NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1628-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAMAJ R. LEMMON,
Defendant-Appellant. _______________________
Argued January 5, 2022 – Decided January 27, 2022
Before Judges Sabatino, Mayer and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Indictment No. 17-06-0632.
Marissa Koblitz Kingman, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Jodi Ferguson, Assistant Deputy Public Defender, Marissa Koblitz Kingman and Marc M. Yenicag, Designated Counsel, on the briefs).
Ali Y. Ozbek, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Ali Y. Ozbek, of counsel and on the brief). PER CURIAM
This multi-issue direct criminal appeal arises out of a gang-related fatal
shooting. After a jury trial, defendant Tamaj Lemmon was found guilty of first-
degree murder of Vishon Randolph, N.J.S.A. 2C:11-3(a) (count one), and other
crimes. Randolph was the reputed member of a rival gang. The State's theory
was that defendant shot and killed Randolph, and took part in attacking two of
Randolph's companions, Tyshawn Daniels and Zimere Kellam, all in retaliation
for the recent killing of a member of defendant's own gang.
In addition to Randolph's murder, the jury found defendant guilty of
second-degree possession of a handgun for an unlawful purpose against
Randolph, N.J.S.A. 2C:39-4(a)(1) (count two); second-degree possession of a
handgun for an unlawful purpose against Daniels, N.J.S.A. 2C:39-4(a)(1) (count
three); second-degree unlawful possession of a handgun without a permit,
N.J.S.A. 2C:39-5(b)(1) (count four); second-degree possession of a weapon for
an unlawful purpose against Kellam, N.J.S.A. 2C:39-4(a)(1) (count six); and the
lesser-included offense of third-degree aggravated assault of Kellam, N.J.S.A.
2C:12-1(b)(7) (count seven). The jury acquitted defendant on count five, which
had charged him with first-degree attempted murder of Daniels, N.J.S.A. 2C:5-
1(a)(1) and N.J.S.A. 2C:11-3(a)(1).
2 A-1628-18 The trial judge imposed a sixty-year custodial sentence, subject to the
parole ineligibility period of the No Early Release Act ("NERA"), N.J.S.A.
2C:43-7.2, for Randolph's murder and other offenses merged into the murder.
The judge also imposed a consecutive nine-year NERA term for Kellam's
aggravated assault, and another consecutive five years for the weapons offense
associated to Daniels. Defendant's aggregate sentence therefore is seventy-four
years, subject to NERA.
On appeal, defendant presents a host of issues concerning both his
conviction and sentence. Having fully considered his arguments, we affirm.
I.
As shown by the State's proofs, the shooting and the other offenses arose
out of a feud between factions of the "UTH" and "DTH" gangs 1 in Paterson. The
"UTH" gang included a subgroup called "23XB," of which defendant Tamaj
Lemmon was a member. The "DTH" gang included subgroups called the "GND"
and the "BSQ". The homicide victim, Randolph, was associated with the BSQ.
Randolph was also in the "SCMB," which the State alleged was also affiliated
with "DTH", but which the defense claimed was merely a rap music group.
1 We choose to use pseudonyms for the gang names.
3 A-1628-18 According to the State, defendant's shooting of Randolph was in
retaliation for a GND member's killing of Kasir Davis, a member of 23XB, about
a month earlier. The State's proofs at trial showed that on the night of
Randolph's shooting, defendant and others in 23XB went to a party at a bar.
Defendant saw Randolph at the party and, according to the State's witness, asked
Randolph if he was affiliated with GND. Randolph reportedly said he was not
but admitted to defendant he was on good terms with the members of GND.
After police broke up the party, Randolph started walking home with two
friends, Kellam and Daniels. On the street, defendant and another man (Kamari
Benbow) approached the trio from behind. Defendant and Benbow fired shots
at the trio, causing Randolph to fall to the ground and hitting Kellam in the
buttocks. Defendant then stood over Randolph and fired two or three more shots
at him, point-blank. Randolph died from the gunshot wounds. Kellam survived
the shot in his buttocks and fled with Daniels who was not hurt. Defendant and
Benbow also fled.
The incident on the street was filmed by outdoor surveillance cameras
operated by local businesses. The prosecution prepared a sixteen-minute
composite video of that footage, which was shown to the jury.
4 A-1628-18 The police arrested defendant a few days later at his residence. They
found defendant hiding in his basement boiler room. The police found a loaded
handgun on the floor of the boiler room, although that gun was not used in the
street shooting. According to defendant, the officers used excessive force when
they arrested him.
Defendant was charged with Randolph's murder and other crimes. The
court severed the additional charges arising from defendant's arrest. 2
A hostile encounter later occurred at the courthouse between defendant
and a sheriff's officer, Cooper. During that encounter, defendant admitted to
murdering Randolph and added that if he were out on the street he would "do
[Cooper's] stupid ass, too." Defendant filed a complaint against Cooper,
alleging that Cooper threatened him, which resulted in Cooper himself being
criminally charged with terroristic threats.
2 Specifically, the severed charges included counts: second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count eight); second-degree unlawful possession of a weapon with a permit, N.J.S.A. 2C:39- 5(b)(1) (count nine); third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10(a)(1) (count ten); third-degree possession of a CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count eleven); second-degree possession of a weapon while committing certain CDS offenses, N.J.S.A. 2C:39-4(a)(1) (count twelve); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (count thirteen).
5 A-1628-18 The State obtained a sworn statement from Kellam inculpating defendant
in the shooting of Randolph. Kellam later wrote a letter recanting his police
statement, but thereafter repudiated the recantation and said he had written it
under duress.
The State's case hinged largely on the surveillance video, testimony from
Kellam and Daniels, and defendant's admission to Cooper. No DNA,
fingerprint, or other forensic evidence tied defendant to the shooting. The guns
used in the shooting were never recovered.
Defendant testified at trial and denied taking part in or being present at
the shooting or any involvement in the other offenses.
