NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0432-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY FIELD, a/k/a ANTHONY LEE HOWARD FIELD, and ANTHONY HOWARD FIELDS,
Defendant-Appellant. ______________________________
Submitted November 18, 2019 – Decided August 13, 2020
Before Judges Messano, Vernoia, and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 14-09-2290.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia H. Blum, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Anthony Field appeals from his conviction and aggregate
ninety-nine-year sentence for a 2013 Christmas morning shooting that left three
victims dead and two others injured. Based on our review of the record, we
reject defendant's claims the court erred in its jury instruction on flight, by
admitting testimony from a police detective, and in imposing sentence, and we
affirm.
I.
Just past midnight on the morning of December 25, 2013, Woodley Daniel
stood in the vestibule entryway of Slick's GoGo Bar (Slick's) in Irvington.
Daniel worked security at the bar's front door and collected cover charges from
its patrons. He became involved in a physical altercation with a prospective
customer, later identified as Muhammad Bogar, that spilled out onto the street.
Multiple gunshots were fired by a single perpetrator, leaving Daniel and two
others dead and injuring two of the bar's patrons. During the ensuing police
investigation, multiple witnesses identified defendant as the shooter.
A grand jury indicted defendant for three counts of first-degree purposeful
or knowing murder, N.J.S.A. 2C:11-3(a)(1) (counts one, two and three); two
counts of first-degree kidnapping, N.J.S.A. 2C:13-1(a) (counts five and six); two
A-0432-17T4 2 counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts
seven and eight); first-degree carjacking, N.J.S.A. 2C:15-2(a)(1) (count four);
fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4)
(count nine); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b) (count ten); and second-degree unlawful possession of a handgun for an
unlawful purpose, N.J.S.A. 2C 39-4(a) (count eleven). 1
The trial evidence showed Pierre Clervoyant, Sr. (Clervoyant, Sr.) was
one of Slick's owners. On December 24, 2013, Clervoyant, Sr., his son, Pierre
Clervoyant, Jr. (Pierre), and Camille Hedge tended bar while Daniel worked at
the bar's front door.2 The door opened to a vestibule, which had a second door
that opened into the bar. Once in the vestibule, patrons walked through a metal
detector and were patted down by Daniel. There were surveillance cameras
inside and outside the bar, which worked and recorded on December 24 and 25,
2013.
1 Prior to trial, the court granted the State's motion to amend count four to charge a violation of N.J.S.A. 2C:15-2(a)(2), and counts five and six to charge violations of N.J.S.A. 2C:13-1(b)(1). 2 Because Pierre Clervoyant, Sr. and Pierre Clervoyant, Jr. share a surname, we refer to Pierre Clervoyant, Jr. as Pierre for clarity and to avoid confusion. We intend no disrespect by this informality.
A-0432-17T4 3 Late in the evening on December 24, 2013, defendant entered the bar with
Imani Sapini and a man Sapini knew as NuNu. Sapini was a friend of defendant,
who Sapini knew by the name Bullet. 3 Sapini was scheduled to perform as a
singer at the bar. After spending some time in the bar, she exited through the
front door to smoke, heard gunshots, and ran. At trial, Sapini testified she did
not see defendant with a gun that evening and did not see the shooter. When
asked whether she tried to "take a look at the shooter, to see who might
be . . . pulling the trigger," she responded "No, . . . I didn't. I just ran." She
testified that, on the night of the incident, defendant wore a hat and a jacket with
a gray stripe on the shoulder.
Following a Gross4 hearing, portions of a December 31, 2013 statement
Sapini gave to the police were played for the jury. In the statement, Sapini said
that after the shooting, she saw defendant run toward Bogar's car with a small
3 The parties stipulated defendant's high school football coach gave him this nickname because of his quickness, and the judge read the stipulation to the jury, informing them they "should not draw any conclusion or inferences from this nickname." 4 A Gross hearing is a N.J.R.E. "104 hearing . . . the trial court conducts to determine the admissibility of a witness's inconsistent out-of-court statement -- offered by the party calling that witness -- by assessing whether the statement is reliable. See State v. Gross, 121 N.J. 1, 10 (1990)." State v. Greene, ___ N.J. ___, ___ n.2 (2020) (slip op. at 10). A-0432-17T4 4 black gun, possibly a nine-millimeter handgun, in his hand. According to her
statement, after the shooting she and Bogar entered Bogar's car first, and Bogar
told defendant he could not get in the car "[b]ecause of what just happened."
Sapini explained that defendant nevertheless entered the back seat of the car,
"and that's when he put [the gun] to [Bogar's] head, and told [Bogar] that he had
to take [defendant] and drop him off."
Bogar knew defendant and Sapini prior to the incident. He testified that
he and two friends, Mu Trills 5 and Mushir Cureton, went to the bar to see Sapini
perform. Bogar drove Trills and Cureton to the bar and parked his car around
the corner. A surveillance video recording shows Bogar and his friends arriving
at the bar at 12:26 a.m.
