

State v. Singh, 245 N.J. 1, 13 (2021). The plain error standard requires a

determination of: "(1) whether there was error; and (2) whether that error was

'clearly capable of producing an unjust result,' R. 2:10-2; that is, whether there

is 'a reasonable doubt . . . as to whether the error led the jury to a result it

otherwise might not have reached[.]'" State v. Dunbrack, 245 N.J. 531, 544

(2021) (quoting State v. Funderburg, 225 N.J. 66, 79 (2016)). "To determine

whether an alleged error rises to the level of plain error, it 'must be evaluated in

light of the overall strength of the State's case.'" State v. Clark, 251 N.J. 266,

287 (2022) (quoting State v. Sanchez-Medina, 231 N.J. 452, 468 (2018)).

Finally, "[a]ppellate courts review sentencing determinations in

accordance with a deferential standard." State v. Fuentes, 217 N.J. 57, 70

(2014). We review the legality of a sentence de novo, "affording no special

A-0153-22 8 deference to the court['s] interpretation of the relevant statutes." State v. Nance,

228 N.J. 378, 393 (2017). We may correct an illegal sentence "at any time before

it is completed." State v. Murray, 162 N.J. 240, 247 (2000); see also R. 3:21-

10(b). If a defendant's sentence is illegal, it must be remanded for resentencing.

See State v. Romero, 191 N.J. 59, 80-81 (2007).

Statements in Furtherance of a Conspiracy

Defendant argues that in its final charge, the court should have instructed

the jury that unless it found independent evidence of a conspiracy, it should not

consider the co-conspirator's testimony concerning statements purportedly made

in furtherance of that alleged conspiracy. By extension, he argues that because

the jury did not convict him of conspiracy, admission of Thomas's testimony

violated his right to a fair trial.

In assessing these arguments, we consider our pertinent legal principles.

"Where two or more persons are alleged to have conspired to commit a crime,

any statement made by one during the course of and in furtherance of the

conspiracy is admissible in evidence against any other member of the

conspiracy." State v. Harris, 298 N.J. Super. 478, 487 (App. Div. 1997).

"Participation in a conspiracy confers upon co-conspirators the authority to act

in one another's behalf to achieve the goals of the unlawful scheme. Since

conspirators are substantively liable for the acts of their co-conspirators, they

A-0153-22 9 are equally responsible for statements by their confederates to further the

unlawful plan." Ibid.

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

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted." State v. Buda, 195 N.J. 278, 293 (2008); N.J.R.E. 801(c).

Hearsay is inadmissible unless it falls within one or more of the exceptions

enumerated in the evidence rules. State v. Branch, 182 N.J. 338, 348 (2005). A

statement is not excluded by the hearsay rule if it was "made at the time the

[party] and the declarant were participating in a plan to commit a crime . . . and

. . . made [it] in furtherance of that plan." N.J.R.E. 803(b)(5).

To admit a statement of a co-conspirator in evidence, the State must prove

that “[f]irst, the statement [was] made in furtherance of the conspiracy. Second,

the statement [was] made during the course of the conspiracy. Lastly, [there] is

evidence, independent of the hearsay, of the existence of the conspiracy and

defendant's relationship to it." State v. Taccetta, 301 N.J. Super. 227, 251 (App.

Div. 1997); see also Harris, 298 N.J. Super. at 488. "A statement is considered

to have been made 'in furtherance of the conspiracy' if the statement 'serves a

current purpose such as to promote cohesiveness, provide reassurance to a co-

conspirator or prompt one . . . to respond in a way that furthers the goal of the

A-0153-22 10 conspiracy.'" State v. Canfield, 470 N.J. Super. 234, 333 (App. Div. 2022)

(quoting State v. James, 346 N.J. Super. 441, 457-58 (App. Div. 2002)).

Before admitting a co-conspirator's statement, a "trial court must make a

preliminary determination of whether there is independent proof of the

conspiracy." State v. Savage, 172 N.J. 374, 403 (2002); see also N.J.R.E.