As we noted in the introduction, the jury found defendant guilty of
murdering Randolph, unlawful purpose gun possession charges with respect to
Daniels, and the lesser-included offense of third-degree aggravated assault of
Kellam.
On appeal, defendant presents the following arguments in his brief:
POINT I:
THE ADMISSION OF IRRELEVANT, HIGHLY PREJUDICIAL EVIDENCE OF LEMMON’S AND THE VICTIM’S GANG AFFILIATIONS, PURPORTEDLY ON THE ISSUE OF MOTIVE, VIOLATED N.J.R.E. 404(B) AND WAS SO HIGHLY
6 A-1628-18 PREJUDICIAL AS TO DEPRIVE LEMMON OF HIS RIGHT TO A FAIR TRIAL.
A. THE FIRST PRONG UNDER [STATE V.] COFIELD[3] WAS NOT MET BECAUSE GANG AFFILIATION WAS NOT RELEVANT TO ESTABLISH MOTIVE.
B. THE FOURTH PRONG UNDER COFIELD WAS NOT MET.
POINT II:
THE TRIAL COURT ERRONEOUSLY ADMITTED IRRELEVANT, HIGHLY PREJUDICIAL EVIDENCE THAT LEMMON WAS FOUND WITH A LOADED GUN AT THE TIME OF HIS ARREST IN CONTRAVENTION OF N.J.R.E. 404(B) AND 403, WHICH DEPRIVED LEMMON OF HIS RIGHT TO A FAIR TRIAL.
A. THE FIRST PRONG UNDER COFIELD WAS NOT MET.
C. EVEN IF DEFENSE COUNSEL "OPENED THE DOOR," EVIDENCE THAT LEMMON WAS FOUND WITH A LOADED GUN AT THE TIME OF HIS ARREST SHOULD NEVERTHELESS NOT HAVE BEEN ADMITTED PURSUANT TO N.J.R.E. 403.
3 127 N.J. 328 (1992).
7 A-1628-18 POINT III
THE TRIAL COURT ERRONEOUSLY ADMITTED IRRELEVANT, HIGHLY PREJUDICIAL STATEMENTS BY LEMMON, WHICH WERE PREVIOUSLY EXCLUDED BY THE TRIAL COURT.
POINT IV
THE STATE DID NOT PROPERLY AUTHENTICATE THE VIDEO COMPILATION.
POINT V
THE PROSECUTOR ELICITED IMPROPER LAY OPINION TESTIMONY AS TO THE CONTENTS OF THE SURVEILLANCE VIDEO.
POINT VI
THE TRIAL COURT ERRONEOUSLY ALLOWED THE JURY UNFETTERED ACCESS TO THE VIDEO COMPILATION DURING THEIR DELIBERATIONS.
POINT VII
THE PROSECUTOR COMMITTED MISCONDUCT DURING HIS SUMMATION, AND VIOLATED LEMMON’S RIGHT TO A FAIR TRIAL BY ASSERTING FACTS NOT ESTABLISHED IN EVIDENCE, APPEALING TO THE JURY’S EMOTIONS, AND UTILIZING EVIDENCE OUTSIDE THE SCOPE OF ITS PERMISSIBLE PURPOSE.
8 A-1628-18 POINT VIII
THE TRIAL COURT’S JURY INSTRUCTIONS RELATING TO THE PERMISSIBLE USE OF GANG AFFILIATION EVIDENCE AND EVIDENCE THAT LEMMON WAS FOUND HIDING WITH A LOADED GUN WERE ERRONEOUSLY DEFICIENT.
POINT IX
BECAUSE OF INDIVIDUAL AND CUMULATIVE ERROR, THIS COURT SHOULD REMAND FOR A NEW TRIAL.
POINT X
THE SENTENCING JUDGE ABUSED HER DISCRETION BY IMPOSING CONSECUTIVE SENTENCES IN VIOLATION OF STATE V. YARBOUGH.[4]
Some of these issues were not raised, or fully raised, below. With respect
to those particular issues, our review is guided by the "plain error" standard and
by the principles of Rule 2:10-2, which prescribes that "[a]ny error or omission
shall be disregarded by the appellate court unless it is of such a nature as to have
been clearly capable of producing an unjust result[.]" (Emphasis added). See
also State v. Macon, 57 N.J. 325, 338 (1971) (characterizing our court's "plain
error" review as a question of "whether in all the circumstances there was a
4 100 N.J. 627 (1985)
9 A-1628-18 reasonable doubt as to whether the error denied a fair trial and a fair decision on
the merits[.]")
As for the issues on which defendant brought an alleged error to the trial
court's attention, the error "will not be grounds for reversal [on appeal] if it was
'harmless error.'" State v. J.R., 227 N.J. 393, 417 (2017) (quoting State v.
Macon, 57 N.J. 325, 337-38 (1971)). In order for an error to be reversible under
the harmless error standard, "[t]he possibility [of the error leading to an unjust
result] must be real, one sufficient to raise a reasonable doubt as to whether [the
error] led the jury to a verdict it otherwise might not have reached." State v.
Lazo, 209 N.J. 9, 26 (2012) (quoting State v. R.B., 183 N.J. 308, 330 (2005)).
II.
We first consider the four issues defendant's counsel chose to emphasize
during the appellate oral argument.
A. (Loaded Gun Evidence and Limiting Instruction)
Defendant contends the trial court erred in admitting testimony it had
originally disallowed about the loaded gun police found near him in the
basement boiler room at the time of his arrest. He argues this evidence was
highly prejudicial because the seized gun was not used in the shooting. He
further argues the trial court's limiting instruction as to this evidence was
10 A-1628-18 inadequate. We reject these contentions, mainly because defendant's trial
attorney, despite having obtained a pretrial ruling to bar the gun evidence,
"opened the door" to admit it.
This is the pertinent background. Before trial, the court filed a consent
order severing counts eight through thirteen of the indictment, which had
charged defendant with crimes arising out of his arrest, including his
constructive possession of the gun. The State did reserve the right to elicit
testimony regarding the gun if the defense opened the door to such testimony.