Bogar testified Sapini told him he would not have to pay the cover charge
to enter the bar because Sapini was performing. According to Bogar, when he
and his two friends arrived at the bar, Trills entered first, went through the metal
detector, was patted down, and was admitted without paying the cover charge.
5 The police were unable to locate the individual identified as Mu Trills during their investigation. No one identifying themselves as Mu Trills testified at trial.
A-0432-17T4 5 Daniel then patted Bogar down and told him he had to pay the cover charge. 6
Bogar argued with Daniel about the payment, and Bogar testified Daniel then
"start[ed] pushing [him], tussling, [and they] started tussling inside the hallway. "
Bogar explained that during the altercation, Daniel grabbed Bogar by his
hair, and he and Bogar hit each other. Bogar was pushed out the front door onto
the street, where he pulled away from Daniel and heard shots fired. Bogar saw
defendant shooting a black gun, and Bogar ran to his car.
Bogar explained that after arriving at his car, he started the engine and
Sapini appeared, entered the car, and sat in the front passenger seat. Defendant
appeared next, opened the rear door, and got in the car, but Bogar told defendant
he would not take him anywhere because defendant "just shot them people."
Defendant pointed a gun at Bogar, started cursing at him and told him to "drive."
Bogar drove away, dropped defendant off at another location, and then dropped
off Sapini. Bogar testified he did not have any weapons with him that evening.
6 Bogar referred to the individual who required he pay the cover charge and with whom he had the physical altercation as the "bouncer." It is undisputed the individual was Daniel.
A-0432-17T4 6 Three days later, Bogar gave a statement to the Essex County Prosecutor's
Office. Bogar was shown two photo arrays, and he identified defendant's
photograph in the second array as the individual who was the shooter.
At trial, Bogar acknowledged that, at the time of the shooting, he was a
member of a street gang, but he denied knowing whether Sapini was also a
member. He also denied speaking with Sapini during the three years following
the shooting and prior to trial. He denied having had any contact with Trills
following the incident, but he admitted he told the police Trills said he did not
want to be involved with the investigation.
Ravin Neal, a dancer at Slick's, also testified at trial, explaining she was
about to go outside to smoke when she saw Daniel frisk a man at the front door
and argue with him because the man did not want to leave his weapon outside.
Neal saw Daniel "tussling" with the man and his friend, who Neal identified as
one of the decedents. Neal also saw Pierre jump over the bar and join in the
scuffle, which moved out of the vestibule and onto the street. As Neal stood in
the doorway, she saw a young man in the middle of the street come toward
towards the bar door, "and [he] started shooting."
Neal testified the shooter was alone, had a gun in his hand, and was in the
middle of the street walking toward the bar while shooting. According to Neal,
A-0432-17T4 7 prior to the shooting, the man was in a car parked near the bar. Neal testified
that after he got out of the car, the man went to the middle of the street and shot
Daniel, Pierre, and a third man. Neal further testified she stood there for a "good
minute," looked at the shooter's face, and was certain the shooter was not the
person with whom Daniel tussled at the door.
On December 25, 2015, Neal gave a statement to the police, explaining
the shooter wore a hat and she would be able to identify him again. Two weeks
later, Neal selected defendant's photograph from an array "as being the shooter
who was outside [the bar]." Neal did not want to sign her name on the
photograph when she made the identification, but the photo array identification
procedure was played for the jury. Neal identified defendant as the shooter at
trial.
Guenson Adolphe, Pierre's friend and a regular patron of the bar, arrived
at about 8:00 p.m. He left the bar, and, when he later returned, he saw Daniel
fighting with a man near the bar's front door. Adolphe believed the argument
started because the man did not want to be patted down. Adolphe testified the
man fighting with Daniel was slim and had dreadlocks.
Adolphe saw Daniel grab the man and attempt to escort him out the door,
and the two men tussled inside the vestibule and swung at each other. Adolphe
A-0432-17T4 8 saw Pierre jump over the bar to try to break up the fight, and Adolphe also
attempted to break up the fight. The fight spilled onto the street, and Adolphe
"followed everyone outside the bar as well."
Adolphe testified that once outside, "he saw an individual, [and] the barrel
of the gun pointing at [him]." He heard the shooter say "I'm going to kill all
y'all." Adolphe put his hands up and was shot in the forearm. He landed on the
ground facing the bar with his back to the street, and he "played dead." He heard
several more gunshots and was shot in his left foot. After the shooting ended
and "people started coming out" of the bar, Adolphe stood up and a friend drove
him to the hospital. The police first interviewed Adolphe on December 26,
2013, after his admission to the hospital. He told the police that he believed a
friend of the man who fought with Daniel was the shooter, and that the shooter
also had dreadlocks. On January 15, 2014, Adolphe was questioned a second
time, and he said the shooter was 5'6" or 5'7" tall, with light brown skin, a
"Sunni-style" beard, and dark clothing. Adolphe was shown two photo arrays,
and he selected defendant's photograph and identified defendant as the shooter.