104(a)(1) ("The [trial] court shall decide any preliminary question about whether

a witness is qualified, a privilege exists, or evidence is admissible. In so

deciding, the court is not bound by evidence rules, except those on privilege and

[N.J.R.E.] 403."). The independent evidence can take various forms and "must

be substantial enough to engender a strong belief in the existence of the

conspiracy and of the defendant's participation." Phelps, 96 N.J. at 511. "[T]he

appropriate test [is] whether the prosecution has demonstrated by a fair

preponderance of evidence that the conspiracy existed and that the defendant

participated in it." Id. at 518.

The Phelps Court emphasized "the trial court alone determines whether

the conditions precedent to admission of co[-]conspirator hearsay have been

satisfied. These conditions . . . focus on the reliability of the hearsay and not its

relevance." Id. at 513-14. "Having the trial court rather than the jury evaluate

reliability before admitting or rejecting evidence recognizes the judge's skill and

experience." Id. at 515. "It is too much to expect jurors to be able to disregard

A-0153-22 11 evidence they have already properly heard upon their determination at some later

time that conditions precedent to admissibility have not been fulfilled." Id. at

516; see also id. at 515 n.3 (rejecting the argument that having the court decide

admissibility of a co-conspirator's statement interferes with the jury's fact-

finding function and explaining that "[t]he trial court's decision concerning

whether evidence is admissible does not decide the guilt or innocence of the

defendant," which remains "the jury's task.")

Importantly, the Phelps Court also rejected the contention that a co-

conspirator's hearsay statements may be considered by the jury only in

determining the conspiracy charge. Id. at 516. The Court explained, "the

evidence may be relevant on substantive issues other than conspiracy" and

"[o]nce the statement is admitted, it may properly be considered by the jury on

all matters with respect to which the statement is relevant." Ibid.

Here, the trial court followed the precepts of case law and the Rules of

Evidence. First, it held a Rule 104(c) hearing, making preliminary

determinations about the admissibility of hearsay evidence in accordance with

N.J.R.E. 803(b)(5). The court reasonably found the statements had strong

indicia of reliability and that there was "ample evidence brought by the State"

showing "that the statement[s] w[ere] made . . . during the course of a

conspiracy" and in furtherance of a conspiracy. It also found there to be reliable

A-0153-22 12 independent evidence of the conspiracy in the form of video, law enforcement

testimony, and physical evidence. In admitting statements by defendant and

Harris, the trial court properly applied the Supreme Court's holdings in Phelps

and Cagno. State v. Cagno, 211 N.J. 488 (2012). We see no error of judgment

or abuse of discretion.

The jury's inability to reach a verdict as to the conspiracy does not nullify

the trial court's decision to admit statements in furtherance of a conspiracy. As

the Court in Phelps observed, a co-conspirator's hearsay statements "may be

relevant on substantive issues other than conspiracy," such as the murder charge

in this case. See Phelps, 96 N.J. at 516 (citing State v. Louf, 64 N.J. 172, 176

(1973); State v. Yormark, 117 N.J. Super. 315, 336 (App. Div. 1971)).

Defendant next argues that the trial court committed reversible error by

failing to administer a tailored instruction that would have allowed the jury to

effectively reject the judge's findings (made out of the jury's presence) as to

independent evidence of a conspiracy. In other words, defendant argues it was

ultimately for the jury -- not the trial court -- to determine if there was

independent evidence of a conspiracy. In support of this position, defendant

relies on a dissenting opinion by Justice Handler in Phelps. The dissenting

Justice was concerned that "[i]f the judge alone resolves the preliminary

questions of the admissibility of the alleged co-conspirator's testimony, there is

A-0153-22 13 the possibility that the defendant has been deprived of trial by jury on a critical

question of fact." Id. at 528 (Handler, J., dissenting) (internal quotations

omitted). In the dissenting Justice's view, "remov[ing] from the jury the issue

of independent proof of the conspiracy relegates to the judge instead the task of

resolving the central issue of guilt – a result inconsistent with the long-protected

jury role." Id. at 534 (Handler, J. dissenting); see State v. Simon, 79 N.J. 191,

199 (1979) ("In the trial of a criminal cause, the ultimate responsibility for

determining guilt or innocence reposes solely in the jury and cannot be

preempted or dislodged by the court."). To ensure that the jury made the

essential finding of fact, the dissent concluded "that the jury, in its final

determination of the ultimate guilt or innocence of the defendant, should have

been instructed to disregard the hearsay conversations if it found that …

independent proof of a conspiracy was lacking." Phelps, 96 N.J. at 524

(Handler, J., dissenting).