Defendant had been arrested at his residence by Detective Angel Perales
of the County Prosecutor's Office. On direct examination, Perales did not
mention the gun, adhering to the pretrial order. During his cross-examination
of Perales, defense counsel asked whether police had obtained any arrest or
search warrants before proceeding to defendant's home, and, since he was a
suspect, whether they had intended to arrest him there.
Later, when defense counsel raised the subject of warrants again, the
prosecutor objected, arguing that defense counsel had opened the door to
testimony regarding the gun in the boiler room. The trial court at that point
disagreed, but did caution defense counsel about pursuing this line of
questioning. The court admonished that defense counsel was "treading
11 A-1628-18 dangerously close to areas that we shouldn't get into," and that it did not "want
to open the door" because "it's to the detriment of your client."
Thereafter, defendant on direct examination described what he
characterized as his violent arrest. He also testified that he had never owned or
handled a gun. At that point, the prosecutor renewed his request for permission
to bring up the gun on cross-examination. The prosecutor noted defendant had
just told the jury that the police had first attacked him and then arrested him for
reasons they allegedly refused to disclose. The prosecutor argued that this
testimony presented by the defense, coupled with defendant's claim that he was
totally unfamiliar with guns, had opened the door for the State to reveal the
reason for defendant's arrest.
The trial court agreed that the defense had opened the door to admit the
gun evidence. Although defendant knew he had been arrested because of the
gun, he had made it seem to the jury as though he was just going about his day
when he was suddenly and arbitrarily assaulted and arrested. The court noted
that, up to this point, no testimony had emerged that there was a gun in the boiler
room near defendant at the time of his arrest.
The court emphasized it had tried to maintain the integrity of the trial and
ensure that the defendant's constitutional rights were protected. It noted that it
12 A-1628-18 had not permitted the State to present evidence that defendant was charged with
making terroristic threats to law enforcement officers, because of the prejudice
to him.
The court then ruled as follows:
Now we have a situation where the defendant has painted a picture that he was innocently standing in his boiler room when he was arrested and physically assaulted by the police officers for no reason.
In fact, [since] the circumstances of the arrest have now been put out there by defendant[,] to tie the State's hands and not allow them to present their version of the events of the arrest, would be prejudicial to the State.
And this Court has to ensure the integrity of the trial by being fair to both sides. And [defense counsel] has clearly opened the door to this issue by eliciting . . . testimony from his client. . . [w]hich ha[s] painted a false impression of the circumstances of the arrest to the . . . jury.
And to preclude the State from being able to present their version of the facts would be unfair. And it would be a prejudice to the State.
So, I am going to allow the State to cross- examine defendant about the circumstances of his arrest including the fact that a gun was located in the boiler room where the defendant was present.
[(Emphasis added).]
13 A-1628-18 Although defense counsel disagreed with the court's ruling, the court reiterated
that counsel had elicited the at-issue testimony and thereby created a "falsehood"
which in fairness had to be addressed by the State.
Thereafter, on cross-examination, defendant testified that he was
surprised by police while in the doorway to the boiler room. He denied that he
was hiding in the corner of the room. He also denied that he kept his left hand
down when he was confronted by Perales and insisted that there was no gun
found near his left hand. Defendant did not change his account when the
prosecutor showed him a photo of the alleged gun on the boiler room floor.
At this point, and without any objection from defense counsel, the trial
court instructed the jury as follows:
In this case, the State has introduced evidence that the defendant was arrested on 4/24/17 because the police observed a gun on the floor in the boiler room where the defendant was present.
The Court is allowing this testimony for the limited purpose of explaining the State's position as to the circumstances of the arrest of the defendant on 4/24/17. There is no dispute that the weapon recovered is not the weapon involved in the alleged offenses.
The defendant has given his account of the facts surrounding his arrest and the State is now giving their account. Whether this testimony does in fact explain the circumstances of the defendant's arrest is for you to decide.
14 A-1628-18 You may not, however, use this testimony as substantive evidence or proof of the underlying charges. I further instruct you that you may not use this evidence to decide [that] . . . defendant has a tendency to commit crimes or that he is a bad person.
That is, you may not decide that just because there allegedly may have been a gun in the boiler room where the defendant was present when he was arrested that the defendant must be guilty of the crimes. I have admitted the evidence only to help you consider the specific circumstances of the defendant's arrest.
You may not utilize this evidence for any other purpose and may not find the defendant guilty of the underlying offenses simply because the court has allowed this testimony.
On redirect, defendant insisted that: (1) police were rough with him; (2)
he was in the doorway to the boiler room, not actually in the room, when the
police arrived; (3) there was no gun near his left hand; (4) he did not put a gun
in the boiler room and was not aware that one was there; and (5) he did not have
a permit for a gun and was unaware that there was a gun in the house.
Following defendant's testimony, the prosecutor recalled Perales to the
stand. Perales testified that, as he got his hands on defendant in the boiler room
and threw him down, he noticed a Smith & Wesson revolver on the floor.
Perales stated that defendant could have easily grabbed this gun, which was later
15 A-1628-18 determined to be loaded, if he had dropped to his knees. Perales confirmed that
the gun was not the murder weapon.
Based on the circumstances as they unfolded, we conclude the trial court
did not err in allowing the gun evidence, nor in its application of "opening the
door" evidentiary principles.
The "opening the door" doctrine is a "rule of expanded relevancy" through
which otherwise irrelevant or inadmissible evidence may sometimes be admitted
if the "opposing party has made unfair prejudicial use of related evidence." State
v. James, 144 N.J. 538, 554 (1996) (citing United States v. Lum, 446 F.Supp
328 (D.Del.), aff'd, 605 F.2d 1198 (3rd Cir. 1979)). In criminal cases, the
doctrine "operates to prevent a defendant from successfully excluding from the
prosecution's case-in-chief inadmissible evidence and then selectively
introducing pieces of this evidence for the defendant's own advantage, without
allowing the prosecution to place the evidence in its proper context." Ibid.