Adolphe also identified defendant as the shooter at trial.
Richard Duvivier was also at the bar when the shooting occurred. He
testified that at around 12:30 a.m., he saw an altercation between Daniel and a
A-0432-17T4 9 man at the front door, and he saw Pierre jump over the bar and head toward the
door. Duvivier followed Pierre to the door, where he saw Daniel on top of a
man, trying to restrain him. Duvivier heard multiple gunshots and saw the
shooter fire at Daniel. Duvivier was shot in the ankle and the arm.
On the day following the incident, Duvivier gave a statement to the police
in which he described the shooter as being 5'6" or 5'7" tall, light-brown skin,
with a "Sunni-style" beard, short hair, dark clothing, a burgundy shirt, and
possibly a skully or hat. Duvivier said the gunman shot Daniel first and he
assumed the shooter had arrived at the bar with the man who was involved in
the altercation with Daniel. Two days after his initial statement, Duvivier
identified defendant in a photo array as the shooter.
Khaalia Mumford lived with defendant in December 2013 and is the
mother of his children. She testified that on the night of the incident, defendant
wore a black sweater with a gray stripe down the sleeve and black khaki pants
with big pockets. At trial, Mumford identified defendant on the bar's
surveillance recordings at different times during the incident and identified
defendant in still photographs from the surveillance recordings.
Mumford also testified defendant arrived at their home in the early
morning on December 25, 2013 and told her, "[he] may be in trouble." He then
A-0432-17T4 10 left and returned around noon with gifts for their children. Defendant left shortly
after the children opened their gifts, and Mumford had not heard from him since
that day. She later learned defendant went to Florida, but she was unaware he
had plans to travel there.
After the shooting, Daniel and Cureton were found unresponsive and were
pronounced dead at the scene. Cureton suffered six gunshot wounds, including
wounds to the face, chest, back, right arm, and right hand. Daniel suffered three
gunshot wounds—to his head, right forearm, and right hip. Daniel and Cureton
shared the same cause of death: multiple gunshot wounds.
Pierre was in and out of consciousness when the police arrived and was
later pronounced dead at the hospital. It was determined his cause of death was
three gunshot wounds to his lower back and buttocks.
Duvivier suffered two gunshot wounds, was in the hospital for three days,
and continued to see a doctor as an outpatient for one-and-a-half years. As a
result of his injuries, Duvivier has difficulty walking, and, at the time of trial,
he could not rotate his arm.
Adolphe was in the hospital for three days as a result of the gunshot
wounds to his right arm, right hand, and left foot. He had surgery o n his foot
about three to four months after the incident and used crutches for six months
A-0432-17T4 11 thereafter. As a result of his injuries, Adolphe has no feeling in his right hand
and pain in his left foot during cold weather, and he was forced him to drop out
of the state corrections academy.
Ten shell casings and a partial bullet fragment from a .45 caliber
semiautomatic pistol were recovered from outside the bar. No gun was ever
recovered. On January 28, 2014, law enforcement arrested defendant in Florida
and returned him to New Jersey.
The jury convicted defendant of the murder of Daniel as charged in count
two and the lesser-included offenses of aggravated manslaughter of Pierre and
Cureton under counts one and three respectively. The jury also convicted
defendant of the lesser-included offenses of third-degree aggravated assault by
causing bodily injury with a deadly weapon to Duvivier (count seven) and
Adolphe (count eight); of second-degree unlawful possession of a handgun
(count ten); and of second-degree possession of a weapon for an unlawful
purpose (count eleven). The jury found defendant not guilty of kidnapping
Bogar (count five) and Sapini (count six) and of carjacking Bogar (count four).
The court sentenced defendant to forty-five years on the murder
conviction subject to the requirements of the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. The court sentenced defendant to twenty-seven years for
A-0432-17T4 12 the aggravated manslaughter of Pierre and eighteen years for the aggravated
manslaughter of Cureton, with each sentence subject to NERA's requirements.
The court sentenced defendant to four-and-one-half years on each of the
aggravated assault convictions. The court merged the weapons offenses with
defendant's murder conviction. The court ordered that the sentences be served
consecutively, resulting in an aggregate sentence of ninety-nine years with a
seventy-six-and-one-half-year period of parole ineligibility pursuant to NERA. 7
This appeal followed.
Defendant offers the following arguments for our consideration:
POINT I
THE INSTRUCTION ON FLIGHT AS CONSCIOUSNESS OF GUILT WAS UNCONSTITUTIONAL BECAUSE IT SHIFTED THE BURDEN OF PROOF FROM THE STATE TO THE DEFENDANT.