The standard of review for a missing jury instruction, when, as here, a

defendant did not object at trial, is whether there was plain error "clearly capable

of producing an unjust result." R. 2:10-2. In review of the record, we perceive

nothing in the facts and circumstances that goes beyond the standard model jury

charge that would require special instructions. See generally, State v. Angoy,

329 N.J. Super. 79, 85 (App. Div. 2000) (when finding "the facts of the case and

A-0153-22 14 the claims of the State and the defense [are] quite clear[,]" the failure to tailor

the charge is not prejudicial error). Moreover, we note that the authority

defendant offers for such instruction rests on dissenting views, not the majority

holding in Phelps. We are satisfied that the charge as given provided the jury

with "sufficient guidance" and did not create any "risk that the [ ] ultimate

determination of guilt or innocence [was] based on speculation,

misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567 - 68 (1991).

Sentence Imposed

Defendant argues the trial court erred in sentencing defendant on counts

three and four, the weapons offenses. He asks this court to vacate the sentence

for the possession of a weapon for an unlawful purpose as that conviction was

properly merged with the murder conviction. He also asks us to reverse the

merger of the unlawful possession of a weapon charge with the murder charge.

The State agrees.

In State v. Diaz, our Supreme Court held "[w]hen the only unlawful

purpose in possessing the [weapon] is to use it to commit the substantive offense,

merger is required." 144 N.J. 628, 636 (1996). "When the jury is explicitly

instructed that the unlawful purpose was to use the gun against the victim of the

substantive offense . . . merger is required notwithstanding that the evidence was

sufficient to support a separate unlawful purpose." Id. at 641. This principle

A-0153-22 15 was reaffirmed in Tate, where the court merged the convictions because the

defendant "had no broader unlawful purpose for possessing the weapon." State

v. Tate, 216 N.J. 300, 313 (2013).

"[T]he failure to merge convictions results in an illegal sentence for which

there is no procedural time limit for correction" because merger implicates a

defendant's substantive state constitutional right against double jeopardy.

Romero, 191 N.J. at 80. Thus, "a reviewing court is not free to ignore an illegal

sentence," State v. Moore, 377 N.J. Super. 445, 450 (App. Div. 2005), and

should correct it, State v. Tavares, 286 N.J. Super. 610, 617 (App. Div. 1996).

Here, the court properly merged the possession of a weapon for an

unlawful purpose charge with the murder charge. Therefore, the court should

not have imposed a separate sentence on that weapon charge. Further, the court

erred in merging the unlawful possession of a handgun without a permit charge

with the murder charge because that weapon charge required proof of a separate

element. Thus, the sentence imposed for that weapon charge remains.

In sum, we affirm the murder conviction and the sentence the court

imposed for that conviction. We affirm the convictions on the weapons charges.

Because the trial court erred in imposing a sentence based on the possession of

a weapon for an unlawful purpose conviction, after it properly merged that

conviction with the murder conviction, we vacate the sentence imposed on the

A-0153-22 16 possession of a weapon for an unlawful purpose conviction. Although the court

erred in merging the unlawful possession of a handgun without a permit

conviction with the murder conviction, the sentence of five years with a

mandatory parole disqualifier of three and one-half years running concurrent

with the sentence for murder imposed by the court is lawful, and we affirm that

sentence. We remand and direct the trial court to amend the judgment of

conviction accordingly.

Affirmed in part, vacated in part, and remanded for correction of the

judgment of conviction. We do not retain jurisdiction.

A-0153-22 17