(citing Lum, 466 F.Supp. at 334-35). The doctrine is limited by N.J.R.E. 403,
thus evidence to which a defendant has "opened the door" may still be excluded
if a court finds that its probative value is substantially outweighed by the risk of
undue prejudice. Ibid.
16 A-1628-18 Defendant now contends the gun evidence should have been excluded as
prior "bad act" evidence under N.J.R.E. 404(b) and as unduly prejudicial under
N.J.R.E. 403. We disagree.
It was not necessary for the court to analyze the gun evidence under
N.J.R.E. 404(b), as it had already been excluded from the case under the pretrial
order when the parties agreed to sever counts eight through thirteen of the
indictment from this case. After defense counsel disregarded this limitation and
the trial court's warning, and opened the door to circumstances of the arrest, the
court reasonably determined the gun evidence had newly enhanced probative
value. As the court justifiably noted, once defense counsel opened the door, the
State was entitled to present its own version of the arrest and counteract a
potentially false impression made by the defense. That probative value was not
substantially outweighed by its prejudicial effect.
Perales's testimony about the gun as a recalled witness for the State was
appropriate, after defendant in his own testimony had steadfastly denied any
awareness of the gun. While the fact that the gun was loaded may not have been
essential to Perales's description of the arrest, that fact did confirm the threat
posed to police at the scene.
17 A-1628-18 Defendant argues the prosecution, in its pursuit of justice, and the trial
court, as a neutral arbiter of his trial, should have prevented the jury from
learning about the gun. But these arguments fail because it was defense
counsel's own choice to inject into the case the circumstances of the arrest and
to present a claim and theme of police mistreatment.
The pretrial order disallowing the gun evidence at the severed trial was
designed for defendant's benefit. Defense counsel nevertheless elected at trial
to forego that benefit and delve into the facts surrounding the arrest before the
jury. We need not speculate here what reasons prompted defense counsel's
strategy. Regardless of the nature or wisdom of that strategy, the defense opened
the door to allow the State to present counterproofs, including the gun.
Relatedly, defendant contends for the first time on appeal that the trial
court's limiting instruction about the gun was inadequate. We disagree. As a
preliminary matter, a trial court's curative jury instructions are reviewable only
for an abuse of discretion. State v. Herbert, 457 N.J. Super. 490, 503 (App. Div.
2019). Here, the instruction was clear, direct, and timely. See State v. Vallejo,
198 N.J. 122, 134-36 (2009) ("Generally, for an instruction to pass muster in
such circumstances, it must be firm, clear, and accomplished without delay.").
It appropriately informed the jury the gun had not been used in the shooting. It
18 A-1628-18 explained the limited uses for which the jury could consider the evidence. The
instruction was repeated in the final jury charge, again without objection. We
must presume the jury followed the court's instructions. See State v. Herbert,
457 N.J. Super. 490, 504 (App. Div. 2019) (subject to certain rare exceptions,
"[t]he authority is abundant that courts presume juries follow instructions[.]")
B. (Defendant's Statements to the Sheriff's Officer)
Defendant contends the trial court erred in admitting previously excluded
threatening statements and admissions he allegedly made at the courthouse to a
Passaic County Sheriff's Security Officer, Fidel Cooper. This, too, is an instance
of defense counsel opening the door for the State to present competing proofs.
The doctrine of completeness further justifies admitting the State's evidence.
The relevant background is as follows.
As described by Officer Cooper, at 9:00 a.m. on May 22, 2018, he
transported defendant by elevator within the courthouse to the holding area
adjacent to the courtroom. He had never met defendant before. Upon arrival,
defendant initially resisted Cooper's requests for him to step into the holding
cell because he was accustomed to waiting in a conference room for court
proceedings to begin. When defendant finally complied, Cooper advised fellow
19 A-1628-18 Security Officer Herman Vega that they had arrived, and Vega told him to take
defendant to the conference room instead.
According to Cooper, while he and defendant were alone in the conference
room, defendant said, "You're a fucking . . . rookie. You see, I told you that I
always get dressed in here". Although Cooper told him to be quiet, defendant
continued to curse at and insult him and then nonchalantly said, "I'm here for
murder" and "I did that shit, and I'm going to beat that shit". As recounted by
Cooper, defendant also said that: (1) Cooper "wouldn't have been acting like this
if [Cooper] was on the street"; and (2) "he would do [Cooper's] stupid ass too".
Cooper immediately summoned Vega to report defendant's statements.
When Vega came in, defendant was still cursing at Cooper, but then he stopped
and screamed, "Oh, [Cooper's] going to kill me. [He's] going to kill me". Vega
told defendant to calm down.
Cooper related that defendant subsequently filed a complaint against him
alleging that Cooper had threatened him by saying, "Shut the fuck up, you little
piece of shit," and "I hope your little stupid ass win your trial so I can kill you
myself since you think you're getting away with murder". Cooper denied
threatening defendant. As a result of defendant's complaint, Cooper was
20 A-1628-18 charged with third-degree terroristic threats, which exposed him to a possible
five-year prison term and the loss of his job.
Vega testified that he heard defendant call Cooper a "fucking rookie," and
confirmed that Cooper advised him of defendant's confession and threats. Vega
stated that he heard defendant say in a monotone voice, "Help, he's going to kill
me. He threatened to kill me". Vega did not hear Cooper threaten defendant.
Prior to trial, the State sought the admission of these two sets of statements
allegedly made by defendant to Cooper on May 22, specifically: (1) "You ain't
read my charges, rookie. I'm here for murder and I did that shit and I'm gonna
beat that shit;" and (2) "You're only acting tough 'cause I'm shackled. You
wouldn't be acting like that if we were on the streets 'cause I would do your
stupid ass, too".