POINT II
IT WAS REVERSIBLE ERROR FOR THE DETECTIVE TO GIVE HIS OPINION ON THE ULTIMATE ISSUE IN THE CASE AND TESTIFY THAT, HAVING VIEWED THE SAME VIDEO AS THE JURY, HE HAD IDENTIFIED THE PERSON "WHO MURDERED THE PEOPLE AT SLICK' S."
7 The court later entered an amended judgment of conviction reflecting a fifteen- year period of parole supervision following defendant's release from incarceration. A-0432-17T4 13 POINT III
THE IMPOSITION OF FIVE CONSECUTIVE TERMS, AMOUNTING TO A SENTENCE OF 99 YEARS, WITH A PAROLE DISQUALIFIER OF 76 1/2 YEARS, IS A DE FACTO TERM OF LIFE WITHOUT PAROLE. IT WAS IMPOSED WITHOUT SERIOUS CONSIDERATION OF DEFENDANT'S YOUTH AND ON QUESTIONABLE FACTUAL FINDINGS, IS GROSSLY EXCESSIVE FOR THIS TEENAGER, AND AMOUNTS TO CRUEL AND UNUSUAL PUNISHMENT.
II.
A.
Defendant objected to the State's request for a jury instruction on flight as
consciousness of guilt. The court overruled the objection and, during the charge
conference, addressed with counsel the substance of the flight charge. As part
of the court's final charge to the jury, it included the model jury instruction on
flight.8 See Model Jury Charges (Criminal), "Flight" (rev. May 10, 2010).
Defendant did not object to the substance of the charge as instructed by the court.
8 The court deviated from the model jury charge by including a sentence distinguishing the jury's consideration of flight as evidence of consciousness of guilt and flight as an element of the kidnapping offense for which defendant was charged. Defendant does not challenge the inclusion of the sentence, or the distinction it made, on appeal. A-0432-17T4 14 "The appropriate time to object to a jury charge is 'before the jury retires
to consider its verdict.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting
R. 1:7-2). Where a defendant fails to object to a jury charge at trial, we review
for plain error and "disregard any alleged error 'unless it is of such a nature as
to have been clearly capable of producing an unjust result.'" Ibid. (quoting R.
2:10-2). "To warrant reversal . . . , an error at trial must be sufficient to raise 'a
reasonable doubt . . . as to whether the error led the jury to a result it otherwise
might not have reached.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361
(2004)).
For the first time on appeal, defendant claims the flight instruction
improperly shifted the burden to him to prove the reason for his flight and to
"disprove flight in order to avoid the damaging consciousness-of-guilt
inference." Defendant also argues the court erred by giving the flight instruction
prior to instructing the jury on the substantive offenses, including the State 's
burden of proving the elements of the offenses charged beyond a reasonable
doubt. We find defendant's arguments are without sufficient merit to warrant
discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief
comments.
A-0432-17T4 15 The court's flight charge was comprised of a nearly verbatim restatement
of the model jury charge, which is consistent with our Supreme Court's standard
for an instruction on "the inferences the jury may draw" from evidence of flight
as consciousness of guilt. State v. Mann, 132 N.J. 410, 420 (1993). As the
Court explained in Mann, an instruction on flight requires the jury "first . . . find
that there was a departure, and then to find a motive for the departure . . . that
would turn the departure into flight." Id. at 421. The Court further explained
that if the defendant "offers an explanation for the departure, the trial court
should instruct the jury that if it finds the defendant's explanation credible, it
should not draw any inference of the defendant's consciousness of guilt from the
defendant's departure." Ibid.
The model jury charge is in precise accord with the Court's instructions in
Mann, and, contrary to defendant's claim, the charge did not expressly or
implicitly impose any burden of proof on defendant or any requirement that he
disprove anything. The instruction merely explained the manner in which the
jury should consider the evidence, but only if it first determined "defendant,
fearing that an accusation or arrest would be made against him on the charge
involved in this indictment, took refuge in flight for the purpose of evading the
accusation or arrest." See, e.g., State v. Randolph, 228 N.J. 566, 594-95 (2017)
A-0432-17T4 16 (explaining "[f]light will have 'legal significance' if the circumstances
'reasonably justify an inference that it was done with a consciousness of guilt '"
(quoting State v. Ingram, 196 N.J. 23, 46 (2008))); see also State v. Latney, 415
N.J. Super. 169, 175-76 (App. Div. 2010) (same). The instruction did not
impose any burden on defendant or define any elements of the offenses for
which he was charged.
In reviewing the adequacy of a court's charge to the jury, we must consider
the charge as a whole in determining whether it is prejudicial. See State v.
Figueroa, 190 N.J. 219, 246 (2007). As part of its final charge to the jury, the
court repeatedly stated the State has the burden of proving the elements of the
offenses charged beyond a reasonable doubt and that the burden "never shifts to
[ ] defendant." There is nothing in the court's flight instruction suggesting
anything to the contrary.