Following a hearing during which Cooper and Vega testified, the trial
court ruled that: (1) the first set of statements was admissible as a defendant's
statement against interest under N.J.R.E. 803(c)(25); and (2) the second set of
statements was not admissible because its prejudicial weight sufficiently
exceeded its probative value under N.J.R.E. 403. As to the latter, the court
explained:
If this Court was trying the case regarding the terroristic threats[,] then this Court might be more
21 A-1628-18 inclined to allow th[ose] particular two statements in, if you will. I understand that the State is indicating that it wants that statement in because it's relevant and it's probative, however, it talks about a future act versus a prior act or the act we're talking about here. It talks about a future murder and so for that reason this Court finds that the probative value is outweighed by the prejudicial value to the defendant, so I am not going to allow [it] in[.]
During trial, the court learned that defendant had filed a complaint against
Cooper alleging that Cooper had threatened him, and that Cooper had been
charged with third-degree terroristic threats.
On June 21, 2018, the court cautioned defense counsel that if he asked
Cooper whether he threatened defendant and he denied it, counsel would not be
able to ask any questions regarding the substance of the alleged threats. As the
court initially analyzed the issue, the only way to get in the exact statements
allegedly made by Cooper was through defendant. Defense counsel would not
be allowed to read from the complaint and ask Cooper whether he had made a
particular alleged threat.
A short while later, however, the trial court reconsidered its ruling, relying
upon the doctrine of completeness and the permissible bounds of cross-
examination to assess credibility. On reflection, the court ruled that defense
counsel could cross-examine Cooper as to the specific threats he was accused of
22 A-1628-18 making, but if he "opened the door" in this way, then the previously excluded
threat allegedly made by defendant to Cooper would come in as well. In the
court's view, because the allegations all dealt with reciprocal terroristic threats,
it was an all-or-nothing scenario, and it was up to the jury to determine Cooper's
and defendant's respective credibility.
On the next trial day, the court further explained its ruling concerning the
statements, which it based upon a review of N.J.R.E. 607, N.J.R.E. 611 and
N.J.R.E. 803(c)(25):
Here, the case law makes clear that any party may attack or support the credibility of a witness by direct and cross-examination upon the issues involved. The State here is introducing the alleged conversation that took place between the defendant and Special Officer Cooper . . . . Thus, the State is bringing before this jury the contents of the alleged conversation. Thus, the issue sought to be explored on cross-examination is relevant.
Furthermore, under the doctrine of completeness, the entire alleged conversation should come in. It is for the jury to determine the credibility of the officer and whether the statements were made. The State can surely explore with the witness the fact that the complaint was not filed by the defendant for more than two weeks after . . . the conversation took place. The facts and circumstances surrounding the complaint, such as the timing, are factors the jury can consider in determining the credibility of the alleged threats. In fact, the jury instruction on defendant's statement clearly provide you should take into consideration the
23 A-1628-18 facts and circumstances as to how the statement was made, as well as all other evidence in this case relating to this issue.
Based upon all of the foregoing evidence rules and the case law, this Court will permit the defendant to ask Special Officer Cooper if certain statements were made by him during the alleged exchange on May 22, 2018.
However, should the defendant seek to ask these questions, the Court will allow the State to introduce the statement that the defendant allegedly made to Officer Cooper, [i.e.] that he's lucky he's in shackles, because if they were out on the street, he'd do his ass too.
The State will not, however, be permitted to tell the jury that . . . there is a charge pending against the defendant for terroristic threats.
In addition, the defendant will not be permitted to provide the jury with a copy of the complaint [against Cooper], nor will he be permitted to hold a copy of the . . . [complaint] in his hand in front of the jury while he's questioning him. He can simply ask if certain statements were made.
Thereafter, Cooper testified that, after he denied being familiar with the
charges against defendant, defendant then said, "I'm here for murder," and "I did
that shit, and I'm going to beat that shit". When Vega came in, defendant
24 A-1628-18 stopped cursing at Cooper and screamed, "Oh, you're going to kill me. You're
going to kill me". Cooper denied threatening defendant.
Cooper acknowledged that defendant had filed a complaint against him
alleging that Cooper had threatened him. Cooper denied saying to defendant,
"shut the fuck up, you little piece of shit," and "I hope your little stupid ass win
your trial so I can kill you myself since you think you're getting away with
murder".
Immediately after this testimony, the trial court administered the
following instruction:
Ladies and gentlemen, you've now heard some testimony that this officer was charged with a third- degree offense. This officer enjoys the presumption of innocence, and, therefore, I would instruct you to consider that in your deliberations as well.
In addition, you have provided with, for your consideration, some oral statements that were allegedly made by the defendant. It is your function to determine whether or not the statements were actually made by the defendant, and if made, whether the statements or any portion of the statements are credible.
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 this evidence with caution, based upon 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
25 A-1628-18 used . . . and the ability to remember them are important to the correct understanding of any oral communication because of 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.
In considering whether or not the statement is made or the statements were made, you should take into consideration the circumstances and facts as to how the statements were made, as well as other evidence in this case relating to this issue.
If, after consideration of all the facts, you determine that the statement was not actually made or the statements were not actually made[,] or the statements are not credible, then you must disregard the statements completely.
If you find the statements were made and that part or all of the statements are credible, you may give what weight you think appropriate to the portion of the statements you find to be truthful and credible.
Thereafter, on redirect, Cooper testified that defendant also said to him
that Cooper would not have been acting like this if they were "on the street"
because "he would do my stupid ass too".
Our review of these issues is guided largely by the principles of "opening
the door," which we have already described, supra, in Part II(A), see James, 144
N.J. at 554, and by the doctrine of completeness.