We therefore find no error in the model jury charge or in the court's use
of it to instruct the jury on flight as consciousness of guilt. See State v.
Montalvo, 229 N.J. 300, 320 (2017) (finding where a defendant does not object
to the charge, "'there is a presumption that the charge was not error and was
unlikely to prejudice . . . defendant's case'" (quoting State v. Singleton, 211 N.J.
157, 182 (2012))); State v. Whitaker, 402 N.J. Super. 495, 513-14 (App. Div.
A-0432-17T4 17 2008) ("When a jury instruction follows the model jury charge, although not
determinative, 'it is a persuasive argument in favor of the charge as delivered.'"
(quoting State v. Angoy, 329 N.J. Super. 79, 84 (App. Div. 2000))); see also
State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003) (finding no error
in a jury charge reciting verbatim a model jury charge consistent with New
Jersey precedent).
B.
During the presentation of the State's case, Newark Police homicide
detective Murad Muhammad testified about the investigation leading to
defendant's arrest. Early in the investigation, Muhammad reviewed surveillance
recordings from Slick's that "contain[ed] the actual shooting." During the
playing of one of the recordings at trial, the prosecutor questioned Muhammad
as follows:
PROSECUTOR: Now, Detective, you've viewed this video before; correct?
MUHAMMAD: Yes.
PROSECUTOR: Were you able to make any sort of determination with regards to the shooter, upon your viewing of this video?
A-0432-17T4 18 PROSECUTOR: And can you tell us what . . . some determinations that you made with regard to this particular video. Of the shooter.
....
PROSECUTOR: What determinations did you make, Detective?
MUHAMMAD: The identity of the -- who the shooter was.
PROSECUTOR: Identity in what sense? MUHAMMAD: Who murdered the people at Slick's.
PROSECUTOR: And is that by the body type?
DETECTIVE MUHAMMAD: Yes.
Defendant argues the recordings were of poor quality; Bogar's, Neal's,
Adolphe's, and Duvivier's identifications of him as the shooter "were less than
rock-solid"; and the State impermissibly buttressed its case by having
Muhammad testify he identified defendant as the shooter. Defendant claims
Muhammad's testimony constituted either inadmissible lay opinion, see N.J.R.E.
701, or expert opinion, see N.J.R.E. 702, because it constituted an opinion
concerning defendant's identity and guilt.
We review a trial court's ruling on the admissibility of evidence for an
abuse of discretion. State v. Buckley, 216 N.J. 249, 260 (2013). Where, as here,
defendant did not object to the challenged testimony, if the evidence was
A-0432-17T4 19 admitted in error we also must determine whether its admission is "plain error.
We may reverse on the basis of unchallenged error only if the error was 'clearly
capable of producing an unjust result.'" See State v. Ross, 229 N.J. 389, 407
(2017) (quoting R. 2:10-2). "To warrant reversal . . . an error at trial must be
sufficient to raise 'a reasonable doubt . . . as to whether the error led the jury to
a result it otherwise might not have reached.'" Funderburg, 225 N.J. at 79
(citation omitted) (quoting Jenkins, 178 N.J. at 361).
Defendant's argument is based on the inaccurate factual premise that
Muhammad opined defendant was the shooter and was guilty. A plain reading
of the questions posed by the prosecutor and Muhammad's responses
demonstrates otherwise. Neither the prosecutor nor Muhammad mentions
defendant; Muhammad does not identify defendant on the video recording or
otherwise as the shooter; and Muhammad does not opine on defendant's guilt.
We also reject defendant's claim that despite the lack of any reference to
defendant as the shooter, "the sole and inexorable inference from the detective's
testimony that he identified the shooter was that he had determined it was "
defendant. The argument is undermined by the record.
The prosecutor inquired about Muhammad's investigation and whether,
based on his review of the recording, he made "any determinations with regards
A-0432-17T4 20 to the shooter." Muhammad explained he made a determination as to "the
identity of the . . . shooter," but the prosecutor did not ask if Muhammad
identified a particular person as the shooter and Muhammad never said he
identified defendant or anyone else as the shooter. To the contrary, the
prosecutor asked only "in what sense" had Muhammad determined the "identity"
of the shooter, and Muhammad vaguely explained it was "by the body type."
Muhammad did not suggest his determination about the shooter's body type
resulted in defendant's identification or that he relied on the determination to
take any other actions during the investigation. Cf. State v. Lazo, 209 N.J. 9,
21-22 (2012) (finding improper detective's testimony explaining why he put a
defendant's photo in an array because it "enhanced the victim's credibility and
intruded on the jury's role").