26 A-1628-18 The doctrine of completeness dates back to the common law. Its
principles have been codified, for example, in N.J.R.E. 106. "'Under th[e]
doctrine of completeness [under N.J.R.E. 106], a second writing may be required
to be read if it is necessary to (1) explain the admitted portion; (2) place the
admitted portion in context; (3) avoid misleading the trier of fact, or (4) insure
a fair and impartial understanding.'" State v. Lozada, 257 N.J. Super. 260, 270
(App. Div. 1992) (quoting United States v. Soures, 736 F.2d 87, 91 (3d Cir.
1984)).
"The object of the rule is to permit the trier of the facts to have laid before
it all that was said at the same time upon the same subject matter." State v.
Gomez, 246 N.J. Super. 209, 217 (App. Div. 1991) (citing State v. Wade, 99
N.J. Super. 550, 556-57 (App. Div. 1968)). The determination of whether
fairness requires inclusion of such additional evidence rests in the sound
discretion of the trial court. Lozada, 257 N.J. Super. at 272.
Although N.J.R.E. 106 speaks only to the doctrine of completeness with
respect to writings and recorded statements, the parties agreed at oral argument
that case law extends these principles to oral communications as well. See, e.g.,
James, 144 N.J. at 554 (stating the doctrine applies, among other things, to
27 A-1628-18 conversations); State v. DeRoxtro, 327 N.J. Super. 212, 223 (App. Div. 2000)
(applying it to unrecorded phone calls).
The trial court reasonably applied these principles here. The testimony
shows that defendant and Cooper engaged in heated discussion at the
courthouse. Both of them allegedly made threatening statements, which
defendant voiced while also admitting to having committed a murder. Once
defense counsel opened the door to that exchange, the trial court reasonably
allowed evidence of both participants' alleged words to be considered by the
jury, for context. In addition, the court's limiting instruction was thorough and
clear.
C. (The Detective's Lay Opinion of What Was Shown on the Composite Video)
Defendant contends he was denied a fair trial because of improper lay
opinion testimony from Paterson Police Detective Abdelmonin Hamdeh about
the contents of the compilation of DVD footage from surveillance cameras.
Because this issue was not raised below, we consider it under the plain error
standard. We are satisfied that no error, let alone plain error, occurred.
During Hamdeh's direct testimony, the prosecutor played the compilation
DVD and Hamdeh offered commentary regarding its contents. Hamdeh, in fact,
28 A-1628-18 had reviewed the original surveillance videos as part of his investigation and
had authenticated the composite video for the court.
To help the jury understand what they were looking at, Hamdeh identified
which camera the footage came from, named the streets that were visible in the
footage, pointed out various landmarks such as the bar where the party took
place and the throngs of people standing outside, and cross-referenced a map of
the area which had already been shown to the jury. He also flagged each time
the three victims, who were readily identifiable because of their clothes,
appeared together on camera.
While commenting on the first segment, Hamdeh directed the jury's
attention to two individuals ("suspect one" and "suspect two"), who appeared
together throughout the compilation. He stated that these individuals (whom he
did not name) could be spotted despite the poor quality of the footage because
suspect one was wearing pants with a Nike swoosh symbol on one side, while
suspect two was wearing shoes with white bottoms. He subsequently pointed
out these "suspects" three more times. Hamdeh also noted when suspect one
dropped something in the street in front of Harry and Phil's Auto Wrecking. He
did not identify the dropped item and did not comment on the shooting that
followed.
29 A-1628-18 On cross-examination, defense counsel questioned Hamdeh as follows:
[DEFENSE COUNSEL]: Okay. So, in – the videos that you looked at you were not able to identify any particular individual; were you? I believe you didn't testify that you w[ere] able to identify any individual; correct?
[HAMDEH]: From the videos?
[DEFENSE COUNSEL]: Yes . . . . [D]id you testify that you were able to identify any of the individuals in the videos?
Before Hamdeh could answer, the prosecutor objected and thereafter
argued at sidebar that defense counsel had just opened the door for Hamdeh to
identify suspect one as defendant, an identification Hamdeh had not been
permitted to make during his direct testimony even though he did recognize
defendant in the video. The trial court refused to permit this, but it did chastise
defense counsel for asking questions that were overbroad. The court directed
defense counsel to rephrase his question. Defense counsel then asked Hamdeh
"in your previous testimony you were able to identify the three – individual
victims, correct?" and Hamdeh acknowledged that he had.
The governing principles of lay opinion in this context are well
established. Testimony from a lay witness in the form of opinions or inferences
may be admitted if it is "rationally based on the witness' perception," and "will
30 A-1628-18 assist in understanding the witness' testimony or determining a fact in issue."
N.J.R.E. 701. The purpose of N.J.R.E. 701 is to "ensure that lay opinion is based
on an adequate foundation." State v. Bealor, 187 N.J. 574, 586 (2006) (citing
Neno v. Clinton, 167 N.J. 573, 585 (2001)). Perception "rests on the acquisition
of knowledge through use of one's sense of touch, taste, sight, smell or hearing."
State v. McLean, 205 N.J. 438, 457 (2011).
A non-expert may give his opinion on matters of common knowledge and
observation, Bealor, 187 N.J. at 586, but may not offer an opinion on a matter
"not within [the witness's] direct ken . . . and as to which the jury is as competent
as [the witness] to form a conclusion." McLean, 205 N.J. at 459. Lay opinion
"is not a vehicle for offering the view of the witness about a series of facts the
jury can evaluate for itself[.]" Id. at 462. However, testimony that just involves
the relaying of observed facts does not implicate this Rule. Id. at 460.
Testimony of that type "includes no opinion, lay or expert, and does not convey
information about what the officer 'believed,' 'thought' or 'suspected,' but instead
is an ordinary fact-based recitation by a witness with first-hand knowledge."
Ibid.
Defendant now contends for the first time that Hamdeh's testimony
regarding the contents of the compilation DVD constituted improper lay opinion
31 A-1628-18 testimony. Specifically, he claims that Hamdeh was improperly permitted to
opine that "an individual depicted on one video was the same individual depicted
murdering the victim on another video". He argues that Hamdeh "based his
opinion solely on what he saw in the surveillance video and not on any
information he independently possessed".
In its very recent opinion in State v. Singh, 245 N.J. 1, 17-20 (2021), our
Supreme Court held that although a testifying police officer had improperly
referred to an individual depicted in a surveillance video as "the defendant" in
his narration of that video, the error was harmless since the reference was
fleeting and the officer primarily identified that individual as "the suspect." The
Court directed that, in the future, "in similar narrative situations, a reference to
'defendant,' which can be interpreted to imply a defendant's guilt . . . should be
avoided in favor of neutral purely descriptive terminology such as 'the suspect'
or 'a person.'" Id. at 18.
Here, Hamdeh never identified the individuals depicted on the
surveillance video compilation as "defendants." He did not comment on the
actual shooting. His testimony did not go beyond the evidence gathered in the
case, and it was helpful to the jury given the poor visual quality of portions of
the video. Hamdeh did not, in contravention of Lazo, 209 N.J. at 24, bolster or
32 A-1628-18 vouch for Kellam's testimony about the shooting or the identity of the shooters.
Moreover, the jury was free to disregard Hamdeh's testimony if it so chose. We
discern no plain error that compels a new trial.
D. (The Prosecutor's Comments in Summation)
Defendant contends for the first time on appeal that he was denied a fair
trial as a result of improper comments made by the prosecutor during his closing
argument. Having reviewed the comments in context, we conclude that
defendant, who did not object to them, is not entitled to a new trial on this basis.
A conviction may be reversed based on prosecutorial misconduct only
where the misconduct is so egregious in the context of the trial as a whole as to
deprive the defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 435-38
(2007). When the alleged misconduct involves a particular remark, a court
should consider whether: (1) defense counsel objected in a timely and proper
fashion to the remark; (2) the remark was withdrawn promptly; and (3) the court
gave the jury a curative instruction. State v. Smith, 212 N.J. 365, 403-04 (2012);
State v. Zola, 112 N.J. 384, 426 (1988).
When defense counsel fails to object at trial, a reviewing court may infer
that counsel did not consider the remarks to be inappropriate. State v. Vasquez,
265 N.J. Super. 528, 560 (App. Div. 1993) (citing State v. Johnson, 31 N.J. 489,
33 A-1628-18 511 (1960)). In situations such as the present one, where prosecutorial
misconduct is being raised for the first time on appeal, a reviewing court need
only be concerned with whether "the remarks, if improper, substantially
prejudiced the defendant['s] fundamental right to have the jury fairly evaluate
the merits of [his or her] defense, and thus had a clear capacity to bring about
an unjust result." Johnson, 31 N.J. at 510.
A prosecutor is expected to make a "'vigorous and forceful'" closing
argument to the jury. Lazo, 209 N.J. at 29 (quoting State v. Smith, 167 N.J. 158,
177 (2001)). A prosecutor may make remarks that constitute legitimate
inferences from the facts, provided he or she does not go beyond the facts before
the jury. State v. R.B., 183 N.J. 308, 330 (2005). A prosecutor may also respond
to arguments raised by defense counsel during his or her own summation. State
v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001). A prosecutor may not,
however, make arguments contrary to the material known facts in the case,
regardless of whether that information has been presented to the jury. State v.
Sexton, 311 N.J. Super. 70, 80-81 (App. Div. 1999).
Defendant now argues for the first time that he was prejudiced when the
prosecutor made unsupported and inaccurate factual assertions during his
summation. Specifically, defendant complains that the prosecutor: (1)
34 A-1628-18 repeatedly stated that defendant was depicted in the video compilation, when no
one had actually identified defendant in that video; and (2) misquoted Kellam's
testimony regarding the conversation between Randolph and defendant at the
party by stating Randolph told defendant that he was not in GND, "but those are
my people," rather than "but [I'm] cool with them".
The prosecutor was entitled to infer that defendant was depicted in the
video based upon Kellam and Daniels' description of the murder and the
suspects' attire without having seen the video, Kellam's repeated identification
of defendant as the murderer, and defendant's statements to Cooper. Although
defendant disputes Kellam's identification because he temporarily recanted it,
this identification, which was reaffirmed by Kellam to the police and during his
trial testimony, was part of the record.
Moreover, although the prosecutor did misquote what Randolph said to
defendant at the party, the gist was the same and defendant has not set forth any
specific prejudice resulting from that misquote. As such, the prosecutor's
remarks were a fair comment on the evidence, and the one time he misspoke was
a fleeting error that did not prejudice defendant.
Next defendant contends for the first time that the prosecutor improperly
appealed to the jury's emotions when he stated:
35 A-1628-18 "I did that shit, and I'm going to get away with that shit and if I saw you out on the street I'd do your stupid ass, too." Bold, brazen, heartless. What kind of person would say that, would brag about taking the life of another? What kind of person would threaten an officer during the jury selection portion of his murder trial? Probably the kind of person that's capable of looking [Randolph] in the eyes as he lays helplessly on the ground and firing multiple shots to his face and head.
[Daniels] and [Kellam] were lucky to survive, however, [Randolph] is dead. He is gone and he was 19 years old. He left behind a little girl. He will never see his daughter grow up, never hear her say her first words, watch her take her first steps. She will never know the sound of his voice. All she will have is a box of pictures of a 19 years old father that she will never know and all for what? So sad.
While defendant is correct that a prosecutor may not seek a verdict based
upon an appeal to the emotions of the jury, that is not automatic grounds for
reversal, particularly where, as here, no objection was made. State v. Williams,
113 N.J. 393, 448-56 (1988).
Here, the first set of remarks addressed defendant's statement to Cooper
and the circumstances of Randolph's death, as testified to by Kellam and
depicted in the compilation video. As such, they contained fair comment based
on the evidence and were not simply a bare appeal to emotion. That said, we do
disapprove of counsel's two rhetorical questions about "what kind of person
36 A-1628-18 would commit such acts?" as being a propensity-based argument contrary to
N.J.R.E. 404(b). However, we are unpersuaded the rhetorical queries, which
drew no objection, rendered the jurors incapable of deciding the case based on
the evidence.