In sum, we are not convinced Muhammad's vague reference to his
determination concerning the identity of the shooter by his or her body type
constituted an opinion concerning defendant's identity as the shooter,
defendant's guilt, or anything else. He testified he made a determination, but he
did not explain it in any discernable manner related to defendant, and he did not
offer any opinions based on it. Thus, we find no abuse of discretion in the court's
admission of the testimony.
A-0432-17T4 21 Moreover, even accepting defendant's claim Muhammad's testimony may
have been interpreted in some inexplicable manner as an opinion about
defendant's identity or guilt, we do not find its admission raises "a reasonable
doubt as to whether the error led the jury to a result it otherwise might not have
reached." Ross, 229 N.J. at 407.
Defendant correctly argues identification was the central issue at trial, but
the identification evidence against him was overwhelming. Defendant was
separately and independently identified as the shooter by four different
witnesses, one of whom knew defendant prior to the shootings. In her statement
to the police following the shooting, Sapini, who arrived at the bar that evening
with defendant, explained that defendant, armed with a handgun, entered
Bogar's car immediately following the shooting. Defendant was also identified
on the video recordings by the mother of his children, and the jury was able to
review the recordings during the trial. Muhammad's vague testimony about a
determination he made about the shooter's body type added nothing, and the
testimony, even if improper, does not raise reasonable doubt that its admission
led to a result the jury would not have otherwise reached. See Ross, 229 N.J. at
407; R. 2:10-2.
A-0432-17T4 22 C.
Defendant argues his aggregate ninety-nine-year sentence is excessive,
constitutes a de facto life sentence, and is an unconstitutional cruel and unusual
punishment. He contends the court erred by failing to consider his age—
nineteen—in its sentencing determination, and by failing to apply the standards
for imposition of consecutive sentences established in State v. Yarbough, 100
N.J. 627 (1985).
Our review of a court's sentencing decision "is relatively narrow and is
governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283,
297 (2010). We "must affirm the sentence of a trial court unless: (1) the
sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were not 'based upon competent credible evidence in the
record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]
the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).
We are further "bound to affirm a sentence, even if [we] would have
arrived at a different result, as long as the trial court properly identifies and
balances aggravating and mitigating factors that are supported by competent
A-0432-17T4 23 credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
An appellate court should modify a sentence "only when the trial court's
determination was 'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990)
(quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).
Defendant argues that, because he was nineteen years old when he
committed the offenses for which he was convicted, the sentencing court was
required to apply the principles established in Miller v. Alabama, 567 U.S. 460
(2012), and State v. Zuber, 227 N.J. 422 (2017), for the determination of a
juvenile's sentence that is "the practical equivalent of life without parole,"
Zuber, 227 N.J. at 429. We reject the argument because Miller and Zuber
considered sentencing principles applicable to juveniles, and defendant was an
adult when he committed the murder, two aggravated manslaughters, and two
aggravated assaults for which he was convicted and sentenced. See N.J.S.A.
2A:4A-22(a) (defining, under the Code of Juvenile Justice, a "[j]uvenile" as "an
individual who is under the age of 18 years"). The principles addressed and
established in Miller and Zuber are inapposite here.
Although the court correctly rejected defendant's reliance on Miller and
Zuber, it nonetheless considered defendant's age and the Zuber factors in its
sentencing decision. In Zuber, the Court explained that a court determining
A-0432-17T4 24 whether to impose a lengthy term of imprisonment for a juvenile "should
consider factors such as [the] defendant's 'immaturity, impetuosity, and failure
to appreciate risks and consequences'; 'family and home environment'; family
and peer pressures; 'inability to deal with police officers or prosecutors' or his
own attorney; and 'the possibility of rehabilitation.'" 227 N.J. at 453 (quoting
Miller, 567 U.S. at 478).
Here, the court addressed defendant's "chronological age and its hallmark
features[,]" Zuber, 227 N.J. at 445 (quoting Miller, 576 U.S. at 477), noting
defendant's "immaturity, impetuosity, and failure to appreciate risks and
consequences" and that, at age nineteen, defendant made decisions he would not
make with more "worldly experience." The court also considered defendant's
family environment and family and peer pressures, see ibid., concluding
defendant's family environment appeared "entirely solid" and there was no
evidence family or peer pressure played any part in defendant's crimes. To the
contrary, the judge found defendant's "independent act or decision to . . . rachet
it up into a homicidal act was that in the mind of [defendant] . . . alone."
The court further found defendant's actions suggested a level of "some
sophistication," explaining defendant left the jurisdiction following the
shootings. The court also addressed defendant's prospect for rehabilitation,
A-0432-17T4 25 explaining that was the "only factor that really mitigates in any significant form
towards [defendant]" because, as a young man, rehabilitation is "more likely to
occur as [a] . . . youthful offender ages and neurological development
increases." Thus, contrary to defendant's contention, the court considered
defendant's age, characterizing it as "a non-statutory mitigating factor," and
defendant's potential for rehabilitation in its sentencing calculus. 9
In addition to its consideration of defendant's age, the court found and
weighed the aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and
(b). The court's findings are supported by the record. Bolvito, 217 N.J. at 228
(explaining a court's finding of aggravating and mitigating factors must be
supported by competent record evidence). The court found aggravating factor
three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3).