Although the second set of remarks did reference Randolph's personal life
and the sad consequences of his murder were improvident, they were fleeting
enough so as not to have deprived defendant of a fair trial in light of the
substantial evidence against him. As such, we reject this portion of defendant's
argument as well.
Lastly, defendant contends for the first time that the prosecutor
improperly used the fact that defendant was found with a gun at the time of his
arrest to establish that defendant committed the crimes for which he was
presently on trial. The passages cited by defendant read as follows:
[T]his case has a lot of pieces . . . that all work together to come to the ultimate outcome that it's come to and I want to talk about that a little bit, or just a couple of the key things down right here.
Well, there's a video of him there. [Kellam] says he saw him do it. When the cops got to his house he was hiding in a boiler room with a gun and when he was back there he said, I did that shit and I'm going to get away with that shit.
37 A-1628-18 Where was the defendant when the cops came? Why didn't he answer the door? Was he on the couch surprised [by] . . . the officers' arrival? Was he watching TV with his brother? . . . No, he was in the closet hiding with a gun. He was there to fix the boiler. I bet.
Why was he hiding in that closet? Because he didn't want the officers to find him. Why did he not want the officers to find him? Because he did that shit and he's trying to get away with that shit.
While he was being arrested, and you heard Detective Perales testify that he got in there, saw [defendant] hiding in the corner, told him to put his hands up. He put one hand up, the other one he was a little hesitant and like Perales said, action is faster than reaction. He has to go home at night. He grabbed him, he threw him to the floor because he saw that gun.
Although defendant now insists that the prosecutor's comments exceeded
the limited basis on which the trial court admitted the gun evidence, we disagree.
The first four paragraphs quoted above do not mention the gun, and the last
paragraph is proper comment on the circumstances of defendant's arrest. As to
the other two paragraphs, which also addressed the circumstances of defendant's
arrest, the thrust of the prosecutor's comments was that defendant was hiding
because he was conscious of his guilt. Although the mention of the gun in this
context was arguably gratuitous, it appears the prosecutor was not suggesting
that defendant was found with the gun involved in this case. As such, and
38 A-1628-18 because the jury was repeatedly instructed that the gun in the boiler room was
not the murder weapon, and that mention of the gun was only made to clarify
the circumstances of defendant's arrest, we reject this aspect of defendant's
argument.
In light of the foregoing, and given that the jury was generally instructed
that counsel's remarks in closing were not evidence, we reject defendant's
contention that he was denied a fair trial as a result of prosecutorial misconduct
during summation.
III.
We turn briefly to the additional points made in defendant's brief.
A. (Gang Affiliation Testimony and Limiting Instruction)
We reject defendant's argument that the trial court unfairly admitted
evidence that he and other participants in the events leading up to and at the
shooting were members of rival street gangs. Although evidence of gang
membership often should be excluded from criminal trials under N.J.R.E. 403
because of its potential inflammatory impact, see State v. Goodman, 415 N.J.
Super. 210, 228-31 (App. Div. 2010), that general preference for exclusion is
overcome by the inherent nature of this case: a killing allegedly motivated by a
previous gang killing. The jurors were reasonably informed of the gang
39 A-1628-18 affiliation evidence to understand the case. The court also provided a sensible
and fair limiting instruction to the jurors to guide their consideration of such
evidence.
B. (Authentication of the Surveillance Video)
We are satisfied Detective Hamdeh supplied an adequate foundation to
admit the composite surveillance video. The rational foundation required for
authentication under N.J.R.E. 901 was established, see State v. Hannah, 448 N.J.
Super. 78, 88 (App. Div. 2016), even though Hamdeh did not personally create
the composite DVD. The composite was a fair practical alternative to forcing
the jurors to watch hours of original footage from multiple surveillance cameras.
See N.J.R.E. 1006 (allowing summaries of voluminous evidence). The likely
reasons for variations in certain time stamps was reasonably explained.
C. (Jury Access to the Video During Deliberations)
Defendant was not deprived of a fair trial by the jury's access to the
compilation video in the jury room. Because the video had no audio track, it
contained no testimony or statements, and therefore the holding of State v. A.R.,
213 N.J. 542, 558-61 (2013), disapproving of unfettered access to "audio or
video-recorded statements in the jury room during deliberations" is not on point.
40 A-1628-18 (Emphasis added). Moreover, the court reasonably granted the jury's request to
play back eight portions of the video in the courtroom, and duly instructed the
jurors not to give such evidence undue weight.
D. (Cumulative Trial Error)
We reject defendant's claim he is entitled to a new trial based on alleged
cumulative error under State v. Orecchio, 16 N.J. 125, 129 (1954). The alleged
errors at this hard-fought trial were either not errors at all, or they were
insignificant enough so as to not require a new trial. And, as we have already
pointed out, a number of the claimed matters of undue prejudice emanated from
defense counsel's own actions that opened the door to additional proofs by the
State.
E. (Sentencing)
Lastly, we reject defendant's argument that his aggregate sentence was
excessive, and that the trial court unfairly imposed sentences that were made
consecutive to the murder conviction. Defendant has not demonstrated the court
abused its discretion in identifying and weighing the aggravating factors for this
brutal homicide documented by evidence that he stood over a helpless victim
and shot him again. See State v. Case, 220 N.J. 49, 65 (2014). The consecutives
41 A-1628-18 sentences for the offenses against the three victims (decedent Randolph and the
two survivors, Kellam and Daniels) are justified under State v. Yarbough, 100
N.J. 627, 643-44 (1985). We discern no reason to remand for the trial court to
further consider the overall fairness of the sentence.
IV.
To the extent we have not addressed them, all other points raised on appeal
lack sufficient merit to warrant comment. R. 2:11-3(e)(2).
Affirmed.
42 A-1628-18