9 Although age is not distinctly identified as a factor to be considered under our sentencing statutes, see, e.g., N.J.S.A. 2C:44-1(a) and (b), a court may properly consider a defendant's age in its assessment of mitigating factors two, "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2); four, "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense," N.J.S.A. 2C:44-1(b)(4); eight, "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8); and thirteen, "[t]he conduct of a youthful defendant was substantially influenced by another person more mature than the defendant," N.J.S.A. 2C:44-1(b)(13). Here, however, defendant presented no evidence, other than he was nineteen when the crimes were committed, supporting a finding of any of these mitigating factors.
A-0432-17T4 26 As noted by the sentencing court, the factor is supported by evidence showing
defendant's prior minor brush with the law—a 2013 municipal court
conviction—did not dissuade him from committing the knowing and purposeful
murder, aggravated manslaughters, aggravated assaults, and weapons offenses
for which he was convicted. Although the court did not expressly correlate
defendant's failure to accept any responsibility for his actions and lack of any
remorse as a basis for its finding of aggravating factor three, those facts also
support its finding there is a risk defendant will commit another offense. See
State v. Carey, 168 N.J. 413, 427 (2001) (finding defendant's failure to accept
responsibility for his crimes "does not irrefutably prove that [the] defendant is
likely to re-offend, but it does provide support for" such a conclusion).
The evidence also supports the court's finding of aggravating factor nine,
the need to deter defendant and others from violating the law, N.J.S.A. 2C:44 -
1(a)(9). The court found there was a need for general and specific deterrence
because defendant engaged in gun violence, caused the death of three
individuals, and caused long-lasting injuries to two others. The court correctly
noted that the need for deterrence increases proportionately with the degree of
the offenses for which a defendant is sentenced, and that defendant committed
the most serious crime found in our Criminal Code, knowing and purposeful
A-0432-17T4 27 murder, as well as two aggravated manslaughters and two aggravated assaults.
See Carey, 168 N.J. at 427; see also State v. Megargel, 143 N.J. 484, 501 (1996)
("[D]emands for deterrence are strengthened in direct proportion to the gravity
and harmlessness of the offense and the deliberateness of the offender." (citation
omitted)).
The court further appropriately considered "defendant's role in the
incident to determine" there was a "need to deter him from further crimes and
the corresponding need to protect the public from him." Megargel, 143 N.J. at
501. "As the Court has held, '[t]he paramount reason we focus on the severity
of the crime is to assure the protection of the public and the deterrence of ot hers.
The higher the degree of the crime, the greater the public need for protection
and the more need for deterrence.'" State v. Fuentes, 217 N.J. 57, 74 (2014)
(alteration in original) (quoting Megargel, 143 N.J. at 500). Here, the number
and seriousness of the crimes defendant committed support the court's finding
of aggravating factor nine.
The court found mitigating factor seven, defendant has no prior history or
prior delinquency or criminal activity and lead a law-abiding life for a
substantial period of time prior to the commission of the present offenses,
N.J.S.A. 2C:44-1(b)(7). The court explained that but for his municipal court
A-0432-17T4 28 conviction, defendant had led a law-abiding life, and concluded defendant's
record supported a finding of the factor.
The court's weighing of the factors also finds support in the record. The
court weighed defendant's age and "lack of . . . criminal sophistication" against
the need for general and specific deterrence, to which the court assigned heavy
weight. The court further found the aggravating factors preponderated over the
mitigating factors. We discern no basis to "second guess" the court's findings
and determination, see Megargel, 143 N.J. at 494 ("Judges who exercise
discretion and comply with the principles of sentencing remain free from the
fear of 'second guessing.'" (citation omitted)), because they are supported by the
record.
We also find no abuse of the court's discretion in its imposition of the
terms of imprisonment for each of the offenses. The court's finding the
aggravating factors preponderate over the mitigating factors supported the terms
of imprisonment imposed for each of the offenses.
We reject defendant's assertion the court erred by imposing consecutive
sentences for the murder, two aggravated manslaughters, and two aggravated
assaults. Defendant argues that because the indictment charged defendant with
three counts of murder but the jury convicted him of only one count of murder,
A-0432-17T4 29 the jury found defendant had only one purpose—to kill Daniel—and therefore,
"the crimes and their objectives were not predominantly independent of each
other[.]" Defendant claims that "[b]y rejecting murder convictions for two of
the decedents and returning manslaughter verdicts for them, the jury concluded
that their deaths were the reckless byproduct of the singular objective to kill the
third victim." Moreover, defendant contends that his crimes were committed so
closely in time and place as to indicate a single period of aberrant behavior.
When a defendant receives multiple sentences of imprisonment "for more
than one offense, . . . such multiple sentences shall run concurrently or
consecutively as the court determines at the time of sentence." N.J.S.A. 2C:44-
5(a). The statute does not define when consecutive or concurrent sentences are
appropriate. In Yarbough, the Court set forth the following guidelines for
determining whether a consecutive sentence is appropriate:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
A-0432-17T4 30 (a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]
[100 N.J. at 643-44 (footnote omitted).]
"A sixth factor, which imposed 'an overall outer limit on the cumulation
of consecutive sentences for multiple offenses not to exceed the sum of the
longest terms,' was eliminated by the Legislature in a 1993 amendment to"
N.J.S.A. 2C:44-5(a). State v. Liepe, 239 N.J. 359, 372 n.4 (2019). The statute
now provides "[t]here shall be no overall outer limit on the cumulation of
consecutive sentences for multiple offenses." N.J.S.A. 2C:44-5(a).
A-0432-17T4 31 The court's imposition of consecutive terms for the murder, two counts of
aggravated manslaughter, and two counts of aggravated assault was based on a
reasoned application of the Yarbough standards. Although we find the court's
determination the crimes were not committed so closely in time as to indicate a
single period of aberrant behavior is not supported by the record, the court 's
other findings support its imposition of consecutive terms for what it found were
crimes involving "separate acts of violence or threats of violence" involving
"multiple victims." See, e.g., Carey, 168 N.J. at 427-28 (explaining a
consecutive sentence can be imposed even if a majority of the Yarbough factors
support concurrent sentences).
"[C]rimes involving multiple victims represent an especially suitable
circumstance for the imposition of consecutive sentences because the 'total
impact of singular offenses against different victims will generally exceed the
total impact on a single individual who is victimized multiple times.'" State v.
Molina, 168 N.J. 436, 442 (2001) (quoting Carey, 168 N.J. at 428). Thus, "the
multiple-victims factor is entitled to great weight and should ordinarily result in
the imposition of at least two consecutive terms when multiple deaths or serious
bodily injuries have been inflicted upon multiple victims by the defendant."
Carey, 168 N.J. at 429-30. As the Court has explained, a "core principle" in
A-0432-17T4 32 determining whether to impose consecutive sentences is that "by virtue of their
impact on multiple lives, crimes involving two or more victims are particularly
suited for the imposition of consecutive sentences." Liepe, 239 N.J. at 375. That
principle "resonates most clearly in cases in which a perpetrator intentionally
targets multiple victims" but it also applies in "cases in which . . . the defendant
does not intend to harm multiple victims but it is foreseeable that his or her
reckless conduct will result in multiple victims." Ibid. (quoting Carey, 168 N.J.
at 429).
Defendant caused the death of three individuals and bodily injury to two
others. The court correctly determined defendant's violent crimes committed
against five separate victims constituted separate crimes for which consecutive
sentences were appropriate. We are therefore satisfied the court's application of
the Yarbough factors and decision to impose consecutive sentences for the five
violent crimes for which defendant was convicted was supported by the record,
see, e.g., id. at 377-78 (finding three consecutive custodial sentences were
warranted where there were "injuries inflicted on multiple victims"); Carey, 168
N.J. at 430-31 (finding it "appropriate to impose consecutive sentences on
defendants" whose crimes "result in multiple deaths or multiple persons
sustaining serious personal injuries"), and not so wide of the mark as to require
A-0432-17T4 33 our intervention, see ibid. (applying abuse of discretion standard to review a trial
court's imposition of consecutive sentences).
The fairness of the overall sentence should be considered in reviewing the
imposition of consecutive sentences, State v. Sutton, 132 N.J. 471, 485 (1993),
and defendant argues his aggregate ninety-nine-year sentence should shock our
judicial conscience and constitutes cruel and unusual punishment. To be sure,
the court imposed a very long sentence, but the sentence's validity is not
measured by its length. A determination of whether a sentence shocks the
judicial conscience requires consideration of the court's "application of the
guidelines to the facts of [the] case." Fuentes, 217 N.J. at 70. The court properly
applied the sentencing guidelines to defendant's unspeakable and indiscriminate
gun violence that resulted in the death of three innocent victims and bodily
injury to two others. As the Court explained in Liepe, "defendant may spend
the rest of his life in jail[,]" however, the trial court's task "was not to ensure
defendant's eventual release, but to devise a sentence commensurate with
defendant's crimes." 239 N.J. at 379. Because the "consecutive terms do not
violate statutory or judicial guidelines for sentencing," and the aggregate term
imposed "do[es] not shock the judicial conscience[,]" we find the court did not
abuse its discretion. Ibid.
A-0432-17T4 34 Any other arguments made by defendant that we have not expressly
addressed are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(2).
Affirmed.
A-0432-17T4 35